Congress has progressively acted to restrict the release into the community of aliens convicted of certain crimes, beginning with amendments affecting aggravated felons in the Anti-Drug Abuse Act of 1988, Pub. L. 100-690, and the Immigration Act of 1990, Public Law 101-649. Congress extended these restrictions to other categories of crimes in the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208. Under prior law, criminal aliens who were referred to as deportable under former section 242 of the Immigration and Nationality Act (Act) generally could only be detained for a period of 6 months pending removal after the issuance of a final deportation order. This restriction has been removed. Pursuant to section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6), certain classes of aliens may be detained in the discretion of the Attorney General beyond the 90-day removal period, including aliens that the Attorney General determines constitute a risk to the community or are unlikely to comply with the order of removal.

As a result of this change in the law and other factors, there has been a considerable increase in the number of aliens in immigration custody who have a final order of removal but who the Service is unable to remove during the removal period set out in section 241(a)(1) of the Act, 8 U.S.C. 1231(a)(1).

Two courts of appeals have upheld the Attorney General's authority to continue detention after the removal period. See Duy Dac Ho v. Greene , 204 F.3d 1045 (10th Cir. 2000); Zadvydas v. Underdown , 185 F.3d 279 (5th Cir. 1999). The Ninth Circuit recently held, in Ma v. Reno ,—F.3d —, 2000 WL 358445 (9th Cir. Apr. 10, 2000), that such detention may not be extended more than a reasonable time beyond the statutory removal period, but the Department of Justice is seeking further review of that decision. This rule will provide procedures to govern detention of aliens with final orders, to the extent that they continue to be detained after the expiration of the removal period.

The Department of Justice has determined that a separate custody review process is appropriate for aliens who are detained beyond the 90-day removal period. This action permits a comprehensive and fair review of post-order cases by establishing multiple levels of review to determine whether certain detained aliens may be released from custody, and sets forth the procedures governing such release or continued detention. As was the case with the implementation of the Mariel Cuban Review Plan, this review process is intended to balance the need to protect the American public from potentially dangerous aliens who remain in the United States contrary to law with the humanitarian problems created by another country's unjustified delay or refusal to accept repatriation of its nationals.

Currently, 8 CFR 241.4 provides the general procedures governing the detention of criminal, inadmissible, and other aliens who have received a final administrative removal order but whose departure has not been effected within the 90-day removal period specified in section 241(a)(1) of the Act, 8 U.S.C. 1231(a)(1). In 1999, pending promulgation of more specific procedures by regulation and to institute a more uniform process nationwide, the Service issued a series of memoranda to provide specific guidance to field offices concerning implementation of interim procedures governing post-order custody cases. Detention Procedures for Aliens Whose Immediate Repatriation is Not Possible or Practicable , February 3, 1999; Supplemental Detention Procedures , April 30, 1999; Interim Changes and Instructions for Conduct of Post-Order Custody Reviews , August 6, 1999 (collectively “the Pearson memoranda”).

This rule establishes permanent procedures for post-order custody reviews. The rule will assist the decision maker in determining whether an alien is an appropriate candidate for release from custody after the expiration of the removal period. When the review procedures are adopted in final form, they will supersede the Pearson memoranda. The new procedures are modeled after those governing the Mariel Cubans at 8 CFR 212.12 and consist of a file review with the opportunity for a panel interview and recommendation, and a final decision by a separate Service Headquarters unit, the Headquarters Post-Order Detention Unit (HQPDU). Although Mariel Cuban procedures will continue to be governed separately, the review process is similar for both groups of aliens.

This proposed rule would establish a permanent review procedure that would apply to noncriminal aliens as well as inadmissible and criminal aliens whose release after expiration of the 90-day removal period presents a significant risk of noncompliance with the order of removal or a danger to public safety. The Attorney General is authorized to detain these aliens beyond the removal period, as necessary, consistent with section 241(a)(6) of the Act, 8 U.S.C. 1231(a)(6), until they can be removed from the United States.

This permanent review procedure will govern all post-order custody reviews with the exception of Mariel Cubans whose parole under section 212(d)(5) of the Act, 8 U.S.C. 1182(d)(5), is governed by the provisions of 8 CFR 212.12. Mariel Cuban custody reviews will continue to be conducted pursuant to those provisions.

Under the proposed rule, the district director maintains the responsibility for the initial custody review when the alien's immediate repatriation is proper but not practicable at the expiration of the removal period. For the initial post-order custody review at the expiration of the removal period (the 90-day custody review), the district director will conduct a file review. In most cases, it will be unnecessary for the district director to undertake a personal interview since the alien's immigration proceedings have recently concluded, and the information of record is recent. The district director has the discretion to conduct a personal or telephonic interview if he or she finds that it will assist him or her in making a custody determination. Further, the alien will be provided with the opportunity to present any relevant written information the alien desires in support of his or her release into the community.

After the 90-day custody review, the district director will notify the alien in writing that he or she is to be released from custody, or that the alien will be continued in detention pending repatriation or further review of his or her custody status.

Where the district director has notified the alien that he or she will continue to be detained pending repatriation, the district director's authority to reconsider an alien's custody status may be extended for an additional period of up to 3 months after expiration of the removal period. The additional 3-month period will allow the district director to continue efforts to obtain the necessary travel documents to effect the alien's removal before the detention authority is transferred to Service Headquarters.

During the additional 3-month period, the alien may submit a written request to the district director for further review of his or her custody status. The district director shall consider information that the alien submits in support of his or her release from detention demonstrating a material change in circumstances. The district director will provide a written response as appropriate to the alien's submission of such new information and may, in the exercise of discretion, conduct any further review of the alien's custody status that he or she deems appropriate. The district director retains the authority to release the alien during this period as well.

If the alien has not been repatriated or released, detention authority transfers to the newly designated Service component, the HQPDU, under the authority of the Executive Associate Commissioner, Field Operations (Executive Associate Commissioner), either at the end of the 90-day removal period or at the expiration of the 3-month extension period. Under either circumstance, the HQPDU will ordinarily commence a custody review within 30 days of the transfer of detention authority or as soon as possible thereafter should unforeseen or emergent circumstances arise. The alien will receive written notice of the custody review approximately 30 days prior to the scheduled review. The HQPDU will conduct all further custody determinations as long as the alien remains in custody pending removal. Subsequent custody reviews will be conducted at annual intervals (or more frequently in the sole discretion of the HQPDU).

When the detention authority transfers to the HQPDU, that unit will conduct a file review for each alien previously ordered detained by the district director. If the file review does not result in a release decision, the alien will be given the opportunity for a panel interview. The two-member panel will be chosen from professional staff of the Service. The interview will be conducted in person and a translator will be provided if the Service official determines that a translator's assistance is appropriate. As under the Mariel Cuban Review Plan, the interviewing panel will make a custody recommendation to the HQPDU. Upon receipt of the panel's recommendation, the HQPDU shall determine whether to detain or grant release consistent with the delegation of discretionary authority. The decision of the HQPDU will be final and will not be subject to further administrative review.

The HQPDU is not bound by the panel's recommendation. The HQPDU retains full statutory authority for custody determinations under sections 241(a)(6), 8 U.S.C. 1231(a)(6), and (for inadmissible aliens) 212(d)(5) of the Act, 8 U.S.C. 1182(d)(5). The panel's recommendation is designed to serve as an important guide to the exercise of discretion for the HQPDU, but the decision maker must be free to assess all of the circumstances in arriving at a final custody determination. The decision maker must also take into consideration changes in foreign and domestic affairs, the availability of fiscal resources, public policy and humanitarian concerns, and other factors that could weigh for or against the decision in an individual case.

The subsequent HQPDU periodic review, to be conducted within one year of a refusal to grant release under these procedures or as soon as practicable thereafter in case of unforeseen circumstances or an emergent situation, will address whether the alien can be released into the community if the alien has not been repatriated since the last review. The HQPDU may conduct a custody review at more frequent intervals at its sole discretion and consider written submissions demonstrating any material change in circumstances that supports the alien's release during the interval between reviews. Material change does not include mere disagreement with the decision denying release. The HQPDU will give a written response to the alien's submission of new information as appropriate under the rule. Written submissions, whether to the district director or the HQPDU, must be in English or they may not be given consideration.

The alien may be assisted by a person of his or her choice in preparing or submitting information in response to the notice of custody review. The Service has followed the guidelines set forth in 8 CFR 212.12(d)(4)(ii) (regarding representation of an alien before a Mariel Cuban parole panel) rather than the more formal rules regarding attorney representatives at 8 CFR 292.1. Both 8 CFR 212.12 and the proposed rule allow the alien to be accompanied by a person of his or her choice at the panel interview (subject to the discretion of the institution and panel). It may be difficult for the detained alien to secure the services of a licensed attorney for each annual review, or counsel may change between reviews. Further, giving the alien discretion in selecting who will assist him or her in preparation of materials for submission to the district director and who will accompany him or her to the panel proceeding promotes two important Service objectives. These objectives are to make this process as flexible and nonadversarial as possible and to promote the alien's level of comfort with the proceedings. The alien's representative will be required to complete an INS Form G-28 (Notice of Entry of Appearance as Attorney or Representative) at the time of the interview or prior to reviewing the detainee's records. Attached to any notice of a file review or interview, the Service will provide a list of free or low cost attorneys and representatives who are located near the alien's place of confinement.

Although the Service will forward any notice or decision relating to the custody review to counsel or other representative of record through regular mail, the alien bears primary responsibility for ensuring that the individual providing assistance to him or her is aware of any notices, decisions, or other documentation relating to the custody review. Experience with the Cuban Review Plan has demonstrated that an alien may have several representatives successively, or may be assisted by an attorney, other person, or organization whose representation is not known to the Service.

Any person assisting the alien should not answer for the alien but assist the alien in the latter's presentation of information supporting a release decision. Whether the alien's case is before the district director for review or the panel for an interview, the purpose of the review process is to collect information. Because the decision maker must evaluate the suitability of the alien for release, it is important for the alien to address the district director or panel directly and be able to speak freely. The district director and panel need to hear from the alien rather than his or her representative.

Both the Executive Associate Commissioner through the HQPDU and the district director have the authority to withdraw approval for release and to revoke release or parole in the exercise of discretion. Reasons for withdrawal of approval for release or revocation include the Service's ability to obtain a travel document and remove the alien, the alien's adverse conduct while awaiting release, the decision maker's belief that the alien's actions while in the community pose a threat to public safety, or any other circumstance that indicates that release would no longer be appropriate. If the decision maker withdraws release approval or revokes the alien's release or parole, the alien will receive written notification specifying the reasons for the withdrawal of approval for release or revocation of post-order release or parole.

This rule addresses Service procedures for conducting post-order custody reviews. It does not circumscribe the exercise of the Commissioner's authority to direct otherwise, as appropriate. Section 2.1. of title 8 of the Code of Federal Regulations delegates the authority vested with the Attorney General to the Commissioner. Section 241(a)(3) of the Act vests authority with the Attorney General to promulgate regulations governing supervision of aliens beyond the removal period and section 241(c)(2) vests authority with the Attorney General to grant stays of removal. Therefore, the Commissioner already has the authority to release certain aliens from Service custody, issue orders of supervision, and grant stays of removal. As directed by the Commissioner or Deputy Commissioner, Service officials have authority to release certain aliens from Service custody, issue orders of supervision, and grant stays of removal. Therefore, this rule also amends 8 CFR 241.4, 241.5 and 241.6 to reflect the concurrent authority of the Commissioner and other designated Service officials.

This rule would terminate the existing procedure of appeal to the Board of Immigration Appeals (Board) under 8 CFR 236.1 for an alien who receives an unfavorable custody decision from the district director. See Matter of Saelee, Interim Decision 3427 (BIA 2000). Since these aliens have final orders of removal, all legal issues involving removability (and any discretionary relief from removal, if available) have been resolved through the Executive Office for Immigration Review or through alternate procedures. Custody determinations at this stage of the process involve separate and distinct issues, and the Service has the knowledge and expertise required to make these custody decisions.

The proposed rule for permanent procedures provides for an automatic multi-tiered annual review process subsequent to the district director's 90-day review as long as the alien remains in custody. The detainee is assured a periodic and thorough review that does not depend on the alien's request for a custody review or the filing of an appeal, but is required at regular intervals by regulation. This review process will ensure timely, scheduled reviews of each alien's case.

Accordingly, in order to implement a single comprehensive review process for post-order custody cases, this proposed rule removes all references to post-order detention from 8 CFR 236.1. As revised, 8 CFR 236.1 would govern detention issues only for aliens who have not yet received a final removal order.

Any case pending before the Board on the effective date of this rule when it is published as a final rule will be completed by the Board. Should the alien decide to withdraw his or her appeal, the Service shall continue to conduct custody reviews under the provisions of this rule.

This proposed regulation also removes 8 CFR 212.13 and any references to that section in 8 CFR 212.5 and 8 CFR 212.12. Section 212.13 established a single Departmental parole review for all excludable Mariel Cubans who on the effective date of the regulation were detained by virtue of the Attorney General's authority under the Act and whose parole had been denied after the exhaustion of the review procedures of 8 CFR 212.12. The Departmental Review Panels have completed the review of the cases of detainees eligible for such review. Thus, there is no longer a need for this regulation. This action will not otherwise affect the Cuban Review Plan set forth in 8 CFR 212.12.

The alien must be able to show to the satisfaction of the decision maker that he or she does not constitute a danger to public safety or a flight risk pursuant to the criteria set forth in the proposed regulation.

Detention or release of aliens with a final order of removal is tied to the Service's mission to enforce the immigration laws and protect the interests of the United States, pending the aliens' eventual removal from the United States. Accordingly, district directors will continue to make efforts to obtain travel documents even after review authority has transferred to the HQPDU. Headquarters Detention and Deportation, Office of Field Operations will also assist in the effort to secure travel documents.

The ability to secure a travel document by itself supports a decision to continue detention pending the removal of the alien and obviates the need for further custody review because it means the alien can be deported. See 8 CFR 212.12(g)(1). Custody reviews may be pretermitted in the case of an alien for whom travel documents are available. Pending litigation, an administrative or judicial stay, or other barrier to removal does not entitle an alien who can be repatriated to release within the United States pending resolution of the underlying action or event. Aliens whose removal is deferred under 8 CFR 208.17 may be considered for release.

Release conditions and work authorization for aliens subject to a final order of removal will continue to be governed by 8 CFR 241.5. The district director or HQPDU may wish to impose conditions, in addition to those enumerated by regulation, such as that the alien obey all laws, not associate with any persons involved in criminal activity, not associate with anyone convicted of a felony without permission, not carry firearms or other dangerous weapons, or such other conditions as the decision-maker deems appropriate. Under 8 CFR 241.5(c), a grant of work authorization is discretionary but requires the decision maker to make an initial finding that the alien cannot be immediately removed because no country will accept the alien or that the alien's removal is impracticable or contrary to the public interest.

Sponsorship and evidence of financial support may be required as a precursor to release under the proposed rule. The Service has determined that appropriate sponsorship is in the best interest of the alien and community when an alien is approved for release pending repatriation. See, e.g., Fernandez-Roque v. Smith, 734 F. 2d 576 (11th Cir. 1984). Although the Service reserves the authority to impose conditions of release, including appropriate sponsorship, this rule does not compel the Government to tailor existing programs to the needs of individual aliens or to create or fund additional programs if suitable sponsorship is not located or available for an alien.

If an alien is detained in a facility that does not provide any rehabilitative programs, no negative inference respecting release will be drawn against the alien in making a custody determination based on the fact that the alien did not participate in such programs. However, if the facility has such programs available to the alien but the alien refuses to participate, that fact may be considered by the decision-maker.

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule would provide a more uniform review process governing the detention of criminal, inadmissible, and other aliens who have received a final administrative removal order but whose departure has not been effected within the 90-day removal period. This rule does not affect small entities as that term is defined in 5 U.S.C. 601(6).

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

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

This rule is considered by the Department of Justice, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this rule has been submitted to the Office of Management and Budget for review.

This regulation 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. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

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

Accordingly, chapter I of title 8 of the Code of Federal Regulations is proposed to be amended as follows:

On March 17, 2000, FSIS published the advanced notice of proposed rulemaking (ANPR) “Other Consumer Protection (OCP) Activities” (65 FR 14486). FSIS published this ANPR to request comments on the need and desirability of revising its approach to verifying that meat and poultry products are not misbranded, economically adulterated, or otherwise unacceptable for reasons that do not necessarily raise food safety or public health concerns. In the ANPR, FSIS referred to these program activities as “other consumer protection” (OCP) activities. The ANPR defined and described FSIS' OCP activities and discussed the Agency's need for revised regulations and verification and enforcement procedures.

FSIS has received a request to extend the comment period for an additional 180 days because of the large scope of the ANPR. FSIS agrees that the ANPR addresses many issues and wants to receive as much input as possible. However, because this is an ANPR, and any further actions by the Agency will be issued in a notice and comment proposed rulemaking, FSIS is reopening the comment period for 60 days. After the comment period closes, FSIS, intends to proceed with development of various OCP notice and comment proposed rulemakings.

Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to better ensure that minorities, women, and persons with disabilities are aware of this notice, FSIS will announce it and provide copies of this Federal Register publication in the FSIS Constituent Update. FSIS provides a weekly FSIS Constituent Update, which is communicated via fax to over 300 organizations and individuals. In addition, the update is available on line through the FSIS web page located at http://www.fsis.usda.gov. The update is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, recalls, and any other types of information that could affect or would be of interest to our constituents/stakeholders. The constituent fax list consists of industry, trade, and farm groups, consumer interest groups, allied health professionals, scientific professionals, and other individuals that have requested to be included. Through these various channels, FSIS is able to provide information to a much broader, more diverse audience.

For more information and to be added to the constituent fax list, fax your request to the Congressional and Public Affairs Office, at (202) 720-5704.

On May 3, 2000, the NRC docketed an April 20, 2000, letter from Thomas B. Cochran, Ph.D., Director, Nuclear Program, Wade Green Chair for Nuclear Policy, NRDC, to the Honorable Richard A. Meserve, Chairman, U.S. Nuclear Regulatory Commission, as a petition for rulemaking under 10 CFR 2.802. In this letter, Dr. Cochran requested that the NRC issue regulations under the provisions of 10 CFR 2.206 that would require an individual to report illegal payments to regulators if the individual has knowledge or evidence of the illegal payments. The petitioner requests that an individual who fails to make such a report not be issued a license or allowed to retain a license. The § 2.206 process is applicable to actions that would suspend, modify, or revoke a license. Requests to add, amend, or remove a regulation are processed under 10 CFR 2.802. Therefore, Dr. Cochran's request was docketed under the procedures applicable to petitions for rulemaking contained in § 2.802.

The petitioner references a letter from the NRC to an individual indicating that the NRC will take no further action on its Demand for Information dated July 12, 1999 (EA 99-180). The Demand for Information sought information that would allow the NRC to determine whether it needed to take any action concerning the individual or the licensee for which the individual was president. The matter in question concerned payments made by the individual to an official of an Agreement State regulatory body that was responsible for issuing licensees and overseeing activities related to the individual's license.

The petitioner characterizes this letter as indicating the Commission's apparent satisfaction with mere assurances from the individual that the individual will act with the candor and integrity that is required of NRC licensees despite what the petitioner states are the individual's unlawful actions and failure to notify Federal or State officials of the potentially criminal activities of a regulator.

The petitioner states that the NRC's action does little to quell his concerns about safeguarding the nuclear regulatory process to prevent a recurrence of this type of action. The petitioner asserts that the only reasonable response to the admitted participation of the individual in a blatantly corrupt scheme with a top nuclear official in an Agreement State would have been to bar the individual from any further involvement in NRC-licensed activities for life. The petitioner also states that the least the NRC could have done following what the petitioner characterized as a protracted process would be to provide a fully reasoned justification for its decision to allow the individual to return to his position in running a licensed company.

The petitioner is concerned that the reinstatement of the individual establishes an extremely dangerous precedent from a regulatory perspective. Therefore, the petitioner requests that the NRC promulgate the following as an NRC regulation:

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.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g., reasons or data) for each request.

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 2000-NM-202-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. 2000-NM-202-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

On January 28, 1999, the FAA issued AD 99-03-06, amendment 39-11020 (64 FR 5588, February 4, 1999), applicable to all Short Brothers Model SD3-60 SHERPA series airplanes, to require a one-time visual inspection to determine the part number of the power control cable assemblies and pulleys of the engine controls; and replacement of the power control cable assemblies and pulleys (as applicable) with new parts, if necessary. That action was prompted by issuance of mandatory continuing airworthiness information by a foreign civil airworthiness authority. The requirements of that AD are intended to prevent breakage of the power control cable assemblies due to the inflexible construction of the cable, which could result in loss of engine power and consequent reduced controllability of the airplane.

Since the issuance of that AD, the manufacturer has determined that certain pulleys were inadvertently omitted from the service bulletin referenced for accomplishing the required inspection and replacement of the pulleys. Accordingly, the manufacturer has issued a revision to the service bulletin to provide corrected procedures for accomplishment of the inspection and replacement.

The manufacturer has issued Shorts Service Bulletin SD3-60 SHERPA-76-1, Revision 2, dated March 21, 2000. This service bulletin contains procedures similar to those in the original issue of the service bulletin, dated July, 1998, and Revision 1, dated October 14, 1998, which were referenced as the appropriate sources of service information in AD 99-03-06. However, Revision 2 adds procedures for inspecting and replacing two additional pulleys, clarifies certain other procedures for accomplishment of the actions, and clarifies the recommended compliance time. The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, classified this service bulletin as mandatory in order to assure the continued airworthiness of these airplanes in the United Kingdom.

This airplane model is manufactured in the United Kingdom and is type certificated for operation in the United States under the provisions of 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 CAA has kept the FAA informed of the situation described above. The FAA has examined the findings of the CAA, 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 99-03-06 to require a one-time inspection to determine the part number of the power control cable assemblies and pulleys of the engine controls; and replacement of the power control cable assemblies and pulleys (as applicable) with new parts, if necessary. The actions would be required to be accomplished in accordance with the revised service bulletin described previously.

The FAA estimates that approximately 28 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 15 work hours per airplane to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $25,200, or $900 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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.

• Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g., reasons or data) for each request.

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 2000-NM-10-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. 2000-NM-10-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Civil Aviation Administration of Israel (CAAI), which is the airworthiness authority for Israel, notified the FAA that an unsafe condition may exist on certain Israel Aircraft Industries, Ltd., Model Astra SPX and 1125 Westwind Astra series airplanes. The CAAI advises that a too-short attachment arm on an aileron autopilot servo actuator can allow the servo control link to be driven overcenter. This condition, if not corrected, could result in roll oscillations when the autopilot is engaged.

The manufacturer has issued Astra (Israel Aircraft Industries) Alert Service Bulletin 1125-27A-157, dated September 14, 1999. The service bulletin describes procedures for a one-time inspection of the aileron autopilot servo and attaching linkage to determine whether the attachment arm on the autopilot servo is in the correct position. For any attachment arm that is not in the correct position, the service bulletin describes procedures for a one-time inspection to detect damage (including gouges and scratches) of the bellcrank arm, control link, and servo attachment arm; follow-on actions; and corrective actions, if necessary. The follow-on and corrective actions include repositioning the servo attachment arm to the correct position, and repairing or replacing damaged parts with new parts depending on the extent of damage found. The service bulletin also describes procedures for installing a stopper angle on the servo bracket.

Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition. The CAAI classified this service bulletin as mandatory and issued Israeli airworthiness directive 27-99-10-06R1, dated November 17, 1999, in order to assure the continued airworthiness of these airplanes in Israel.

These airplane models are manufactured in Israel and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAAI has kept the FAA informed of the situation described above. The FAA has examined the findings of the CAAI, 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 38 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 2 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 $100 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $8,360, or $220 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.

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.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

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-364-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-364-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, notified the FAA that an unsafe condition may exist on all Dornier Model 328-300 series airplanes. The LBA advises that, after using the parking brake during a taxiing test, the pilot noticed that the brake did not release completely. It was determined that the parking brake may have been used as a brake pressure metering device while the airplane was moving. Such improper use of the parking brake could lead to a dragging brake, which would not be detected by the takeoff configuration warning in the airplane. An undetected dragging parking brake, if not corrected, could result in decreased acceleration during the takeoff roll, increased takeoff distance, and possible runway overrun.

Dornier has issued All Operators Telefax AOT-328J-32-001, dated September 9, 1999, which advises of a revision to the Airplane Flight Manual (AFM) to prohibit use of the parking brake for braking, except in emergency situations. The LBA classified the AOT as mandatory and issued German airworthiness directive 1999-352, dated November 18, 1999, in order to assure the continued airworthiness of these airplanes in Germany.

This airplane model is manufactured in Germany 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 LBA has kept the FAA informed of the situation described above. The FAA has examined the findings of the LBA, 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 revising the AFM to prohibit use of the parking brake for braking, except in emergency situations.

Operators should note that, although the LBA has mandated that the AFM be revised prior to the next flight, the FAA has determined that an interval of 10 days would address the identified unsafe condition in a timely manner while allowing operators sufficient time to implement the AFM revision proposed by this AD.

The FAA estimates that 7 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 1 work hour per airplane to accomplish the proposed AFM revision, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $420, or $60 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 should identify the Rules Docket number and be submitted 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 2000-NE-21-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, New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2000-NE-21-AD, 12 New England Executive Park, Burlington, MA 01803-5299.

The Federal Aviation Administration (FAA) has received reports that during recent shop visits at various overhaul and repair facilities, 32 V2500-A5/D5 series engines have been assembled with improper HPT module configurations. The improper HPT assemblies resulted from incorrect or incomplete incorporation of several IAE service bulletins (SB) required for proper assembly of the high secondary cooling airflow HPT stage 1 turbine blades and cooling duct, which were introduced as part of the V2533-A5 HPT configuration. The new high secondary cooling airflow HPT stage 1 blade and modified stage 1 HPT cooling duct assembly were introduced to improve the blade cooling and blade durability. This configuration became the new standard for all V2500-A5 and D5 series engines. Service Bulletins V2500-ENG-72-0242 and SB V2500-ENG-72-0241 introduced the “high airflow” HPT blades and stage 1 HPT cooling duct assembly, respectively, to the other V2500-A5/D5 models. For engines with thrust ratings below 33K, the HPT module can be assembled with either the low airflow stage 1 HPT blades and low airflow or high airflow stage 1 HPT cooling duct assembly (pre SB V2500-ENG-72-0242 and pre or post SB V2500-ENG-72-0241, respectively) or with the high airflow stage 1 HPT blades and high airflow cooling duct assembly (post SB V2500-ENG-72-0242 and post SB V2500-ENG-72-0241, respectively). The FAA has reports of 32 engines that have been assembled with an intermix of high airflow and low airflow HPT hardware. There are five improper configurations of the HPT module in the field as defined below.

Configuration X and X′ result in higher temperature in the OD rim cavity of the HPT stage 1 disk than the design intended. The consequence of this disk rim temperature increase is a debit to the life of the disk. An engineering review has determined that if engines in configuration X are removed from service and restored to an approved configuration prior to accumulating 5,100 cycles in configuration X, the HPT disk assembled in an approved configuration will meet its chapter 5 life limit. The disk rim temperature increase for configuration X′ engine is less severe than for the configuration X. An engineering review has determined that if the engine in configuration X′ is removed from service and restored to an approved configuration prior to accumulating 7,600 cycles in configuration X′, the HPT disk assembled in an approved configuration will meet its chapter 5 life limit.

Configurations X*, Y, and Z do not effect the HPT disk rim temperatures significantly. However, these are not approved configurations. This proposed AD will require the removal of engines with HPT modules built to configuration X*, Y, or Z from service and the restoration to type design at the next shop visit.

The actions specified by the proposed AD are intended to restore the engine to type design and prevent possible LCF failure of the stage 1 HPT disk, which, if not corrected, could lead to an uncontained engine failure and damage to the airplane.

IAE has issued All Operators Wire (AOW) No. 1053, Issue 2, dated June 20, 2000, which identifies engines with HPT modules utilizing non type design configurations by serial numbers and by specific configurations. (configuration X, X*, X′, Y, or Z).

Since an unsafe condition has been identified that is likely to exist or develop on other engines of the same type design registered in the United States, the proposed AD would require the removal from service of certain V2500-A5/D5 series engines, identified by serial numbers, prior to accumulating 5,100 or 7,600 cycles in the improper configuration, or at the next shop visit, depending on the type of improper HPT module configuration and the restoration type design.

There are approximately 32 engines in the worldwide fleet with the HPT module assembled in an improper configuration. The FAA estimates that 12 engines installed on aircraft of US registry would be removed from service before scheduled shop visits as a result of this proposed AD. The cost of early removal and restoration to type design will be approximately $6,000 per engine. Based on these figures, the total cost impact of the proposed AD on US operators is estimated to be $72,000.

This proposal does not have federalism implications, as defined in Executive Order 13132, because it 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. Accordingly, the FAA has not consulted with state authorities prior to publication of this proposal.

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:

We have developed extensive records concerning whether to issue regulations limiting the concentration of diesel particulate matter (dpm) in underground coal mines and underground metal and nonmetal mines, and what type of rule would be appropriate for each sector. We have been working on this initiative for a number of years. We issued a proposed rule for underground coal mines on April 9, 1998, and a proposed rule for underground metal and nonmetal mines on October 29, 1998. Following a period for pre-hearing comments on each proposal, we held four public hearings around the country on each proposal. After an extension of the comment period for each proposal, both records closed on July 26, 1999.

We have now determined that it is appropriate to add some documents to each of these records. You are welcome to comment on the additions to both records.

A key feature of the proposed rule for this sector was the establishment of a concentration limit for dpm. Accordingly, in reviewing the record, the agency paid particular attention to assertions by the mining community that the sampling and analytical method which MSHA proposed to use for measuring compliance with that limit would not provide accurate results in many cases. Specifically, we proposed:

In the preamble to the proposed rule (63 FR 58104 et seq. ), in particular a discussion entitled “(3) Methods Available to Measure DPM” (63 FR 58127-58130); in Question and Answer #12 (63 FR 58116-58117); and in the discussion of proposed § 57.5061 (63 FR 58184), we reviewed the various approaches used to determine the concentration of dpm, and explained our rationale for the approach proposed. Moreover, we asserted that the method we proposed to use could accurately determine whether dpm emissions in any underground metal or nonmetal mine exceeded the proposed concentration limit (with an appropriate allowance for a margin of error).

There was extensive comment on this assertion during the four rulemaking hearings and in written pre-hearing and post-hearing comments. While some commenters reaffirmed the validity of various aspects of the method, a number of commenters asserted that we could not rely on this approach for compliance purposes in certain types of mines and under various circumstances.

Specifically, these commenters asserted that some of the material being measured as dpm might well be something other than dpm, an “interferrent.” Some asserted that certain types of mineral dust, in particular graphite and carbonaceous minerals, were interferrents. Other commenters asserted that oil mists from drilling operations and cigarette smoking by miners, which can be present in many underground metal and nonmetal mines, were interferrents. Some commenters supported their claims with study results.

During the hearings, MSHA representatives expressed concerns about the manner in which these studies had been performed and the methodology used. When we examined the information provided for the record about these studies, our concerns were heightened, thus leaving us without enough evidence to verify the existence and scope of the alleged interferences.

We decided that we would attempt to verify the existence and scope of the alleged interferrents while we were reviewing other aspects of the rulemaking record. Other agencies have followed this approach. The situation discussed in Community Nutrition Institute v. Block , 749 F.2d 50 (D.C. Cir. 1984), Circuit Judges Wilkey, Bork, and Scalia, is an example. The case involved studies that Department of Agriculture staff conducted in response to comments alleging deficiencies in a methodology, and completed after the close of the comment period.

Accordingly, MSHA's Pittsburgh Safety and Health Technology Center conducted five investigations to verify these assertions of methodological problems. We have decided to reopen the record to provide the mining community an opportunity to review and comment on this information. Members of the mining community also requested that we reopen the record for this purpose.

The rule proposed for this sector would have required certain types of underground coal mining equipment to be filtered. We also requested comment on an alternative which would have required certain types of underground equipment to observe an emissions standard. An emissions standard could be achieved using a lower emission engine or filters or both. In either case, the efficiency of available filters is one important consideration in determining the economic and technological feasibility of the rule for coal mines. Thus, during the hearings and in the written comments, there was a great deal of discussion on this topic, and we compiled an extensive record.

Some commenters asserted that paper filters could not achieve a 95% reduction in emissions from current permissible equipment, as we had asserted. Such filters can be directly installed on permissible equipment, without the need for additional equipment to cool the exhaust (so it will not ignite the filter element). While the record does contain considerable evidence on the efficiency of two versions of a system known as the DST® that first cools the exhaust from an engine and then routes it through a paper filter (and in one case a catalytic convertor), it contained no definitive information supporting the assertion of commenters that a paper filter alone could not achieve such efficiencies. Accordingly, in order to verify the assertions of commenters, we contracted with Southwest Research Institute to conduct an investigation toward this end. We are placing the Institute's report of test results in the record and welcome your comments on it.

The record does contain considerable information on the efficiency of hot gas filters (e.g., ceramic monolithic cell, metal sintered, fiber wound, etc.), which will play an important role in reducing emissions from non-permissible equipment under either regulatory scenario described above. This information includes filter efficiency tests conducted by VERT (Verminderung der Emissionen von Realmaschinen in Tunnelbau), a consortium of several European agencies conducting such research in connection with major planned tunneling projects in Austria, Switzerland, and Germany. Since the close of the record, these VERT tests have continued. We believe it is appropriate to consider the full range of their results and are adding their more recent test data to the record. We welcome your comments on it.

Since the record closed, several documents have been published concerning the risk of dpm. This risk information is applicable to both coal's and metal and nonmetal's rulemakings.

The first item is a report by another Federal authority updating information discussed in the record. During the hearings and post-hearing comments, there was considerable discussion of an October 1998 report of the Clean Air Scientific Advisory Committee (CASAC) reviewing an EPA Diesel Health Assessment Document. This committee has issued a new report (“Review of EPA's Health Assessment Document for Diesel Emissions” February 2000) on a revised EPA Diesel Health Assessment Document (EPA, Health Assessment Document for Diesel Emissions, Office of Research and Development, SAB Review Draft, EPA-600/8-90/057D, November 1999). Members of the mining community participated actively in the discussions leading to CASAC's newer report. Accordingly, we believe it would be appropriate to update our record to reflect any new information covered by the revised EPA assessment and the CASAC's review of it. Members of the mining community have requested that we reopen the record for this purpose.

The second item is a study by Saverin, R. et al. , “Diesel Exhaust and Lung Cancer Mortality in Potash Mining,” American Journal of Industrial Medicine , 36:415-422 (1999). The unpublished version of the study was discussed at one of the hearings, and we already have the unpublished version of this study in the record. The published version which differs slightly from the earlier translation is now available and it is normal practice to refer to the published version of a study when that version is available. Accordingly, we are adding the published version to the record and welcome your comments on it.

The third item is an epidemiological study investigating the association of lung cancer with occupational exposures to diesel emissions in Germany. Bruske-Hohlfeld, I. et al. , “Lung Cancer Risk in Male Workers Occupationally Exposed to Diesel Motor Emissions in Germany,” American Journal of Industrial Medicine , 36:405-414 (1999). The record of this rulemaking includes a lengthy and comprehensive list of relevant epidemiological studies. These were discussed in great detail by the mining community during the hearings and comment period. As a result, we believe it would be inappropriate to leave this recent epidemiological study out of the record. Accordingly, we are adding this study to the record and welcome your comments on it.

The fourth item is a study concerning human response to acute dpm exposures. Salvi, Sundeep, et al. , “Acute Inflammatory Responses in the Airways and Peripheral Blood After Short-Term Exposure to Diesel Exhaust in Health Human Volunteers,” Am. J. Respir. Care Med. 159:702-709 (1999). Again, the record of this rulemaking includes a comprehensive list of relevant studies in this regard, and they were discussed by the mining community during the hearings and comment period. Since the Agency is opening the record, the addition of this recent study is appropriate. Accordingly, this study is being added to the record at this time.

Finally, in its review of the record, the agency noted certain comments suggesting that these commenters might not have been aware of certain studies that were part of the general scientific literature covered by reviews which are included and discussed in the record. Accordingly, the agency is placing copies of two such studies directly into the record under their own docket numbers, and will accept any comments on these studies. [Hou, S.M. et al., “Relationship between hprt mutant frequency, aromatic DNA adducts and genotypes for GSTM1 and NAT2 in bus maintenance workers,” Carcinogenesis, 16:1913-1917 (1995); and Ichinose, et al., “Lung Carcinogenesis and Formation of 8-hydroxy-deoxyguanosine in Mice by Diesel Exhaust Particles,” Carcinogenesis, 18:185-192 (1997).]

The agency wants to reassure the mining community that since the agency's risk assessment covers information relevant to both underground coal mines and underground metal and nonmetal mines, any comments on the risk assessment filed in one record have also been placed in the other. In some cases, commenters placed the comments in both records just to be sure MSHA would consider them, but not all did so. The agency will follow this same policy with respect to any comments on the risk studies which are the subject of this notice.

The Agency is opening the rulemaking record for additional comment on only the specific items described above. The agency has determined that in light of the limited scope of this reopening, and the extensive familiarity of the mining community with the existing record on the topics involved, the record will remain open for comments on these items for 30 days. The agency does not foresee any extensions will be needed. Accordingly, to facilitate comment by the mining community, the agency will be pleased to telefax or express mail copies of any of the items involved upon request.

The notice of proposed rulemaking (NPRM) on Outer Continental Shelf Activities, published on December 7, 1999 (64 FR 68416), encouraged interested persons to participate in this rulemaking by submitting written data, views, or arguments by April 5, 2000. It also invited comments on collection-of-information requirements to be submitted to the Office of Management and Budget (OMB) by February 7, 2000. We received a request to extend both of those dates to July 5, 2000, and did so by a notice of extension (65 FR 14226, March 16, 2000). As a result of several requests since that notice of extension, we are again extending both dates until November 30, 2000.

Persons submitting comments should include their names and addresses, identify this docket (USCG-1998-3868) and the specific section of the NPRM to which each comment applies, and give the reason for each comment. You may submit your comments and material by mail, hand delivery, fax, or electronic means to the Docket Management Facility at the address under ADDRESSES; but please submit your comments and material by only one means. If you submit them by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know they reached the Facility, please enclose a stamped, self-addressed postcard or envelope.

The Coast Guard will consider all comments received during the comment period. It may change this NPRM in view of them.

This Supplementary Information section is organized as follows:

EPA is proposing approval of post-1996 rate-of-progress (ROP) emission reduction plans, and minor revisions to the 1990 base year inventory, submitted by the State of Connecticut for the Greater Hartford serious ozone nonattainment area, and the Connecticut portion of the NY-NJ-CT severe ozone nonattainment area, which is a multi-state ozone nonattainment area, as revisions to Connecticut's SIP. Connecticut did not enter into an agreement with New York and New Jersey to do a multi-state ROP plan, and therefore submitted a plan to reduce emissions only in the Connecticut portion of this area. EPA is proposing action today only on the Connecticut portion of the NY-NJ-CT post-1996 plan.

The post-1996 ROP plans document how Connecticut complied with the provisions of section 182(c)(2) of the Federal Clean Air Act (the Act). These sections of the Act require states containing certain ozone nonattainment areas develop strategies to reduce emissions of the pollutants that react to form ground level ozone.

Connecticut was required to develop plans to reduce ozone precursor emissions because it contains ozone nonattainment areas. A final rule published by EPA on November 6, 1991 (56 FR 56694) designated portions of Fairfield and Litchfield counties, and all of Hartford, Middlesex, New Haven, New London, Tolland and Windham counties a serious ozone nonattainment area. This area is referred to as the Greater Hartford area. Additionally, the November 6, 1999 document designated portions of Fairfield and Litchfield counties a severe ozone nonattainment area. This area is referred to as the Connecticut portion of the NY-NJ-CT area, or as Connecticut's severe area.

Section 182(c)(2) of the Act requires that serious, severe, and extreme ozone nonattainment areas develop ROP plans to reduce ozone forming pollutant emissions by 3 percent a year, averaged over each consecutive 3 year period beginning 6 years after the date of the enactment of the 1990 amendments to the Act, until the area reaches its attainment date. The first set of emission reductions are required to occur between November 1996 and November 1999, and are referred to as post-1996 ROP plan reductions.

Connecticut's post-1996 plans are geared towards reducing emissions of volatile organic compounds (VOCs) and nitrogen oxides (NO X ). These compounds react in the presence of heat and sunlight to form ozone, which is a primary ingredient of smog.

VOCs are emitted from a variety of sources, including motor vehicles, a variety of consumer and commercial products such as paints and solvents, chemical plants, gasoline stations, and other industrial sources. NO X is emitted from motor vehicles, power plants, and other sources that burn fossil fuels.

VOCs and NO X react in the atmosphere to form ozone, the prime ingredient of smog in our cities and many rural areas of the country. Though ozone occurs naturally high in our atmosphere, at ground level it is the prime ingredient of smog. When inhaled, even at very low levels, ozone can:

Cause acute respiratory problems;

Aggravate asthma;

Cause significant temporary decreases in lung capacity in some healthy adults;

Cause inflammation of lung tissue;

Lead to hospital admissions and emergency room visits; and

Impair the body's immune system defenses.

Industrial facilities that emit large amounts of these pollutants are monitored by Connecticut's environmental agency, the Department of Environmental Protection (DEP). Many facilities are required to emit air pollutants through stacks to ensure that high concentrations of pollutants do not exist at ground level. Permits issued to these facilities include information on which pollutants are being released, how much may be released, and what steps the source's owner or operator is taking to reduce pollution. The Connecticut DEP makes permit applications and permits readily available to the public for review. You can contact the Connecticut DEP for more information about air pollution emitted by industrial facilities in your neighborhood.

By 1999, Connecticut's plans will reduce VOC emissions by 26 percent and NO x emissions by 19 percent compared to 1990 emission levels. This reduction is attributable to the control strategy outlined in the State's post-1996 plans, and in Connecticut's 15 percent ROP plans for the years 1990 to 1996. EPA approved the 15 percent ROP plans on March 10, 1999 (64 FR 12015).

Connecticut used the appropriate EPA guidance to calculate the 1999 VOC and NOx emission target levels, and the amount of reductions needed to achieve its emission target levels. EPA notes that in addressing photochemically non-reactive VOC's, Connecticut should have removed acetone from its base year inventory in addition to perchloroethylene. Although removing acetone from the inventory makes a very small change to the overall base year calculation, acetone represents a substantial portion of the VOC emission factors Connecticut used to develop base year inventory estimates for the surface coating and graphic arts area source emission categories. Proper characterization of these source categories is particularly important because Connecticut claims emission reduction credit from federal rules that limit emissions from architectural industrial maintenance coatings, and automobile refinishing coatings.

EPA has determined that if Connecticut had excluded acetone from its base year and projected, controlled emission estimates, the net impact would be 0.3 tons per summer day (tpsd) fewer emission reduction credits claimed for the severe area, and 0.9 tpsd fewer emission reduction credits claimed for the serious area. EPA is asking that Connecticut confirm in writing their agreement with this adjustment to the inventory, or submit to EPA new emission estimates that correctly remove acetone from the calculations. EPA believes that this adjustment in Connecticut's inventory constitutes a de minimis change. This adjustment changes Connecticut's 1999 target level by less than 0.5 percent, and has no impact on the associated control strategy. Therefore, Connecticut is not required to put this inventory adjustment for acetone out to public hearing.

Table 1 illustrates the steps used by Connecticut to derive its 1999 emission target levels for VOC and NO X . The VOC emission values shown in parenthesis are EPA's calculation of what the proper emission values would be if acetone were removed from the area source categories mentioned above. The ROP plans submitted by Connecticut indicate that 1999 projected, controlled emissions are below the target levels for the Greater Hartford area and the Connecticut portion of the NY-NJ-CT nonattainment area. Although EPA's calculations indicate that proper adjustment of the base year inventory to exclude acetone results in VOC emissions that slightly exceed the required target level in each nonattainment area, there are substantial surplus NO X emission reductions well below the NO X target level that readily yield the emission reductions needed for Connecticut to meet its ROP targets in the aggregate.

Connecticut projected its base year emissions to 1999 using growth factors from a variety of sources, including the U.S. Department of Commerce's Bureau of Economic Analysis, and Connecticut State offices of the Department of Labor, Office of Policy and Management, and Department of Transportation.

Connecticut made two changes to its base year emission estimates. The first change was a minor revision made to the State's on-road motor vehicle estimate. Connecticut recalculated base year emissions using the most current version of the mobile model (MOBILE 5b), and also changed the evaluation date to January 1, 1991 to maintain consistency with the evaluation date chosen for its on-road motor vehicle projection, which was January 1, 2000. The second change made was a 3.1 tpsd decrease to the NO X base year emission estimate for a facility operated by Connecticut Light and Power, which is located in the Greater Hartford area, due to a re-evaluation of this facility's emissions. These changes are reflected in the 1990 inventory estimates shown in Table 1 above. EPA approved the Connecticut 1990 base year inventory on October 24, 1997 (62 FR 55336), and proposes to approve these de minimis revisions to Connecticut's inventory.

Connecticut's post-1996 control strategy matches the control strategy described in the EPA's March 10, 1999 approval of the Connecticut 15 percent plans, and also includes additional emission reductions from regulations limiting NO X emissions from stationary point sources, VOC and NO X emission reductions from federal measures limiting emissions from non-road engines promulgated between 1996 and 1999, and VOC and NO X reductions from the on-road mobile sector attributable to the State's Low Emission Vehicle program. These additional control programs are further described below.

Connecticut has adopted a NO X RACT regulation, the citation for which is 22a-174-22 of the Regulations of Connecticut State Agencies. Facilities covered by the rule needed to comply by May of 1995. Connecticut submitted the rule to EPA on May 29, 1994, as a revision to the State's SIP, and amended the rule in 1997. EPA approved Connecticut's NO X RACT rule on October 6, 1997 (62 FR 52016).

Connecticut adopted a Phase II OTC NO X budget rule on March 3, 1999. Facilities covered by the rule needed to comply by the 1999 ozone season. Connecticut submitted this rule to EPA on July 27, 1999, as a revision to the State's SIP. EPA approved the state's submittal in a direct final action published in the Federal Register on September 28, 1999 (64 FR 52233).

Connecticut applied a rule effectiveness value of 80% in determining emission reductions from the two NO X point source controlmeasures listed above. The state determined that by 1999, these two rules will achieve 35.4 tpsd in emission reductions statewide.

In the June 17, 1994 Federal Register (59 FR 31306), EPA established a regulation setting final emission standards for new heavy duty compression ignition (diesel) engines. These rules adopt NO X and smoke standards for large (>50 HP) non-road diesel engines. Additionally, in the July 3, 1995 Federal Register (60 FR 34581), EPA promulgated the first phase of the regulations to control emissions from new non-road spark-ignition engines. The regulation is found at 40 CFR part 90, and is titled, “Control of Emissions From Non-road Spark-Ignition Engines.” Connecticut correctly applied guidance contained in a November 28, 1994 EPA memorandum pertaining to the federal non-road engine control program to determine the VOC and NO X emission reductions that will occur in the State.

The sale of reformulated gasoline in Connecticut also reduces non-road emissions in the State. The combined effect of reformulated gasoline and the new non-road standards will lower VOC emissions by 3.7 tpsd in the severe area, and 13.9 tpsd in the serious area. NO X emissions will be lower by 0.9 tpsd in the severe area, and by 5.4 tpsd in the serious area.

Connecticut submitted a National Low Emission Vehicle (NLEV) program to EPA on February 7, 1996, and February 18, 1999. The NLEV program allows auto manufacturers to commit to meet tailpipe standards for cars and light-duty trucks that are more stringent than EPA can mandate. EPA approved the State's NLEV program on March 9, 2000 (65 FR 12476).

The Connecticut ROP plans demonstrate that the VOC and NO X emission reductions from the control strategy will achieve sufficient emission reductions to lower 1999 emission levels below the target levels calculated for each pollutant.

Ozone levels have decreased in Connecticut during the 1990's, due in part to emission reductions achieved by the State's plans. Pollution control measures implemented by States upwind of Connecticut have also helped ozone levels decline in the State.

The pollutants that form ground level ozone can be transported hundreds of miles, and so pollutants emitted in other States can adversely impact air quality in Connecticut. Air pollution emitted from sources in Connecticut contribute to the State's air quality problems, and can also negatively impact air quality in areas downwind of Connecticut. Air quality modeling performed by the New England States and by the Ozone Transport Assessment Group (OTAG) indicates that ozone levels in Connecticut are highest when winds are from the south-west, which supports the conclusion that air quality in Connecticut is negatively impacted by the large metropolitan areas downwind of the state.

The rate-of-progress plans prepared by Connecticut and other states with ozone nonattainment areas have helped lower ozone levels. Approval of these plans by EPA, and the pollution control measures associated with them, is required by the CAA and will ensure that improvements made in air quality are maintained. Additionally, approval of the regulations associated with them make the rules enforceable by EPA.

Despite the emission reductions achieved through implementation of rate-of-progress plans, many areas of the country still do not meet the one hour ozone standard. The modeling done by the OTAG for the eastern half of the United States indicates that the long distance transport of nitrogen oxides across state borders will prevent many areas from attaining this standard by relying solely on emission reductions from within their borders. The NO X SIP call, which was published as a final rule on October 27, 1998 (63 FR 57356), required large NO X emission reductions across the eastern half of the United States. On May 26, 1999, the U.S. Court of Appeals for the District of Columbia ordered that the EPA suspend implementation of the NO X SIP call pending consideration of a lawsuit that has challenged its requirements. However, on December 17, 1999, EPA granted petitions filed by four northeastern states seeking to reduce ozone pollution through reductions in nitrogen oxide emissions from other states. As a result of that action, 392 facilities in 12 states will have to significantly curtail their NO X emissions. Additionally, on March 3, 2000, the Federal Court of Appeals for the D.C. Circuit issued a ruling generally supportive of EPA's original NO X SIP call.

As previously mentioned, these ROP plans are required by the CAA. Combined with the NO X emission reductions EPA plans to achieve in up-wind states, these ROP plans should assure progress toward attaining the one hour ozone standard in Connecticut.

Ozone nonattainment areas classified as serious or above must submit to the EPA, pursuant to sections 172(c)(9) and 182(c)(9) of the Act, contingency measures to be implemented if an area misses an ozone SIP milestone or does not attain the national ambient air quality standard by the applicable date.

Table 1 indicates that Connecticut's post-1996 ROP plans achieve surplus NO X emission reductions. Surplus amounts are calculated by subtracting the NO X target levels in step 6 from the NO X projected, controlled emission levels in step 7. The 17.5 tpsd surplus reductions achieved in the State's portion of the NY-NJ-CT area covers the 3.2 tpsd reduction needed to meet contingency requirements for this area, but the 7 tpsd surplus reductions for the Greater Hartford area do not cover the 9 tpsd contingency obligation for that area.

Connecticut's contingency plan proposes that 2 tons of excess NO X emission reductions achieved in the severe area be applied in the serious area to complete that area's contingency obligation. EPA believes this is an appropriate substitution, as the serious area is immediately downwind of the severe area. Additionally, guidance issued by EPA titled, “Guidance for Implementing the 1-Hour Ozone and Pre-existing PM10 National Ambient Air Quality Standards' includes a policy recommendation that substitution of emission reduction credits from outside of the nonattainment area for ROP purposes be allowed if certain criteria are met. Connecticut's proposed emission reduction substitution meets the criteria outlined in that guidance.

EPA notes that the minor amount of emission reduction credit over-estimation made by Connecticut due to the failure to remove acetone from the base year inventory creates minor VOC shortfalls of 0.3 tpsd in the severe area and 0.9 tpsd in the serious area. However, the large NO X surplus that exists in each area readily compensates for this.

Section 176(c) of the Act, and 40 CFR 51.452(b) of the Federal transportation conformity rule require states to establish motor vehicle emissions budgets in any control strategy SIP that is submitted for attainment and maintenance of the NAAQS. Connecticut will use such budgets to determine whether proposed projects that attract traffic will “conform” to the emissions assumptions in the SIP.

The December 31, 1997 post-1996 rate of progress plan contained 1999 budgets for nitrogen oxides (NO X ) and volatile organic compounds (VOCs) for each nonattainment area. Table 2 contains the 1999 NO X and VOC transportation conformity budgets in tons per summer day:

On February 10, 1999, Connecticut submitted 2007 budgets for NO X and VOCs to EPA as a required component of the attainment demonstrations for the one-hour ozone standard for each nonattainment area. Due to technical flaws EPA published a document in the Federal Register announcing these budgets inadequate on December 16, 1999 (64 FR 70332 and 64 FR 70348).

However, on February 15, 2000, EPA received the document entitled “Addenda to the Ozone Attainment Demonstrations for the Southwest Connecticut Severe Ozone Nonattainment Area and Greater Connecticut Serious Ozone Nonattainment area.” This document included the revised transportation conformity budgets for 2007 shown below in Table 3:

Since these budgets are more restrictive, cover a time frame longer than the post-1996 ROP plans, and are based on the attainment plan, the 2007 budgets take precedence over the 1999 budgets. Furthermore, EPA New England published a document in the Federal Register announcing that these budgets are adequate for use in transportation conformity determinations on June 16, 2000 (65 FR 37778). Therefore, the 2007 budgets supersede the 1999 budgets. As a result, all new and revised State Transportation Improvement Programs that require a conformity determination must conform to these 2007 budgets, not the 1999 budgets contained in the post-1996 rate of progress plan.

EPA's review of this material indicates that Connecticut has met the ROP requirements of the Act, and therefore EPA is proposing to approve the Connecticut post-1996 ROP plans that were submitted as revisions to the State's SIP on December 31, 1997 and January 7, 1998. EPA also proposes approval of minor revisions to the State's 1990 base year inventory. EPA is soliciting public comments on the issues discussed in this document or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA Regional office listed in the ADDRESSES section of this document.

EPA is proposing to approve the rate-of-progress SIP revision and minor revisions to the 1990 base year inventory submitted by Connecticut on December 31, 1997 and January 7, 1998 as a revision to the SIP.

EPA is soliciting public comments on the issues discussed in this proposal or on other relevant matters. These comments will be considered before EPA takes final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA Regional office listed in the ADDRESSES section of this action.

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any State implementation plan. Each request for revision to the State implementation plan shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule 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 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

This is a summary of the Commission's Notice of Proposed Rulemaking (“NPRM”), FCC 00-195, adopted May 31, 2000; released June 9, 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. Section 338(a)(1) of the Communications Act, adopted as part of the Satellite Home Viewer Improvement Act of 1999 (“SHVIA”), provides that after December 31, 2001: each satellite carrier providing [television broadcast signals under the compulsory copyright licensing system] to subscribers located within the local market of a television broadcast station of a primary transmission made by that station shall carry upon request the signals of all television broadcast stations located within that local market, subject to section 325(b) [retransmission consent requirement].

2. In this NPRM, we seek comment on the appropriate rules to implement this requirement. The SHVIA authorizes satellite carriers to offer more local and national broadcast programming to their viewers and makes that programming available to subscribers who previously have been prohibited from receiving broadcast programming via satellite under the compulsory licensing provisions of the copyright law. The SHVIA generally seeks to place satellite carriers on an equal footing with cable operators regarding the provisions of local broadcast programming, and thus give consumers more competitive options in selecting a multichannel video program distributor (“MVPD”). It is the clear intent of both Congress and the Commission to provide satellite subscribers with local television service in as many markets as possible.

3. Among other things, this new legislation requires satellite carriers, by January 1, 2002, to carry upon request all local broadcast stations' signals in local markets in which the satellite carriers carry at least one broadcast station signal licensed to the subject television market pursuant to section 122 of title 17, United States Code. The SHVIA conference report added the cross-reference to section 122 to the House provision to indicate the relationship between the benefits of the statutory license and the carriage requirements imposed by this Act. Until January 1, 2002, satellite carriers are granted a royalty-free copyright license to retransmit broadcast signals on a station-by-station basis, subject to obtaining a broadcaster's retransmission consent. This transition period is intended to provide the satellite industry with time to begin providing local signals into local markets—“local-into-local” satellite service. The applicable statutory provisions, noted in greater detail below, are found in section 1008 of the SHVIA and codified at section 338 of the Communications Act of 1934, as amended (the “Communications Act” or “Act”).

4. In 1988, Congress passed the Satellite Home Viewer Act (“1988 SHVA”) in order to provide households in unserved areas of the country with access to broadcast programming via satellite. The 1988 SHVA also reflected Congress' intent to maintain the role of local broadcasters in providing free, over-the-air television. As an amendment to the Copyright Act, the 1988 SHVA accommodated the broadcasters' interests by only allowing satellite carriers to provide broadcast programming to those satellite subscribers who were unable to obtain broadcast network programming over-the-air. Since 1988, subscribership to direct-to-home satellite service has increased markedly.

5. In the SHVIA, Congress amended the law so as to permit satellite carriers to provide the signals of local broadcast stations to subscribers residing in the broadcaster's market. After December 31, 2001, satellite carriers that provide local-into-local retransmission of broadcast stations pursuant to the statutory copyright license must “carry upon request the signals of all television broadcast stations within that local market * * *.” The SHVIA requires the Commission to issue rules implementing this carriage requirement within one year of the SHVIA's enactment on November 29, 1999. Congress has indicated that these requirements should be comparable to those for cable systems, specifically noting paragraphs (3) and (4) of section 614(b) and paragraphs (1) and (2) of section 615(g), presently found in the mandatory broadcast signal carriage provisions in Title VI of the Act.

6. In Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Broadcast Signal Carriage Issues (“Broadcast Signal Carriage Order”), the Commission implemented the broadcast signal carriage provisions of the Cable Television Consumer Protection and Competition Act of 1992 (“1992 Cable Act”). This statute the Communications Act to provide television stations with certain carriage rights on local market cable television systems. Sections 614 and 615 of the Act contain the cable television “must carry” requirements for commercial and noncommercial television stations, respectively. Section 325 contains retransmission consent requirements pursuant to which cable operators may be obligated to obtain the consent of commercial broadcasters before retransmitting their signals. Within local market areas, commercial television stations may elect cable carriage under either the retransmission consent or mandatory carriage requirements. Noncommercial television stations may only opt for must carry under the Act, but may nevertheless agree to be carried on a voluntary basis.

7. There are important distinctions between cable operators and satellite carriers that are implicated in attempting to harmonize section 338 with sections 614 and 615. The first significant difference is that satellite carriers have uplink facilities that are used to receive, package, and retransmit video programming. In contrast, cable operators receive, process, and distribute video programming from a local facility called a headend. This distinction is important because many cable carriage rules, such as the carriage requirement for local noncommercial television stations, rely upon the location of the cable operator's principal headend, a facility not used by satellite carriers. Second, satellite carriers have no legal obligation to have a basic service tier. Thus, they are under no obligation to place broadcast signals on such a tier of service as cable operators are required to do under the Act. Rather, section 338(d) requires satellite carriers to position local broadcast station signals on contiguous channels. Third, a satellite carrier has a general obligation to carry all television stations in a market, if it carriers one station in that market through reliance on the statutory license, without reference to a channel capacity cap. In contrast, a cable system with more than 12 usable activated channels is required to devote no more than one-third of the aggregate number of usable activated channels to local commercial television stations that may elect mandatory carriage rights. A cable system is also obligated to carry a certain number of qualified noncommercial educational television stations above the one-third cap. Fourth, satellite carriers provide a national service and need not have a franchise from local or state authorities to serve subscribers with any type of television signal nor do they have local access channel requirements. Cable operators, on the other hand, serve local franchise areas under franchise agreements with either local, county, or state authorities. Local franchise authorities often impose technical and system build-out requirements, as well as public, educational, and government access channel requirements, on cable operators. Finally, we note that 82% of all multichannel video programming distributor subscribers receive their video programming from a local franchised cable operator, while the satellite industry represents less than 15% of all MVPD subscribers. We will take into account these differences between the two industries in order to sensibly implement the requirements of section 338.

8. Direct broadcast satellite (“DBS”) operators use satellites to transmit video programming to subscribers, who must buy or rent a small parabolic “dish” antenna and pay a subscription fee to receive the programming service. To obtain local television signals for local distribution, DBS companies may receive the signals over-the-air or have voluntary arrangements with local stations to deliver their signals via fiber-optic cables to a local telecommunications carrier's facilities. At a certain point designated by the satellite carrier, all of the broadcast signals are digitally encoded and multiplexed together. The packet of digitized television signals are then sent, using a high capacity (DS3) line, to the satellite carriers' programming facility, or group of facilities, where they are uplinked to the appropriate satellite and then retransmitted back to subscribers' dishes in the relevant stations' market of origin.

9. The home satellite dish industry, also known as HSD or C-Band, is another type of satellite carrier subject to the SHVIA and its related provisions. C-Band subscribers use a much larger dish, some seven to ten feet in diameter, to receive video programming than that equipment used for reception by DBS subscribers. C-Band subscribers are often located in rural areas that are unserved by cable operators.

10. The SHVIA has accorded satellite carriers the right to retransmit local television stations without first obtaining retransmission consent, and without a mandatory carriage obligation, for a six month period from November 29, 1999 to May 28, 2000. Beginning on May 29, 2000 and continuing until December 31, 2001, carriage of broadcast television stations by satellite carriers is a station-by-station basis pursuant to retransmission consent agreement between the station and the satellite carrier. On January 1, 2002, pursuant to section 338(a)(1) of the Act: Subject to the limitations of paragraph (2) [remedies for failure to carry], each satellite carrier providing, under section 122 of title 17, United States Code, secondary transmissions to subscribers located within the local market of a television broadcast station of a primary transmission made by that station shall carry upon request the signals of all television broadcast stations located within that located market, subject to section 325(b). This provision gives satellite carriers a choice. If satellite carriers provide their subscribers with the signals of local television stations through reliance on the statutory copyrights license, they will have the obligations to carry all of the television signals in that particular market that request carriage. If satellite carriers provide local television signals pursuant to private copyright arrangements, the section 338 carriage obligations do not apply.

11. In order to effectuate section 338, it is necessary to determine what constitutes a request for carriage, adopt procedural guidelines regarding the manner in which a broadcaster communicates its request for carriage, and set out guidelines for the satellite carrier to commence carriage. In this context, we seek comment on the meaning of the phrase “carry upon request.” In the cable context, the Commission initially required the cable operator to contact all local broadcast television stations, in writing, on matters relating to their carriage rights. We ask whether we should establish a similar requirement, so that satellite carriers must notify all local broadcast television stations, in writing, of their carriage rights once any local station in a particular market is being carried. We note that broadcast television stations requesting carriage must do so in writing—cable marriage of local broadcast television stations requesting mandatory carriage then commences on a specified date when the request is part of the periodic election process. We ask whether we should adopt similar procedural rules in the satellite carriage context. We also ask whether we should adopt separate procedural rules for the carriage of noncommercial educational television stations to mirror the cable carriage requirements. In addition, we ask whether the Commission should establish separate procedures to cover new broadcast stations that may commence operation in a market or for new satellite carriers similar to those established for cable carriage. Finally, we seek comment on how the section 338 mandate will work with the revised section 325 provision regarding satellite carriers and retransmission consent.

12. Section 338 contains several definitions that provide the framework for the satellite broadcast signal carriage paradigm. While these definitions are generally self effectuating, such as the meaning of “satellite carrier,” “secondary transmission,” and “subscriber,” two provision require further explication to understand the scope of the satellite carriage obligation. These two provisions are as follows:

Television Broadcast Station. Section 338(h)(7) defines the term, television broadcast station, as having the meaning given such term in section 325(b)(7). Section 325(b)(7) defines television broadcast station, as an over-the-air commercial or noncommercial television broadcast station licensed by the Commission under subpart E of part 73 of title 47, Code of Federal Regulations, except that such term does not include a low-power or translator station. We seek comment on the scope of the definition. We first note that, unlike cable operators, satellite carriers have no obligation to carry low power television stations in any instance. We also note that, unlike cable operators, satellite carriers are not required to carry noncommercial educational translator stations with five watts or higher power. We seek comment on these apparent differences and what impact they have on a satellite carrier's carriage responsibilities under section 338. A question also remains about whether satellite carriers must carry “satellite television stations” as cable operators are required to do. We believe that since television stations are not specifically excluded by section 338(h)(7), satellite carriers have an obligation to carry these entities if they carry other local market television stations. We seek comment on this interpretation. Finally, we ask if there are any other significant differences between the satellite carriage and cable carriage definitional requirements that affect this proceeding.

Distributor. Section 338(h)(1) of the Communications Act defines the term, distributor, as an “entity which contracts to distribute secondary transmissions from a satellite carrier and, either as a single channel or in a package with other programming, provides the secondary transmission either directly to individual subscribers or indirectly through other program distribution entities.” We note that the term distributor is not found in any other provision of section 338, other than the definitional subsection. Given this omission, which may or may not have been purposeful, we seek comment on the definition of distributor and its relevance in this context.

13. Section 338(h)(3) defines the term, local market, as having the meaning it has under section 122(j) of title 17, United States Code. Section 122(j)(2)(A) defines the term, local market, in the case of both commercial and noncommercial television broadcast stations, to mean the designated market area in which a station is located, and (i) in the case of a commercial television broadcast station, all commercial television broadcast stations licensed to a community within the same designated market area within the same local market; and (ii) in the case of a noncommercial educational television broadcast station, the market includes any station that is licensed to a community within the same designated market area as the noncommercial educational television broadcast station. In addition to the area described in subparagraph (A), a station's local market includes the county in which the station's community of license is located. Section 122(j)(2)(C) defines the term, designated market area to mean the market area as determined by Nielsen Media Research and published in the 1999-2000 Nielsen Station Index Directory and Nielsen Station Index United States Television Household Estimates or any successor publication.

14. At the outset, we inquire as to why subsections (i) and (ii) were added to the overall section. It appears that they clarify that the local market includes a geographic area and all broadcast stations licensed or located within that designated area. We seek comment on this view of subsections (i) and (ii). We also seek comment on when to change the reference to the 1999-2000 Nielsen publications to reflect changes in market structure and market conditions. We note, in the cable context, that the rules account for a market update every three years. We ask whether the rules we implement under this section should be updated on a triennial basis, at another interval ( e.g., every year, every five years, etc.) or not at all. We also note that the cable industry is required to use the 1997-98 Nielsen publications to determine local markets for broadcast signal carriage purposes up until January 1, 2003, yet satellite carriers are obliged to use the 1999-2000 Nielsen publications for carriage purposes. We ask whether satellite carriers and cable operators should be required to use the same annual Nielsen market publications so that both may rely on the same market definition, and thus have virtually the same carriage obligations.

15. It is important to note that a regulatory mechanism exists to expand or contract the size of a local television market for cable broadcast signal carriage purposes. Pursuant to section 614(h)(1)(C), at the request of either a broadcaster or a cable operator, the Commission may, with respect to a particular commercial television broadcast station, include additional communities within its television market or exclude communities from such station's television market to better effectuate the purposes of the Act's mandatory carriage provisions. In considering market modification requests, the Act provides that the Commission shall afford particular attention, “to the value of localism” by taking into account such factors as (1) whether the station, or other stations located in the same are, have been historically carried on the cable system or systems within such community; (2) whether the television station provides coverage or other local service to such community; (3) whether any other television station that is eligible to be carried by a cable system in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; and (4) evidence of viewing patterns in cable and non-cable households within the areas served by the cable system or systems in such community. The Commission's inclusion of additional communities within a station's market imposes new carriage requirements on cable operators subject to the modification request while the grant to exclude communities from a station's market relieves a cable operator from its obligation to carry a certain station's television signal.

16. No such statutory mechanism exists for satellite broadcast signal carriage purposes in section 338. As a result, different carriage patterns may emerge between cable operators and satellite carriers in certain markets because a cable operator may be carrying stations that have expanded their market area while not carrying others because those stations were deleted from the relevant market area. We seek comment on whether the Commission has the authority to implement a market modification mechanism similar to section 614(h) in order to provide satellite carriers and broadcast stations the ability to modify markets for satellite carriage purposes. If so, should we use the same procedural and evidentiary standards used for cable market modifications? Alternatively, should the Commission's previously granted market modifications be applicable to satellite carriers in the affected market areas? We seek comment on whether Commission action in this area may further the Congressional goal of harmonizing the carriage obligations between cable operators and satellite carriers.

17. Section 338(b)(1) states that, “A television broadcast station asserting is right to carriage under subsection (a) shall be required to bear the costs associated with delivering a good quality signal to the designated local receive facility of the satellite carrier or to another facility that is acceptable to at least one-half the stations asserting the right to carriage in the local market.” A host of novel technical and definitional questions arise under this particular provision.

18. We first seek comment on the term “local receive facility.” Section 338(h)(2) defines the term local receive facility as “the reception point in each local market which a satellite carrier designates for delivery of the signal of the station for purposes of retransmission.” There are a variety of possible technical configurations that a satellite carrier might use the receive, uplink, and distribute local market broadcast signals. Direct broadcast satellite operators, such as DirectTV and Echostar, generally appear to have one central uplink facility in the center of the country that relays content from the ground to the satellites involved. Broadcast signals from broadcast markets across the country need to be delivered to this facility. This could be accomplished using either a satellite or a terrestrial relay. It appears likely that the most economically feasible means would be to aggregate the signals in each local market at one point and deliver them over the facilities of an interstate telecommunications carrier to the uplink site(s). If this is correct, the “local receive facility” would be co-located at suitable carrier's switching center or “point-of-presence.” We seek comment on whether such a facility should be considered the “local receive facility” for purpose of section 338. We note that local receive facilities could also resemble, in a technical sense, a cable operator's headend, because that is where signals are received and processed. We seek comment on the parameters under which a satellite carrier may construct and designate such a facility. Aside from the above stated options, we also seek comment on other reception points a satellite carrier can consider to satisfy the provision's requirements. Finally, we seek comment on the procedures by which a satellite carrier must inform local market television stations of the location of the receive facility.

19. In addition, we seek comment on the meaning of the statutory phrase, “to another facility that is acceptable to at least one-half the stations asserting the right to carriage in the local market.” We read the statute to mean that a satellite carrier may establish a regional receive facility as long as one-half of broadcasters agree to that location. For example, a satellite carrier may establish a receive facility for all of New England, which encompasses several DMAs, as long as 50% of the relevant broadcasters agree on the location. We seek comment on this interpretation. We also inquire about the process by which broadcast television stations agree to the establishment and location of another facility. What did Congress intend when it included the term “acceptable?” What happens with those broadcast stations that do not agree to the location of the other facility? Who should pay to transmit the broadcast signals to such a facility? May the stations in the minority file a complaint with the Commission concerning the location of such a facility?

20. We also inquire about what constitutes a “good quality signal” as the term is used in section 338. Under the current cable carriage regime, television broadcast stations must deliver either a signal level of −45dBm for UHF signals or −49dBm for VHF signals at the input terminals of the signal processing equipment, to be considered eligible for carriage. We note that a broadcaster that does not provide a good quality signal to a cable system headend is not qualified for carriage. In this situation, a cable system is under no obligation to carry such a signal, but the broadcaster has an opportunity to provide equipment necessary to improve its signal to the requisite level and gain carriage rights. We seek comment on whether Congress intended the same result for broadcasters that do not provide a good quality signal to the local satellite receive facility. We also seek comment on whether the signal quality parameters under section 614 and the Commission's cable regulations are appropriate in the satellite carriage context.

21. With respect to the manner of testing for a good quality signal, we note that the Commission has adopted a method for measuring signal strength in the cable carriage context. Generally, if a test measuring signal strength results in an initial reading of less than −51 dBm for a UHF station, at least four readings must be taken over a two-hour period. If the initial readings are between −51 dBm and − dBm, inclusive, readings must be taken over a 24-hour period with measurements not more than four hours apart to establish reliable test results. For a VHF station, if the initial readings are less than −55 dBm, at least four readings must be taken over a two-hour period. Where the initial readings are between −55 dBm and −49 dBm, inclusive, readings should be taken over a 24-hour period, with measurements no more than four hours apart to establish reliable test results. The Commission stated that cable operators are further expected to employ sound engineering measurement practices; thus, signal strength surveys should, at a minimum, include the following: (1) Specific make and model number of the equipment used, as well as its age and most recent date(s) of calibration; (2) description(s) of the characteristics of the equipment used, such as antenna ranges and radiation patterns; (3) height of the antenna above ground level and whether the antenna was properly oriented; and (4) weather conditions and time of day when the test were done. We seek comment on whether we should require the same signal testing practices for measuring a broadcaster's signal strength in the satellite context.

22. We also seek comment on the cost of delivering a good quality signal. Under the mandatory cable carriage provisions of section 614, television stations are “required to bear the costs associated with delivering a good quality signal or a baseband video signal to the principal headend of the cable system.” The Commission has stated that such costs may be for “improved antennas, increased tower height, microwave relay equipment, amplification equipment and tests that may be needed to determine whether the station's signal complies with the signal strength requirements, especially if the cable system's over-the-air reception equipment is already in place and is otherwise operating properly.” We seek comment on which of these cost elements in the cable context are applicable in the satellite context. Are there any additional costs, in a section 338 setting, that are not mentioned above?

23. Section 338(c)(1) states that: Notwithstanding subsection (a), a satellite carrier shall not be required to carry upon request the signal of any local commercial television broadcast station that substantially duplicates the signal of another local commercial television broadcast station which is secondarily transmitted by the satellite carrier within the same local market, or to carry upon request the signals of more than one local commercial television broadcast station in a single local market that is affiliated with a particular television network unless such stations are licensed to communities in different states.

24. Section 614(b)(5) similarly provides that a cable operator is not required to carry the signal of any local commercial television station that substantially duplicates the signal of another local commercial television station which is carried on its cable system, or to carry the signals of more than one local commercial television station affiliated with a particular broadcast network. The Commission has decided that, based on the legislative history of this section, two stations “substantially duplicate” each other “if they simultaneously broadcast identical programming for more than 50 percent of the broadcast week.” For purposes of this definition, identical programming means the identical episode of the same program series. The Commission noted that its interpretation was consistent with the 1992 Cable Act's legislative history that indicates that this phrase refers to the “simultaneous transmission of identical programming on two stations” and which “constitutes a majority of the programming on each station.” We seek comment on whether we should apply the Commission's determination of what constitutes “substantial duplication” under Title VI to this section of the SHVIA.

25. We seek comment on the phrase, “affiliated with a particular television network.” In this situation, we ask what definition of “television network” applies under this provision because that term is not specifically defined in section 338. We note that section 339(d) includes a definition of television network for purposes of satellite carriage of distant signals: “The term ‘television network’ means a television network in the United States which offers an interconnected program service on a regular basis for 15 or more hours per week to at least 25 affiliated broadcast stations in 10 or more States.” We ask whether we should implement the section 339(d) definition for the purposes of administering the duplication provision at issue here. Are there any alternative definitions that we should consider?

26. We also inquire about the application of the statutory phrase, “unless such stations are licensed to communities in different states.” Congress stated that this phrase addresses unique and limited cases, including such station pairs as WMUR (Manchester, New Hampshire) and WCVB (Boston, Massachusetts) in the Boston DMA (both ABC affiliates) as well as WPTZ (Plattsburg, New York) and WNNE (White River Junction, Vermont) in the Burlington-Plattsburgh DMA (both NBC affilates), in which mandatory carriage of both duplicating local stations upon request assures that satellite subscribers will not be precluded from receiving the network affiliate that is licensed to a community in the state in which they reside. We seek comment on whether there are other similar situations that must be addressed as we proceed with adopting rules here. In addition, we seek comment on whether there are other regulatory issues that may arise in this situation.

27. Section 338(c)(2) states that: The Commission shall prescribe regulations limiting the carriage requirements under subsection (a) of satellite carriers with respect to the carriage of multiple local noncommercial television broadcast stations. To the extent possible, such regulation shall provide the same degree of carriage by satellite carriers of such multiple stations as is provided by cable systems under section 615. Section 615(l)(1), in turn, provides that a local noncommercial educational television (“NCE”) station qualifies for cable carriage rights if it is licensed by the Commission as an NCE station and if it is owned and operated by a public agency, nonprofit foundation, or corporation or association that is eligible to receive a community service grant from the Corporation for Public Broadcasting. An NCE station is also considered qualified if it is owned and operated by a municipality and transmits predominantly noncommercial programs for educational purposes. For purposes of cable carriage, an NCE station is considered local if its community of license is within 50 miles of, or the station places a Grade B contour over, the principal headend of the cable system. Cable systems are obliged to carry local noncommercial educational television stations under a statutory paradigm based upon a cable system's number of usable activated channels. Cable systems with: (1) 12 or fewer usable activated channels are required to carry the signal of one qualified local noncommercial educational station: (2) 13-36 usable activated channels are required to carry no more than three qualified local noncommercial educational stations; and (3) more than 36 usable activated channels shall carry at least three qualified local noncommercial educational stations. At the outset, we seek comment on whether this approach is applicable in the satellite context.

28. A cable operator with cable system capacity of more than 36 usable activated channels, and carrying the signals of three qualified NCE stations, is not required to carry the signals of additional stations the programming of which substantially duplicates the programming broadcast by another qualified NCE station requesting carriage. The Act states that substantial duplication was to be defined by the Commission in a manner that promotes access to distinctive noncommercial educational television services. The Commission concluded that an NCE station does not substantially duplicate the programming of another NCE station if at least 50 percent of its typical weekly programming is distinct from programming on the other station either during prime time or during hours other than prime time. We first seek comment on whether Congress, in drafting section 338(c)(2) meant for the Commission to focus solely on the substantial duplication language of section 615 to limit satellite carriage of NCE stations or whether it intended the Commission to prescribe other means to limit such carriage. If Congress meant for the Commission to concentrate on duplication, we ask whether we should apply the definition set forth in the cable carriage context or whether we should devise a new definition for satellite carriage purposes. If we are to develop additional carriage limitations, we ask what other rules should the Commission adopt to more narrowly tailor an NCE satellite carriage requirement to make it comparable to the NCE carriage obligations imposed on cable operators.

29. Section 338(d) of the Communications Act states that: No satellite carrier shall be required to provide the signal of a local television broadcast station to subscribers in that station's local market on any particular channel number or to provide the signals in any particular order, except that the satellite carrier shall retransmit the signal of the local television broadcast stations to subscribers in the stations' local market on contiguous channels and provide access to such station's signals at a nondiscriminatory price and in a nondiscriminatory manner on any navigational device, on- screen program guide, or menu. The Conference Report notes that the obligation to carry local stations on contiguous channels is to ensure that satellite carriers position local stations in a way that is convenient and practically accessible for consumers. The statutory directive for channel positioning clearly states that satellite carriers are required to present local broadcast channels to satellite subscribers in an uninterrupted series. We seek comment, however, on whether broadcast signals carried under retransmission consent must be contiguous with the television stations carried under section 338 or whether they may be presented to satellite subscribers in a non-contiguous manner.

30. We also seek comment on the phrase, “provide access to such station's signals at a nondiscriminatory price and in a nondiscriminatory manner on any navigational device, on-screen program guide, or menu.” We specifically seek comment on what rules the Commission should develop to ensure that television stations are accessible to satellite subscribers on nondiscriminatory terms. We ask whether there are any existing Commission rules that we may use as a model to develop regulations for this particular situation. We ask whether Congress meant that television station signals carried pursuant to mandatory carriage requests may cost no more per channel to subscribers than packages of retransmission consent television station signals or other satellite service packages. We seek comment on whether Congress meant that electronic program guide information concerning required television station signals should be presented to subscribers in the same fashion as other programming services provided by the satellite carrier.

31. Section 338(g) states that, “The regulations prescribed [under section 338] shall include requirements on satellite carriers that are comparable to the requirements on cable operators under section 614(b)(3) * * * and 615(g)(1).” Section 614(b)(3) states that: A cable operator shall carry in its entirety, on the cable system of that operator, the primary video, accompanying audio, and line 21 closed caption transmission of each of the local commercial television stations carried on the cable system and, to the extent technically feasible, program-related material carried in the vertical blanking interval or on subcarriers. Retransmission of other nonprogram-related material (including teletext and other subscription and advertiser supported information services) shall be at the discretion of the cable operator. Where appropriate and feasible, operators may delete signal enhancements, such as ghost canceling, from the broadcast signal and employ such enhancements at the system headend or headends.

32. Section 615(g)(1), which is the noncommercial equivalent of the commercial television station provision in section 614(b)(3), states that: A cable operator shall retransmit in its entirety the primary video, accompanying audio, and line 21 closed caption transmission of each qualified local noncommercial educational television station whose signal is carried on the cable system, and, to the extend technically feasible, program-related material carried in the vertical blanking interval, or on subcarriers, that may be necessary for receipt of programming by handicapped persons or educational or language purposes. Retransmission of other material in the vertical blanking interval [“VBI”] or on subcarriers shall be within the discretion of the cable operator.

33. We seek comment on the applicability of these requirements in the satellite carriage context, especially in light of the terms “comparable” contained in section 338(g), above. We recognize that the Commission has not specifically defined “primary video” in the rules and has instead relied on the language of section 614(b)(3)(B) to clarify the scope of the term for purposes of cable broadcast signal carriage. In view of this history, we seek comment on whether a specific definition of primary video is required for satellite carriers to fulfill the requirements contained in section 338.

34. In the Broadcast Signal Carriage Order, the Commission decided that the factors enumerated in WGN Continental Broadcasting, Co. v. United Video Inc. (“WGN”) provided useful guidance for what constitutes program-related material. The WGN case addressed the extent to which the copyright on a television program also included program material in the VBI of the signal. The WGN court set out three factors for making a copyright determination. First, the broadcaster must intend for the information in the VBI to be seen by the same viewers who are watching the video signal. Second, the VBI information must be an integral part of the program. The court in WGN held that if the information in the VBI is intended to be seen by the viewers who are watching the video signal, during the same interval of time as the video signal, and as an integral part of the program on the video signal, then the VBI and the video signal are one copyrighted expression and must both be carried if one is to be carried. We seek comment on whether the WGN program-related analysis applies in the context of satellite broadcast signal carriage.

35. With regard to the “technical feasibility” of the carriage of program-related material in the VBI or on subcarriers, the Commission stated in the Broadcast Signal Carrier Order that such carriage should be considered “technically feasible” if it does not require the cable operator to incur additional expenses and to change or add equipment in order to carry such material. The Commission noted that it would consider signal carriage to be “technically feasible” if only nominal costs, additions or changes of equipment are necessary. We seek comment on whether the consideration of technical feasibility should be different in the context of satellite broadcast signal carriage.

36. Finally, we note that satellite carriers are required to pass through closed captions regardless of the particular arrangements by which the broadcast station is carrier. Section 79.1 of the Commission's rules, adopted to implement section 713 of the Act, requires that all video programming distributors, as defined in § 79.1(a)(2) of the Commission's rules, shall deliver all programming received from the video programming owner or other origination source containing closed captioning to receiving television households with the original closed captioning data intact in a format that can be recovered and displayed by decoders meeting the standards of § 15.119 of the Commission's rules. We take this opportunity to ask whether satellite carriers have, or will have, any difficulties in passing through closed captioning information to its subscribers. If so, wee seek comment on what measures the Commission should take to ensure that captioning information reaches its intended audience.

37. Section 338(g) states that, “The regulations prescribed [by the Commission under section 338] shall include requirements on satellite carriers that are comparable to the requirements on cable operators under sections 614(b)(4) * * * and 615(g)(2).” Section 614(b)(4)(A) states that, “The signals of local commercial television stations that a cable operator carriers shall be carried without material degradation. The Commission shall adopt carriage standards to ensure that, to the extent technically feasible, the quality of signal processing and carriage provided by a cable system for the carriage of local commercial television stations will be no less than that provided by the system for carriage of any other type of signal.” Section 615(g)(2), which is the noncommercial equivalent of the commercial television station provision in section 614(b)(4), states that, “A cable operator shall provide each qualified local noncommercial educational television station whose signal is carried in accordance with this section with bandwidth and technical capacity equivalent to that provided in commercial television broadcast stations carried on the cable system and shall carry the signal of each qualified local noncommerical educational television station without material degradation.”

38. The Conference Report noted that because of unique technical challenges on satellite technology and constraints on the use of satellite spectrum, satellite carriers may initially be limited in their ability to deliver must carry signals into multiple markets. According to the Conference Report: “New compression technologies, such as video streaming, may help overcome these barriers, and if deployed, could enable satellite carriers to deliver must carry signals into many more markets than they could otherwise.” The Commission is urged, pursuant to its obligations under section 338, or in any other related proceedings, “to not prohibit satellite carriers from using reasonable compression, reformatting, or similar technologies to meet their carriage obligations, consistent with existing authority.”

39. When implementing the material degradation provision for cable carriage, the Commission relied on the technical standards as updated in the Cable Technical Report and Order, in defining the scope of the requirement. The Cable Technical Report and Order specifically addressed the issue of preventing material degradation of local television signals carried on cable systems by adopting a number of technical standards and providing that cable operators must make reasonable efforts and use good engineering practices and proper equipment to guard against unnecessary degradation in the signal received and delivered to the cable subscriber. The Commission stated that the standards adopted in the Cable Technical Report and Order were sufficient to satisfy the material degradation requirements contained in the 1992 Cable Act. In declining to adopt regulations in addition to those found in the Cable Technical Report and Order, the Commission stated that further rules may have the unwarranted effect of impeding technological advances and experimentation in the cable industry. Standards specific to digital communications were not adopted. Given the technological differences between cable operators and satellite carriers, we seek comment on whether reliance on Commission precedent in the cable carriage context regarding material degradation is appropriate and whether technical standards mirroring those in the cable television field would be warranted. We seek comment on whether we should develop new rules for satellite carriers, and if so what such rules should be, consistent with the Congressional direction on digital compression and taking into account the unique technical aspects of satellite carriage of broadcast signals.

40. It is important to note that our concerns here revolve around the satellite carrier's treatment of the broadcast signal on the equipment it controls or authorizes. Thus, our focus does not involve picture quality issues that may arise because of the type of television receiver used since the satellite carrier has little control over the use of these devices. Moreover, our analysis of material degradation recognizes that dish placement on or near the subscriber's premises can affect the quality of the picture received, but that the satellite carrier cannot control how and where dishes are installed.

41. We understand that satellite carriers use a different modulation system from cable operators—quadrature phase-shift keying or “QPSK”—as the principal format when transmitting video programming. Thus, it is important to note at this juncture, the technical steps in the digital conversion process affecting the material degradation analysis. In satellite digital television systems, such as those implemented by DirecTV and Echostar, there are four layers of the systems where video quality may be affected. The first layer, known as the picture layer, is where decisions are made regarding the use of progressive or interlace scanning techniques as well as whether the picture will be produced in a standard definition or high definition format. The choices made in this layer will not likely affect the quality of retransmitted analog broadcasts. In the second layer, the compression layer, decisions are made regarding the types of compression techniques used. The relevant digital standard, MPEG-2, supports a wide range of compression ratios and data rates. At this layer, the satellite carrier attempts to maximize the number of channels carried on each transponder and there is an effort to place a limit on the maximum data rate of each channel. Limiting the data rate may cause the picture quality to degrade, especially when certain video scenes involve rapid motion images or there is a greater degree of camera panning and zooming. The third layer is known as the transport layer and this is where the data are structured and organized into data packets. Since most digital video systems use the MPEG packet structure, there is little likelihood that any type of degradation would occur at this level. The final layer is the transmission layer and this is where data are modulated on to a carrier for transmission. The use of high efficiency modulation techniques, such as the cable industry's QAM standard, permit greater data rate throughput. QPSK, however, is a lower order modulation and requires satellite carriers to limit the data rate or increase channel bandwidth. The chances for degradation to occur at this level are tied to the limiting data rate technique in the compression layer.

42. We specifically note that degradation may result when the satellite carrier encodes an analog broadcast signal and readies it for digital retransmission. During the encoding process, certain artifacts may be introduced into the original material that would have an effect on picture quality. The most dominant artifact is quantization noise in the picture. This effect is often visible on edges of subjects and textured areas of the image. It is caused when there is a high amount of picture detail along with a high degree of picture activity and levels of quantization are restricted due to data rate reduction. Random noise can also be introduced into the source video. This can result in activity or “busyness” in detail areas of the picture and tiling or flicker in other areas of the picture. Such effects are caused by the encoder attempting to encode random noise. During the encoding process, data rate reduction in combination with rapid picture changes may result in another artifact known as the “dirty window,” where noise appears stationary while the images behind it are moving.

43. Understanding that satellite carriers use the technical process described above in retransmitting analog broadcast signals, and keeping in mind Congress's express statement that any reasonable type of digital compression technique is permissible, we seek comment on how to define material degradation for purposes of section 338. The focus of our concern in this context is where the satellite carrier has made a conscious decision to increase the number of channels carried to the detriment of picture quality. Thus, we seek comment on how to define the term “material,” but in the context of a deliberate action on the part of the satellite carrier. For example, when a broadcast television station freezes, “tiles” or looks “dirty” due to a satellite carrier's choice of encoding and compression techniques, should that be considered “material” or “immaterial” degradation? We also seek comment on whether there are certain compression ratios or encoding techniques that should be prohibited because their use would result in material degradation.

44. Aside from the matters discussed above, questions arise as to what standards and measurement techniques the Commission should employ where specific broadcast signal quality disputes arise. In the cable carriage context, where an operator carries the broadcaster's analog television signal, issues such as signal to noise ratios and ghosting have been the focus of concern. In the satellite carriage situation, where an analog broadcast signal is digitally transmitted by a satellite carrier, picture resolution is still important but bit error rates and data throughput are also relevant. Moreover, the technical standards that are employed to evaluate cable analog picture quality were adopted and refined over the course of many decades, yet the Commission has had relatively little experience in evaluating the analog to digital to analog conversion of the type involved in satellite broadcast signal carriage. We seek suggestions for measurement standards that may be used in addressing signal degradation issues.

45. We also have questions concerning the phrase “similar technologies to meet their carriage obligations” as it is found in this section's legislative history. We first ask what is meant by the term “similar technologies.” Are there any limits as to the kind of technologies a satellite carrier may use to fulfill its statutory mandates under section 338? We specifically seek comment on whether the phrase encompasses “spot beaming,” where a satellite carrier delivers programming to a discrete geographical location using a specialized satellite. If so, what are the implications for using such technology in the satellite broadcast signal carriage context.

46. Section 338(g) states: “The regulations prescribed [by the Commission under Section 338] shall include requirements on satellite carriers that are comparable to the requirements on cable operators under sections 614(b)(4) * * *.” Section 614(b)(4)(B) of the Act provides: “At such time as the Commission prescribes modifications of the standards for television broadcast signals, the Commission shall initiate a proceeding to establish any changes in the signal carriage requirements of cable television systems necessary to ensure cable carriage of such broadcast signals of local commercial television stations which have been changed to conform with such modified standards.” The Conference Report stated: “By directing the FCC to promulgate these must carry rules [found in section 338], the conferees do not take any position regarding the application of must-carry rules to carriage of digital television signals by either cable or satellite systems.”

47. The Commission has adopted rules establishing a transitional process for the conversion from an analog to a digital form of broadcast transmission. The rules allow each existing analog television licensee or each eligible permittee to construct or operate digital facilities with a roughly comparable service area using 6 MHz of spectrum, in addition to the 6 MHz of spectrum used for analog broadcasting. The broadcast station will transmit a signal consistent with the standards adopted in Advanced Television Systems and Their Impact Upon the Existing Television Broadcast Service, Fourth Report and Order in MM Docket No. 87-268, giving it the flexibility to broadcast in a high definition mode, in a multiple program standard definition mode, in a datacasting mode, or a mixture of all three. During the transition period, both the analog and digital television signals will be broadcast. At the end of the transition which is scheduled for the year 2006, with certain statutory exceptions, the station is to cease broadcasting an analog signal and will return to the government 6 MHz of spectrum.

48. The rules governing the transition from analog to digital broadcasting are found in Advanced Television Systems and Their Impact Upon the Existing Television Broadcast Service, Fifth Report and Order in MM Docket 87-268 (“Fifth Report and Order”). The Fifth Report and Order set forth a phased-in implementation schedule for the introduction of digital broadcast television. Construction requirements vary depending on the size of the television market and other factors.

49. In July 1998, the Commission commenced a proceeding to determine the carriage obligations cable operators should have with regard to a broadcast station's digital television signal during the transition period to digital television. We sought comment on that proceeding on how to accomplish the Congressional goals reflected in Sections 614, 615, and 325 of the Act in light of the significant changes to the relevant industries resulting from the conversion to digital operations. The thrust of the proceeding was to examine the timing and scope of digital broadcast signal carriage obligations for cable operators. The Commission proposed seven carriage options for the transition period ranging from an immediate dual carriage regime, where a cable operator would carry both the analog and digital signals at the same time, to the no carriage options, where a cable operator would be under no obligation to carry the station's digital signal until after the transition period has ended.

50. When this proceeding was initiated, there was no satellite broadcast signal carriage requirement, and satellite carriers apparently did not find it necessary to comment on the issues addressed in that proceeding. Thus, we seek comment on whether satellite carriers should be required to carry digital broadcast television signals in addition to analog broadcast signals up until the time that television stations return their analog spectrum to the government. What are the costs and benefits of such a requirement? In what ways would a dual carriage rule limit the number of markets satellite carriers can serve with analog broadcast signals alone? Moreover, would satellite carriers have to drop existing non-broadcast programming to accommodate digital television signals? To what extent should any digital carriage requirements for satellite carriers be consistent with those for cable operations?

51. Section 338(e) states: “A satellite carrier shall accept or request monetary payment or other valuable consideration in exchange either for carriage of local television broadcast stations in fulfillment of the requirements of this section or for channel positioning rights provided to such stations under this section, except that any such station may be required to bear the costs associated with delivering a good quality signal to the local receive facility of the satellite carrier.” We will consider the costs associated with delivering a good quality signal as part of our consideration of the several related local receive facility issues, discussed above. This provision largely parallels provisions applicable to cable operators that are found in sections 614(b)(10) and 615(i) of the Act that are implemented in § 76.60 of the Commission's rules. In the cable context, commercial broadcasters elect either must carry or retransmission consent to obtain carriage of their signals. If mandatory carriage is selected, there are no specific terms for carriage that must be requested, other than choosing the relevant channel positioning options available to broadcasters under the Act. If retransmission consent is selected, the operator may receive compensation from the broadcaster in exchange for carriage. We assume the same general policy is intended here and that a broadcaster seeking carriage rather than requesting carriage “in fulfillment of the requirements of [section 338]” would simply negotiate carriage provisions, including payment terms, in the context of a retransmission consent negotiation. We seek comment on this interpretation. We also seek comment on the policy underlying this provision and its purpose in the statutory scheme.

52. Section 338(a)(2) states that the remedies for any failure to meet the obligations under subsection (a) (carriage obligations) shall be available exclusively under section 501(f) of title 17, United States Code. New section 501(f)(1) states: “With respect to any secondary transmission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmission and is actionable as an act of infringement under section 122, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local market of that station.” New section 501(f)(2) further provides: “A television broadcast station may file a civil action against any satellite carrier that has refused to carry television broadcast signals, as required under section 122(a)(2), to enforce that television broadcast station's rights under section 338(a) of the Communications Act of 1934.” As it appears that the Commission is not the statutory venue to remedy non-carriage of broadcast station signals by satellite carriers, we believe that there is not need for us to implement Section 338(a)(2). We seek comment on this view.

53. Section 338(f)(1) of the Communications Act states: “Whenever a local television broadcast station believes that a satellite carrier has failed to meet its obligations under subsections (b) through (e) of this section [(b) good signal required, (c) duplication not required, (d) channel positioning, and (e) compensation for carriage], such station shall notify the carrier, in writing, of the alleged failure and identify its reasons for believing that the satellite carrier failed to comply with such obligations. The satellite carrier shall, within 30 days after such written notification, respond in writing to such notification and comply with such obligations or sate its reasons for believing that it is in compliance with such obligations. A local television broadcast station that disputes a response by a satellite carrier that it is in compliance with such obligations may obtain review of such denial or response by filing a complaint with the Commission. Such complaint shall allege the manner in which such satellite carrier has failed to meet its obligations and the basis for such allegations.” In addition, section 338(f)(2) states: “The Commission shall afford the satellite carrier against which a complaint is filed under paragraph (1) an opportunity to present data and arguments to establish that there has been no failure to meet its obligations under this section.

54. Section 338(f)(3) of the Communications Act states: “Within 120 days after the date a complain is filed under paragraph (1), the Commission shall determine whether the satellite carrier has met its obligations under subsections (b) through (e). If the Commission determines that the satellite carrier has failed to meet such obligations, the Commission shall order the satellite carrier to make appropriate remedial action. If the Commission determines that the satellite carrier has fully met the requirements of such subsections, the Commission shall dismiss the complaint.” We seek comment on the meaning of the phrase, “appropriate remedial action” for each of the relevant subsections. We also ask whether the payment of forfeitures for non-compliance would fall under the “appropriate remedial action” rubric.

55. These provisions clearly state the remedial procedures for satellite carrier violations of section 338, with subsection 338(a) providing a remedy for failure to carry and subsection 338(f) providing specific remedies for unique carriage violations. We seek comment on two additional issues, however. First, we seek comment on how the section 501(f) remedial limitation in section 338(a)(2) relates to the complaint process set forth in section 338(f). For example, if a satellite carrier refuses to carry a broadcast station signal because of a signal quality dispute, would the broadcaster pursue its remedy in court, at the Commission, or would both fora be available? In addition, it appears that a broadcaster cannot file a complaint against a satellite carrier for non-compliance with the content-to-be-carried or material degradation provisions as the SHVIA specifically referenced those issues in section 338(g) rather than in (b) through (e), as provided in section 338(f). We seek comment on this interpretation. If this is the correct reading of the statute, should the Commission nonetheless include those issues as subject to the complaint process under its general authority to administer the Communications Act?

This proceeding will be treated as a “permit-but-disclose” proceeding subject to the “permit-but disclose” requirements under § 1.1206(b) of the Commission's 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. Additional rules pertaining to oral and written presentations are set forth in § 1.1206(b) of the Commissions rules.

56. Pursuant to applicable procedures set forth in § 1.415 and 1.419 of the Commission's rules, interested parties may file comments regarding this NPRM on or before July 7, 2000 and reply comments on or before July 28, 2000. Comments may be filed using the Commission'e 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.

57. Written comments by the public on the proposed information collections are due July 31, 2000. Written comments must be submitted by the Office of Management and Budget (OMB) on the proposed information collections on or before August 29, 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 Edward C. Springer, OMB Desk Officer, 10236 NEOB, 725—17th Street, NW, Washington, DC 20503 or via the Internet to Edward.Springer@omb.eop.gov.

58. 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 filing 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 Ben Golant at (202) 418-7111, TTY (202) 418-7172, or at bgolant@fcc.gov.

59. Parties who choose to file by paper should also submit their comments on diskette. Parties should submit diskettes to Ben Golant, Cable Services Bureau, 445 12th Street NW, Room 4-A803, 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 “ready 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. 00-96), 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.

60. 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 collections(s) contained in this NPRM, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. OMB notification of action is due August 29, 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: Broadcast Signal Carriage Issues.

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 broadcast signal carriage 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 the NPRM of Proposed Rulemaking (“NPRM”) Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM. The Commission will send a copy on of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.

b. Need for, and Objectives of, the Proposed Rules Sections 38(g) of the Communications Act of 1934, as amended (“Act”), directed the Commission, within one year of enactment of the Satellite Home Viewer Improvement Act of 1999, to “issue regulations implementing this section following a rulemaking proceeding.” The relevant provisions concern the carriage of all local television broadcast station signals by satellite carriers commencing on January 1, 2002.

c. Legal Basis. The authority for the action proposed in this rulemaking is contained in sections 1, 4(i) and (j), 338,614 and 615 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (j), 338, 534, and 535.

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 IFRA 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 will adopt as a result of the NPRM will affect television station licensees and satellite carriers.

e. Television Stations. The proposed rules and policies will apply to television broadcasting licenses, and potential licensees of television service. 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, 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 material are classified under another SIC number.

f. An element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimates that follow of small businesses to which rules may apply to not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. As additional element of the definition of “small business” is that the entity must be independently owned and operated. As discussed further below, we could not fully apply this criterion, and our estimates of small businesses to which rules may apply may be over-exclusive to this extent. The SBA's general size standards are developed taking into account these two statutory criteria. This does not preclude us from taking these factors into account in making our estimates of the numbers of small entities. There were 1,509 television stations operating in the nation in 1992. That number has remained fairly constant as indicated by the approximately 1,616 operating television broadcasting stations in the nation as of September 1999. For 1992, the number of television stations that produced less than $10.0 million in revenue was 1,155 establishments.Thus, the new rules will affect approximately 1,616 television stations; approximately 77% per 1,230 of those stations are considered small business. These estimates may overstate the number of small entities since the revenue figures on which they are based on not include or aggregate revenues from non-television affiliated companies.

g. Small 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 revenue. We address below service individually to provide a more precise estimate of small entities.

h. DBS: There are four licensees 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.

i. 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.

j. According to the most recently available information, there are approximately 30 program packagers 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 packagers may be substantially smaller.

k. Description of Projected Reporting, Recordkeeping and other Compliance Requirements. In order to implement the Satellite Home Viewer Improvement Act of 1999, the Commission has proposed to add new rules. We have yet to determine whether to amend existing provisions of the Commission's rules, or to adopt some other regulatory framework or procedures concerning satellite broadcast signal carriage. There are certain compliance requirements involving the satellite broadcast signal carriage process. Foremost is satellite carriers will have to carry all local television stations in a given market if it decides to carry at least one signal in a market. There will be costs relating to the time and effort involved in carrying all local broadcast signals.

l. In terms of recordkeeping, entities most will likely have to keep a record of their election status and entities may be required to maintain such information within their business environment and may also have to file such information with the Commission.

m. 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.

n. As indicated, the NPRM proposes to implement certain aspects of the Satellite Home Viewer Improvement Act of 1999. Among other things, the new legislation requires satellite carriers to carry all local television broadcast stations in a market, if it carries any local market television stations, by January 1, 2002. This document also discusses implementing regulations relating to the scope and substance of local broadcast signal carriage by satellite carriers. This legislation applies to small entities and large entities equally. At this time, small entities are not treated differently and might not be impacted differently, but we seek comment.

o. Federal Rules Which Duplicate, Overlap, or Conflict with the Commission's Proposals. None.

61. Pursuant to section 1008 of the Satellite Home Viewer Improvement Act of 1999, notice is hereby given of the proposals described in this NPRM.

62. The Consumer Information Bureau, Reference Information Center, shall send a copy of this NPRM, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

The Arkansas River shiner is a small, robust minnow with a small, dorsally flattened head, rounded snout, and small subterminal mouth (located near the head end of the body but not at the extreme end) (Miller and Robison 1973, Robison and Buchanan 1988). Dorsal (back) coloration tends to be light tan, with silvery sides gradually grading to white on the belly. Adults attain a maximum length of 51 millimeters (2 inches). Dorsal, anal, and pelvic fins all have eight rays, and there is a small, black chevron usually present at the base of the caudal fin.

The Arkansas River shiner was first described based on fish collection in 1926 from the Cimarron River northwest of Kenton, Cimarron County, Oklahoma (Hubbs and Ortenburger 1929). Historically, the Arkansas River shiner was widespread and abundant throughout the western portion of the Arkansas River basin in Kansas (KS), New Mexico (NM), Oklahoma (OK), and Texas (TX). This species has disappeared from more than 80 percent of its historical range and is now almost entirely restricted to about 820 kilometers (km) (508 miles (mi)) of the Canadian River in OK, TX, and NM (Larson et al. 1991; Pigg 1991). An extremely small population may still persist in the Cimarron River in OK and KS, based on the collection of only nine individuals since 1985. A remnant population also may persist in the Beaver/North Canadian River of OK, based on collection of only four individuals since 1990 (Larson et al. 1991; Jimmie Pigg, Oklahoma Department of Environmental Quality, pers. comm., 1993).

In 1999, six Arkansas River shiner were collected from the Arkansas River in Wichita, KS, at two locations—four from near the 47th Street South bridge and two near the Kansas State Highway 96 crossing (Vernon Tabor, U.S. Fish and Wildlife Service, Manhattan, KS, pers. comm., 2000). Prior to this collection, the Arkansas River shiner was believed to be extirpated from the Arkansas River. An accurate assessment of Arkansas River shiner populations in the Arkansas, Cimarron, and Beaver/North Canadian rivers is difficult because the populations may be so small that individuals may escape detection during routine surveys. The small size of Arkansas River shiner aggregations in these three rivers significantly reduces the likelihood that these populations will persist over evolutionarily significant timescales in the absence of intensive conservation efforts.

The decline of this species throughout its historical range is primarily the result of modification of the duration and timing of stream flows and inundation by impoundments, channel desiccation by water diversion and groundwater mining, stream channelization, and introduction of non indigenous species. Additional information on the biology and status of this species can be found in the November 23, 1998, final listing determination (63 FR 64772). Biological factors relevant to the species' habitat needs are discussed in the Primary Constituent Elements portion of this proposed rule.

We included the Arkansas River shiner in our September 18, 1985, Review of Vertebrate Wildlife (50 FR 37958) as a category 2 candidate for listing. Category 2 included those taxa for which information indicated that a proposal to list as endangered or threatened was possibly appropriate, but for which conclusive data on biological vulnerability and threats were not currently available to support a proposed rule. Our January 6, 1989, revised Animal Notice of Review (54 FR 554) retained this status for the Arkansas River shiner.

We first received detailed information on the status of the species in 1989 (Pigg 1989). A partial status survey by Larson et al. (1990) was a source of additional information. We subsequently prepared a status report on this species (U.S. Fish and Wildlife Service 1990). Following this report, Larson et al. (1991) and Pigg (1991) provided comprehensive status survey information. In our November 21, 1991, Animal Candidate Review for Listing as Endangered or Threatened Species (56 FR 58804), we reclassified the Arkansas River shiner as a category 1 candidate. At that time, category 1 (now referred to as candidates) included those taxa for which we had substantial information on biological vulnerability and threats to support proposals to list the taxa as endangered or threatened. In our February 28, 1996, candidate Notice of Review (61 FR 7596), we discontinued the designation of category 2 candidates.

We published a proposed rule to list the Arkansas River basin population of the Arkansas River shiner as endangered and invited public comment on August 3, 1994 (59 FR 39532). A nonnative population of the Arkansas River shiner that has become established in the Pecos River was not included in that proposal. We reopened the comment period from January 6, 1995, to February 3, 1995, (60 FR 2070) to accommodate three public hearings. Following lifting of a moratorium on issuing final listings or critical habitat designations on April 26, 1996, we again reopened the comment period on the proposal on December 5, 1997 (62 FR 64337). We published the final rule listing the Arkansas River basin population of the Arkansas River shiner as a threatened species on November 23, 1998 (63 FR 64772).

Critical habitat is defined in section 3(5)(A) of the Act as—(i) the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection and; (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. The term “conservation,” as defined in section 3(3) of the Act, means “to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary” ( i.e., the species is recovered and removed from the list of endangered and threatened species).

Section 4(a)(3) of the Act requires that, to the maximum extent prudent and determinable, we designate critical habitat at the time a species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that critical habitat is not prudent if one or both of the following situations exist—(i) the species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of this threat, or (ii) designation of critical habitat would not be beneficial to the species. In the final rule listing the Arkansas River Basin population of the Arkansas River shiner (63 FR 64772), we found that designation of critical habitat was not prudent because we believed critical habitat would not provide any additional benefit beyond that provided through listing as threatened.

In the last few years, a series of court decisions have overturned several of our determinations made for different species that designation of critical habitat would not be prudent (for example, Natural Resources Defense Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d 1280 (D. Hawaii 1998)). Based on the standards applied in those judicial opinions, we have reexamined the question of whether designation of critical habitat for the Arkansas River Basin population of the Arkansas River shiner is prudent.

As part of a settlement order of February 16, 2000, in Center for Biological Diversity v. Bruce Babbitt, et al. C99-3202 SC, we agreed to reconsider the question of whether critical habitat would be prudent; and, if designation of critical habitat is prudent, we agreed to subsequently propose designation of critical habitat for the Arkansas River Basin population of the Arkansas River shiner by June 23, 2000.

Upon further consideration, we believe designation of critical habitat for the Arkansas River shiner may be of some benefit. A critical habitat designation benefits species conservation primarily by identifying important areas and by describing the features within those areas that are essential to conservation of the species, alerting public and private entities to the areas' importance. Although the designation of critical habitat does not, in and of itself, restrict human activities within an area or mandate any specific management or recovery actions, it does help focus Federal, tribal, State, and private conservation and management efforts in such areas. Designating critical habitat may also provide some educational or informational benefits.

The primary regulatory impact of a critical habitat designation is through the provisions of section 7 of the Act, which applies only to actions with Federal involvement ( e.g., actions authorized, funded, or conducted by a Federal agency) and does not affect exclusively State or private activities. Critical habitat designation assists Federal agencies in planning future actions, because the designation establishes, in advance, those habitats that will be given special consideration in section 7 consultations. With a designation of critical habitat, potential conflicts between Federal actions and endangered or threatened species can be identified and possibly avoided early in the agency's planning process.

Conservation benefits can occur when critical habitat is designated in historically inhabited areas outside the species' current range, particularly where the importance of the area would have been overlooked had critical habitat not been designated. For example, initiation of section 7 consultation may not be required for a Federal action in unoccupied habitat, but would be required if that area had been designated critical habitat. The designation of currently unoccupied areas as critical habitat is allowed under section 3(5)(A)(I) of the Act, which provides that areas outside the geographical area occupied by the species at the time it was listed as endangered or threatened may be designated critical habitat upon a determination that such areas are essential for the conservation ( i.e., recovery) of the species. We find that all areas proposed in this rule are essential for the conservation of the Arkansas River Basin population of the Arkansas River shiner.

Given the above, we believe that designation of critical habitat will likely provide some conservation benefit to the Arkansas River Basin population of the Arkansas River shiner, and can foresee no detrimental conservation effects of designation. We therefore find that critical habitat designation is prudent.

Section 4(b)(2) of the Act requires that we base critical habitat proposals upon the best scientific and commercial data available, taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. We can exclude areas from critical habitat designation if we determine that the benefits of exclusion outweigh the benefits of including the areas as critical habitat, provided the exclusion will not result in the extinction of the species.

In proposing critical habitat for the Arkansas River shiner, we reviewed the overall approach to the conservation of the species undertaken by local, State, tribal, and Federal agencies and private individuals and organizations since the species' listing in 1998. We also solicited information from knowledgeable biologists and reviewed the available information pertaining to habitat requirements of the species. The proposed critical habitat described below constitutes our best assessment of areas essential for the conservation of the Arkansas River shiner and is based on the best scientific and commercial information available. The areas proposed either currently support populations of the Arkansas River shiner, or they currently have, or have the potential for developing, the necessary requirements for survival, growth, and reproduction of the Arkansas River shiner. All of the proposed areas require special management consideration and protection to ensure their contribution to the species' recovery.

Important considerations in selection of areas proposed in this rule include factors specific to each river system, such as size, connectivity, and habitat diversity, as well as range-wide recovery considerations, such as genetic diversity and representation of all major portions of the species' historical range. Each area contains stream reaches with interconnected waters so that individual Arkansas River shiner can move between areas, at least during certain flows or seasons. The ability of the fish to repopulate areas where they have been depleted or extirpated is vital to recovery. Some areas include stream reaches that do not have optimum Arkansas River shiner habitat, but provide migration corridors. Additionally, these reaches play a vital role in the overall health of the aquatic ecosystem and, therefore, the integrity of upstream and downstream Arkansas River shiner habitats. The critical habitat proposed reflects the need for areas of sufficient stream length to provide habitat for Arkansas River shiner populations large enough to be self-sustaining over time, despite fluctuations in local conditions.

In considering this designation, we took into account that preferred habitat for the Arkansas River shiner is the mainstems of larger plains rivers. The best scientific information available indicates that recovery of this species will depend on conservation of relatively long stretches of large rivers. Historically, the species has been documented from several smaller tributaries ( e.g. Skeleton Creek, Wildhorse Creek, and others) to these rivers (Larson et al. 1991). Examination of the collection records provided in Larson et al. (1991) shows that about 53 percent of the reported capture dates for Arkansas River shiner in these smaller tributaries occurred during the months of June and July. Another 18 percent occurred during the months of May and August. Consequently, we believe that these tributaries are occupied only during certain seasons during higher flows and do not represent optimum habitat. We note, however, that all tributaries, no matter their size, are important in contributing flows to the proposed critical habitat reaches and that actions substantially reducing those flows may adversely affect critical habitat. Additionally, newly hatched Arkansas River shiner seek mouths of tributaries where food is more abundant (Moore 1944). This proposed designation (see Lateral Extent of Critical Habitat) would include small sections of the tributaries near their confluence, which are important rearing areas for larval Arkansas River shiner.

Stabilization of the Arkansas River shiner at its present population level and distribution will not achieve conservation. The overall trend in the status of the Arkansas River shiner has been characterized by dramatic declines in numbers and range despite the fact that this species evolved in rapidly fluctuating, harsh environments. None of the threats affecting the Arkansas River shiner have been eliminated since the fish was listed; consequently, known Arkansas River shiner aggregations remain vulnerable to those natural or manmade factors that might further reduce population size. If recovery actions fail to reverse Arkansas River shiner declines in the Canadian/South Canadian River, the species' vulnerability to catastrophic events, such as the introduction of the Red River shiner ( Notropis bairdi ), or a prolonged period of low or no flow, would increase. The remaining self-sustaining aggregations are fragmented and isolated to essentially one river system. Recovery through protection and enhancement of the existing populations, plus reestablishment of populations in suitable areas of historical range, are necessary for the species' survival and recovery.

The inclusion of both occupied and currently unoccupied areas in the proposed critical habitat for Arkansas River shiner is in accordance with the Act. Restoration of Arkansas River shiner populations to additional portions of their historical range significantly reduces the likelihood of extinction due to any natural or manmade factors that might otherwise further reduce population size. We anticipate that a vital recovery component for this species will involve establishment of secure, self-sustaining populations in habitats from which the species has been extirpated. We believe excluding areas outside the currently occupied range of the Arkansas River shiner from the critical habitat designation would be inadequate to ensure the conservation of the species. Therefore, we determine that the unoccupied areas proposed as critical habitat are essential for the conservation of the species.

Table 1 shows approximate river lengths of occupied and unoccupied habitat in each county in which critical habitat is proposed. The proposed designation encompasses approximately 1,866 km (1,160 mi) of stream channels and adjacent areas (see Lateral Extent of Critical Habitat, below). However, the amount of stream channel actually proposed for critical habitat in Oklahoma is less than this amount because these figures were derived from adding county totals, and where the river forms a county boundary, that length is included in both county totals.

The proposed designation is divided among five reaches found within portions of four river systems. The areas we selected for proposed critical habitat designation contain most, if not all, of the remaining genetic diversity within the Arkansas River Basin and include a representation of each major subbasin within the historical range of the species. The proposed designation incorporates more than 95 percent of the currently known aggregations of Arkansas River shiner in the Arkansas River basin, including the remnant populations that may still persist in the Arkansas, Cimarron, and Beaver/North Canadian rivers. The proposed designation also includes currently unoccupied areas in the Arkansas, Cimarron, and Beaver/North Canadian rivers that are considered essential for future restoration and recovery of the species.

For each stream reach proposed for designation, the up- and downstream boundaries are described below. The distances below are approximate due to the meandering and dynamic nature of the proposed river reaches. Uncertainty on upstream and downstream distributional limits of some Arkansas River shiner populations may result in small areas of occupied habitat being excluded from the designation. Similarly, the need to identify sufficient reference points that define the specific limits of the designation also may result in small areas of occupied habitat being excluded from the designation. Finally, as described previously, this critical habitat proposal is focused on mainstem rivers, so some smaller tributaries that may at least seasonally support Arkansas River shiner are not included in this proposal.

In some instances, areas outside of critical habitat that contain one or more of the primary constituent elements may still be important to the conservation of the Arkansas River shiner even if they are not designated as critical habitat. These areas may be of value in maintaining ecosystem integrity and supporting other organisms indirectly contributing to recovery of the species. Additionally, these areas may have those missing elements restored in the future. We have decided that including these areas in the critical habitat designation it is not essential to the conservation of the species. However, we anticipate that these areas can be adequately protected under the Act through section 7 consultation, the section 9 prohibition against taking listed species, and the section 10 habitat conservation planning process, and through other appropriate State and Federal statutes and regulations.

We propose the following areas as critical habitat for the Arkansas River Basin population of the Arkansas River shiner (see the Regulation Promulgation section of this rule for exact descriptions of boundaries).

1. Canadian/South Canadian River, NM, TX, and OK. The Canadian/South Canadian River from near Ute Dam in NM to the upper reaches of Eufaula Reservoir in OK, except for those areas rendered unsuitable for Arkansas River shiner by Meredith Reservoir in TX, is currently occupied by the Arkansas River shiner. These are the largest, perhaps only, remaining viable aggregations of Arkansas River shiner, and are considered to represent the “core” of what remains of the species. Smaller tributary streams, with the exception of Revuelto Creek in NM and small sections of the tributaries near their confluence, which may be seasonally occupied, are believed to be currently unoccupied by the Arkansas River shiner.

a. Canadian River, Quay County, NM, and Oldham and Potter Counties, TX—215 km (134 mi) of river extending from U.S. Highway 54 bridge near Logan, NM, downstream to confluence with Coetas Creek, TX. Seepage from Ute Reservoir, inflow from Revuelto Creek, and several springs help sustain perennial flow in most years. There are occasional periods of no flow, and low flows in the lower section were historically maintained by effluent from the Amarillo, TX, wastewater treatment plant. This segment of the Canadian River, despite flows having been modified by Conchas and Ute reservoirs, still supports a largely intact plains river fish fauna. Arkansas River shiners still occur in portions of the 3.2 km (2 mi) reach between the U.S. Highway 54 bridge and Ute Dam, above the reach proposed for designation. Upstream of Ute Reservoir, the Canadian River was substantially modified following the construction of Conchas Reservoir and likely provides little suitable habitat. A small portion of Arkansas River shiner historical range occurs upstream of Conchas Reservoir, but the suitability of that reach for Arkansas River shiner is unknown. No extant aggregations of Arkansas River shiner are known from that reach.

b. Canadian/South Canadian River, Hemphill County, TX, and Blaine, Caddo, Canadian, Cleveland, Custer, Dewey, Ellis, Grady, Hughes, McClain, McIntosh, Pittsburg, Pontotoc, Pottawatomie, Roger Mills, and Seminole Counties, OK—593 km (368 mi) of river extending from the U.S. Highway 60/83 bridge near Canadian, TX, downstream to the Indian Nation Turnpike bridge northwest of McAlester, OK. This segment of the Canadian/South Canadian River is the longest unfragmented reach in the Arkansas River basin that still supports the Arkansas River shiner. Here, Arkansas River shiner range from rare to common, with the species becoming more abundant in a downstream direction. The Canadian River upstream of the community of Canadian, TX, to Sanford Dam at Lake Meredith, supported Arkansas River shiner prior to the construction of Lake Meredith. However, habitat in this segment is degraded and generally unsuitable. Some aggregations of Arkansas River shiner may still persist upstream of Canadian, TX, in extremely small numbers. Altered flow regimes will continue to affect habitat quality in this reach.

Aggregations of Arkansas River shiner also persist in the 49 km (30 mi) section of the South Canadian River from the Indian Nation Turnpike bridge downstream to the upper limits of Eufaula Reservoir. However, the downstream distributional limit of these populations frequently fluctuates. Management of water surface elevations in Eufaula Reservoir for flood control and the resultant backwater effects routinely alter stream morphology at the downstream extent of the population. Under elevated surface water conditions, the lower reaches of this segment are degraded or may be entirely unsuitable for Arkansas River shiner.

2. Beaver/North Canadian River, Beaver, Ellis, Harper, Major, Texas, and Woodward Counties, OK—259 km (161 mi) of river extending from Optima Dam in Texas County, OK, downstream to U.S. Highway 60/281 bridge in Major County, OK. Almost the entire Beaver/North Canadian River mainstem and at least one of the major tributaries (Deep Fork River) in OK was historically known to support Arkansas River shiner aggregations. A small population may still persist between Optima Dam and the upper reaches of Canton Reservoir, based on the collection of four individuals since 1990. At present, habitat in large areas of the drainage are degraded or unsuitable, either because of reservoirs, reduced stream flow, or water quality impairment. The segment between Optima Dam and the upper reaches of Canton Reservoir offers the best opportunity for restoration of the Arkansas River shiner in the Beaver/North Canadian River. Habitat in this reach appears suitable although detailed studies have not yet been conducted. Recovery activities will include augmenting existing aggregations of the Arkansas River shiner and reestablishing additional populations in this system. Above Optima Reservoir, pumping from the High Plains aquifer has considerably reduced streamflow in the Beaver River (Luckey and Becker 1998), and the habitat is no longer suitable for Arkansas River shiner.

3. Cimarron River, Clark, Comanche, Meade, and Seward Counties, KS, and Beaver, Harper, Woods, and Woodward, Counties, OK—215 km (134 mi) of river extending from U.S. Highway 54 bridge in Seward County, KS, downstream to U.S. Highway 281 bridge in Woods County, OK. Historically, almost the entire Cimarron River mainstem and several of the major tributaries were inhabited by the Arkansas River shiner, including the type locality for the species (the area from which the specimens that were used to first describe the species were taken). A small population of Arkansas River shiner could still persist in the Cimarron River in OK and KS, based on the collection of nine individuals since 1985. Arkansas River shiners were last reported from the Cimarron River in 1990. At present, habitat appears suitable throughout most of the system, but detailed studies have not yet been conducted. Recovery activities for Arkansas River shiner will likely include augmenting existing populations and reestablishing additional aggregations in this system or the Arkansas River in KS. Lack of adequate streamflow in both systems and the presence of Red River shiners in the Cimarron River will hinder recovery efforts. The introduction of the Red River shiner, in combination with habitat loss and degradation, was responsible for the diminished distribution and abundance of the Arkansas River shiner in the Cimarron River. The Red River shiner, a small minnow endemic to the Red River, was first recorded from the Cimarron River in Kansas in 1972 (Cross et al. 1985) and from the Cimarron River in Oklahoma in 1976 (Marshall 1978). Since that time, the non indigenous Red River shiner has essentially replaced the Arkansas River shiner in this system.

4. Arkansas River, Barton, Cowley, Edwards, Finney, Ford, Gray, Hamilton, Kearney, Kiowa, Pawnee, Reno, Rice, Sedgwick, and Sumner Counties, KS—584 km (363 mi) of river extending from Kansas State Highway 27 bridge in Hamilton County, KS, downstream to KS/OK State line in Cowley County, KS. The Arkansas River in Kansas contains a significant portion of the species' historical range and was not known to support Arkansas River shiner until recently. The Arkansas River shiner historically inhabited the entire mainstem of the Arkansas River, but had begun to decline by 1952 due to the construction of John Martin Reservoir 10 years earlier on the Arkansas River in Bent County, Colorado (Cross et al. 1985).

Typically, releases from John Martin Reservoir and irrigation return flows from eastern Colorado maintain streamflow in the Arkansas River as far east as Syracuse, KS (Kansas Geologic Survey 1996). Between Syracuse and Garden City, KS, the river often ceases to flow due to surface and groundwater withdrawals. Surface flow then resumes near Great Bend, KS. At present, insufficient streamflow and water quality degradation renders much of the Arkansas River west of Great Bend unsuitable for Arkansas River shiner. However, in early 1995, the U.S. Supreme Court ruled that Colorado had violated the Arkansas River Compact by depleting usable flows of the Arkansas River in Kansas ( Kansas v Colorado, No. 105, Orig., US Supreme Ct, 1995). If Colorado provides additional water to Kansas, habitat conditions in the Arkansas River west of Great Bend could improve.

Recovery for Arkansas River shiner will include reestablishing additional populations in this system or the Cimarron River. Downstream of the KS/OK State line, large areas of the basin are unsuitable for Arkansas River shiner, either because of reservoirs ( i.e., Kaw and Keystone) and the associated streamflow alterations, or because of stream channel alteration for navigation and are not included in the proposed designation. Even if modifications of releases from these reservoirs become feasible in the future, we suspect that the reaches below Kaw and Keystone reservoirs would never provide suitable habitat. The distance between Kaw Dam and the upper reaches of Keystone Reservoir is only 139 river km (86 river mi), and the distance between Keystone Dam and the McClellan-Kerr Navigation System is only about 130 river km (81 river mi). These distances are likely insufficient to sustain reproducing populations (see “Primary Constituent Elements” below).

The 1998 listing rule for the Arkansas River shiner estimated that at least 3,900 km (2,450 mi) of habitat within the species' range was occupied historically. This proposal involves approximately half that amount. However, the estimate for the listing rule was likely conservative, in that it did not take into account probable occupancy of smaller tributaries in the Arkansas River Basin. Considering the amount of historically occupied habitat that occurred in the smaller tributaries, the amount being considered for critical habitat designation is much less than one-half. Although amount of habitat proposed for designation is less than one-half the historical range of the species, we believe that conservation of the Arkansas River shiner within the proposed areas can secure the long-term survival and recovery of this species.

This proposal takes into account the naturally dynamic nature of riverine systems and recognizes that floodplains are an integral part of the stream ecosystem. Habitat quality within the mainstem river channels in the historical range of the Arkansas River shiner is intrinsically related to the character of the floodplain and the associated tributaries, side channels, and backwater habitats that contribute to the key habitat features ( e.g., substrate, water quality, and water quantity) in these reaches. Among other things, the floodplain provides space for natural flooding patterns and latitude for necessary natural channel adjustments to maintain appropriate channel morphology and geometry. A relatively intact riparian zone, along with periodic flooding in a relatively natural pattern, are important in maintaining the stream conditions necessary for long-term survival and recovery of the Arkansas River shiner.

Human activities that occur outside the river channel can have a demonstrable effect on physical and biological features of aquatic habitats. However, not all of the activities that occur within a floodplain will have an adverse impact on the Arkansas River shiner or its habitat. Thus, in determining the lateral extent of critical habitat along riverine systems, we must consider the definition of critical habitat under the Act. That is, critical habitat must contain the elements essential to a species' conservation and must be in need of special management considerations or protection. We see no need for special management considerations or protection for the entire floodplain, and we are not proposing to designate the whole floodplain as critical habitat. However, conservation of the river channel alone is not sufficient to ensure the survival and recovery of the Arkansas River shiner. We believe the riparian corridors adjacent to the river channel provide a reasonable lateral extent for critical habitat designation.

Riparian areas are seasonally flooded habitats ( i.e., wetlands) that are major contributors to a variety of vital functions within the associated stream channel (Federal Interagency Stream Restoration Working Group 1998, Brinson et al. 1981). They are responsible for energy and nutrient cycling, filtering runoff, absorbing and gradually releasing floodwaters, recharging groundwater, maintaining streamflows, protecting stream banks from erosion, and providing shade and cover for fish and other aquatic species. Healthy riparian corridors help ensure water courses maintain the primary constituent elements essential to stream fishes, including the Arkansas River shiner.

The lateral extent (width) of riparian corridors fluctuates considerably between a stream's headwaters and its mouth. The appropriate width for riparian buffer strips has been the subject of several studies (Castelle et al. 1994). Most Federal and State agencies generally consider a zone 23-46 meters (m) (75.4-150.9 feet (ft)) wide on each side of a stream to be adequate (NRCS 1998, Moring et al. 1993, Lynch et al. 1985), although buffer widths as wide as 152 m (500 ft) have been recommended for achieving flood attenuation benefits (Corps 1999). In most instances, however, riparian buffer zones are primarily intended to reduce detrimental impacts to the stream from sources outside the river channel. Consequently, a buffer width of 23-46 m (75.4-150.9 ft) may be inadequate to preserve the natural processes that provide Arkansas River shiner constituent elements.

Generally, we consider a lateral distance of 91.4 m (300 ft) on each side of the stream beyond the bankfull width to be an appropriate riparian corridor width for the preservation of Arkansas River shiner constituent elements. The bankfull width is the width of the stream or river at bankfull discharge, i.e., the flow at which water begins to leave the channel and move into the floodplain (Rosgen 1996); this activity generally occurs every 1 to 2 years (Leopold et al. 1992). Bankfull discharge, while a function of the size of the stream, is a fairly consistent feature related to the formation, maintenance, and dimensions of the stream channel (Rosgen 1996).

In identifying areas as critical habitat, 50 CFR 424.12 provides that we consider those physical and biological features that are essential to conservation of the species and that may require special management considerations or protection. These physical and biological features, as outlined in 50 CFR 424.12, include, but are not limited to, the following:

Space for individual and population growth, and for normal behavior;

Food, water, or other nutritional or physiological requirements;

Cover or shelter;

Sites for breeding, reproduction, or rearing of offspring; and

Habitats that are protected from disturbance or are representative of the historical geographical and ecological distributions of a species.

The important habitat features that provide for the physiological, behavioral, and ecological requirements of the Arkansas River shiner include adequate spawning flows; habitat for food organisms; appropriate water quality; a natural flow regime; rearing and juvenile habitat appropriate for growth and development to adulthood; and flows sufficient to allow Arkansas River shiner to recolonize upstream habitats. Given the large geographic range the species historically occupied, and the diverse habitats used by the various life-history stages, describing specific values or conditions for each of these habitat features is not always possible . However, the following discussion summarizes the biological requirements of the Arkansas River shiner relevant to identifying the primary constituent elements of its critical habitat.

The Arkansas River shiner historically inhabited the main channels of wide, shallow, sandy-bottomed rivers and larger streams of the Arkansas River basin (Gilbert 1980). Adults are uncommon in quiet pools or backwaters lacking streamflow, and almost never occurred in habitats having deep water and bottoms of mud or stone (Cross 1967). Cross (1967) believed that adults prefer to orient into the current on the “lee” sides of large transverse sand ridges and prey upon food organisms washed downstream in the current.

The Arkansas River shiner is believed to be a generalized forager and feeds upon both items suspended in the water column and items lying on the substrate (Jimenez 1999, Bonner et al. 1997). In the South Canadian River of central OK, Polivka and Matthews (1997) found that gut contents were dominated by sand/sediment and detritus (decaying organic material) with invertebrate prey being an incidental component of the diet. In the Canadian River of NM and TX, the diet of Arkansas River shiner was dominated by detritus, invertebrates, grass seeds, and sand and silt (Jimenez 1999). Invertebrates were the most important food item, followed by detrital material.

Terrestrial and semiaquatic invertebrates were consumed at higher levels than were aquatic invertebrates (Jimenez 1999). With the exception of the winter season, when larval flies were consumed much more frequently than other aquatic invertebrates, no particular invertebrate taxa dominated the diet (Bonner et al. 1997). Fly larvae, copepods, immature mayflies, insect eggs, and seeds were the dominant items in the diet of the nonnative population of the Arkansas River shiner inhabiting the Pecos River in NM (Keith Gido, University of Oklahoma, in litt. 1997).

Most plains streams are highly variable environments. Water temperatures, flow regimes, and overall physicochemical conditions ( e.g. , quantity of dissolved oxygen) typically fluctuate so drastically that fishes native to these systems often exhibit life-history strategies and microhabitat preferences that enable them to cope with these conditions. Matthews (1987) classified several species of fishes, including the Arkansas River shiner, based on their tolerance for adverse conditions and selectivity for physicochemical gradients. The Arkansas River shiner was described as having a high thermal and oxygen tolerance, indicating a high capacity to tolerate elevated temperatures and low dissolved oxygen concentrations (Matthews 1987). Observations from the Canadian River in NM and TX revealed that dissolved oxygen concentrations, conductivity, and pH rarely influenced habitat selection by the Arkansas River shiner (Wilde et al. 2000). Arkansas River shiners were collected over a wide range of conditions—water temperatures from 0.4 to 36.8 °Celsius (32.7 to 98.2 °Fahrenheit), dissolved oxygen from 3.4 to 16.3 parts per million, conductivity from 0.7 to 14.4 millisiemens per centimeter, and pH from 5.6 to 9.0.

In the South Canadian River of central OK, Polivka and Matthews (1997) found that Arkansas River shiner exhibited only a weak relationship between the environmental variables they measured and the occurrence of the species within the stream channel. Water depth, current, dissolved oxygen, and sand ridge and midchannel habitats were the environmental variables most strongly associated with the distribution of Arkansas River shiner within the channel. Similarly, microhabitat selection by Arkansas River shiner in the Canadian River of NM and TX was influenced by water depth, current velocity, and, to a lesser extent, water temperature (Wilde et al. 2000). Arkansas River shiners generally occurred at mean water depths between 17 and 21 centimeters (6.6-8.3 in.) and current velocities between 30 and 42 centimeters (11.7 and 16.4 in.) per second. Juvenile Arkansas River shiner associated most strongly with current, conductivity (total dissolved solids), and backwater and island habitat types (Polivka and Matthews 1997).

Wilde et al. (2000) found no obvious selection for or avoidance of any particular habitat type ( i.e., main channel, side channel, backwaters, and pools) by Arkansas River shiner. Arkansas River shiners did tend to select side channels and backwaters slightly more than expected based on the availability of these habitats (Wilde et al. 2000). Likewise, they appeared to make no obvious selection for or avoidance of any particular substrate type. Substrates in the Canadian River in NM and TX were predominantly sand; however, Arkansas River shiner were observed to occur over silt slightly more than expected based on the availability of this substrate (Wilde et al. 2000).

Successful reproduction by Arkansas River shiner appears to be strongly correlated with streamflow. Moore (1944) believed the Arkansas River shiner spawned in July, usually coinciding with elevated flows following heavy rains associated with summertime thunderstorms. Bestgen et al. (1989) found that spawning in the nonnative population of Arkansas River shiner in the Pecos River of New Mexico generally occurred in conjunction with releases from Sumner Reservoir. However, recent studies by Polivka and Matthews (1997) and Wilde et al. (2000) neither confirmed nor rejected the hypothesis that elevated streamflow triggered spawning in the Arkansas River shiner.

Arkansas River shiners are open-water, broadcast spawners that release their eggs and sperm over an unprepared substrate (Platania and Altenbach 1998, Johnston 1999). Examination of Arkansas River shiner gonadal development between 1996 and 1998 in the Canadian River of NM and TX demonstrated that the species undergoes multiple, asynchronous (not happening at the same time) spawns in a single season (Wilde et al. 2000). The Arkansas River shiner appears to be in peak reproductive condition throughout the months of May, June, and July (Wilde et al. 2000, Polivka and Matthews 1997); however, spawning may occur as early as April and as late as September. Arkansas River shiners may, on occasion, spawn in standing waters (Wilde et al. 2000), but it is unlikely that such events are successful.

Both Moore (1944) and Platania and Altenbach (1998) described egg behavior in the Arkansas River shiner. The fertilized eggs are nonadhesive and semibuoyant. Platania and Altenbach (1998) found that spawned eggs settled to the bottom of the aquaria where they quickly absorbed water and expanded. Upon absorbing water, the eggs became more buoyant, rose with the water current, and remained in suspension. The eggs would sink when water current was not maintained in the aquaria. This led Platania and Altenbach (1998) to conclude that the Arkansas River shiner and other plains fishes likely spawn in the upper to mid-water column during elevated flows. Spawning under these conditions would allow the eggs to remain suspended during the 10- to 30-minute period the eggs were non-buoyant. Once the egg became buoyant, it would remain suspended in the water column as long as current was present.

In the absence of sufficient streamflows, the eggs would likely settle to the channel bottom, where silt and shifting substrates would smother the eggs, hindering oxygen uptake and causing mortality of the embryos. Spawning during elevated flows appears to be an adaptation that likely increases survival of the embryo and facilitates dispersal of the young. Assuming a conservative drift rate of 3 km/hour, Platania and Altenbach (1998) estimated that the fertilized eggs could be transported 72-144 km (45-89 mi) before hatching. Developing larvae would then be transported an additional 216 km (134 mi). Bonner and Wilde (2000) speculate that 218 km (135 mi) may be the minimum length of unimpounded river that allows for the successful completion of the life-history for the Arkansas River shiner, based on their observations in the Canadian River in New Mexico and Texas.

Rapid hatching and development of the young is likely another adaptation in plains fishes that enhances survival in the harsh environments of plains streams. Arkansas River shiner eggs hatch in 24-48 hours after spawning, depending upon water temperature (Moore 1944, Platania and Altenbach 1998). The larvae are capable of swimming within 3-4 days; they then seek out low-velocity habitats, such as backwater pools and quiet water at the mouths of tributaries where food is more abundant (Moore 1944).

Evidence from Wilde et al. (2000) indirectly supports the speculation by Cross et al. (1985) that the Arkansas River shiner initiate an upstream spawning migration. Whether this represents a true spawning migration or just a general tendency in these fish to orient into the current and move upstream, perhaps in search of more favorable environmental conditions, is unknown (Wilde et al. 2000). Regardless, strong evidence suggested the presence of a directed, upstream movement by the Arkansas River shiner over the course of a year.

As previously discussed, introductions of nonindigenous species can have a significant adverse impact on Arkansas River shiner populations under certain conditions. The morphological characteristics, population size, and ecological preferences exhibited by the Red River shiner, a species endemic to the Red River drainage, suggest that it competes with the Arkansas River shiner for food and other essential life requisites (Cross et al. 1983, Felley and Cothran 1981). Since its introduction, the Red River shiner has colonized much of the Cimarron River and frequently may be a dominant component of the fish community (Cross et al. 1983, Felley and Cothran 1981). The intentional or unintentional release of Red River shiners, or other potential competitors, into other reaches of the Arkansas River drainage by anglers or the commercial bait industry is a potentially serious threat that could drastically alter habitat quality in these reaches.

We determined the primary constituent elements for Arkansas River shiner from studies on their habitat requirements and population biology, as outlined above. These primary constituent elements are the following:

1. A natural, unregulated hydrologic regime complete with episodes of flood and drought or, if flows are modified or regulated, a hydrologic regime characterized by the duration, magnitude, and frequency of flow events capable of forming and maintaining channel and instream habitat necessary for particular Arkansas River shiner life-stages in appropriate seasons;

2. A complex, braided channel with pool, riffle (shallow area in a streambed causing ripples), run, and backwater components that provide a suitable variety of depths and current velocities in appropriate seasons;

3. A suitable unimpounded stretch of flowing water of sufficient length to allow hatching and development of the larvae;

4. Substrates of predominantly sand, with some patches of silt, gravel, and cobble;

5. Water quality characterized by low concentrations of contaminants and natural, daily and seasonally variable temperature, turbidity, conductivity, dissolved oxygen, and pH;

6. Abundant terrestrial, semiaquatic, and aquatic invertebrate food base; and

7. Few or no predatory or competitive nonnative species present.

The areas we are proposing for designation as critical habitat for Arkansas River shiner provide the above primary constituent elements or will be capable, with restoration, of providing them. All of the proposed areas require special management considerations or protection to ensure their contribution to the species' recovery.

The vast majority (about 98 percent) of proposed critical habitat is in private ownership, with relatively small, scattered tracts of State, and Federal lands. Private lands are primarily used for grazing and agriculture, but also include towns, small-lot residences, and industrial areas. A general description of land ownership in each complex follows:

1a. Canadian River—This reach is predominantly in private ownership. The State of New Mexico owns scattered tracts. The reach in Texas is in private ownership, except for a small segment that is owned by the National Park Service as part of the Lake Meredith National Recreation Area.

1b. Canadian/South Canadian River—This reach is predominantly in private ownership, with limited areas of State and tribal ownership. The Texas Parks and Wildlife Department owns a small segment downstream of the town of Canadian, TX (Gene Howe Wildlife Management Area (WMA)). The Oklahoma Department of Wildlife Conservation owns a small section near Roll, OK (Packsaddle WMA). Small tracts of tribal lands are near Oklahoma City.

2. Beaver/North Canadian River—The ownership is predominantly private, with limited areas of State-owned lands. The Oklahoma Department of Wildlife Conservation owns small sections near Beaver, OK (Beaver River WMA) and near Fort Supply, OK (Cooper WMA). The Oklahoma Department of Parks and Tourism owns a small section near Woodward, OK (Boiling Springs State Park).

3. Cimarron River—Land here is entirely in private ownership.

4. Arkansas River—This area is entirely in private ownership except for a small area near the Kansas/Oklahoma State line owned by the U.S. Army Corps of Engineers (Kaw Wildlife Area). This area is managed by the State of Kansas (Kansas Department of Wildlife and Parks).

Section 7(a) of the Act requires Federal agencies to ensure that actions they fund, authorize, or carry out do not destroy or adversely modify critical habitat to the extent that the action appreciably diminishes the value of the critical habitat for the survival and recovery of the species. Individuals, organizations, States, local and tribal governments, and other non-Federal entities are affected by the designation of critical habitat only if their actions occur on Federal lands, require a Federal permit, license, or other authorization, or involve Federal funding. Thus, activities on Federal lands that may affect the Arkansas River shiner or its critical habitat, if designated, will require section 7 consultation. Actions on private or State lands receiving funding or requiring a permit from a Federal agency also will be subject to the section 7 consultation process if the action may affect critical habitat. Federal actions not affecting the species or its critical habitat, as well as actions on non-Federal lands that are not federally funded or permitted, will not require section 7 consultation.

Federal agencies are required to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its proposed or designated critical habitat. Regulations implementing these interagency cooperation provisions of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act and regulations at 50 CFR 402.10 require Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or to result in destruction or adverse modification of proposed critical habitat. A section 7 conference on proposed critical habitat results in a report that may provide conservation recommendations to assist the action agency in eliminating or minimizing adverse effects to the proposed critical habitat that may be caused by the proposed agency action. The conservation recommendations in a conference report are advisory. We may issue a formal conference report, if requested by a Federal agency. Formal conference reports on proposed critical habitat contain a conference opinion as to whether the proposed action is likely to destroy or adversely modify proposed critical habitat. This biological opinion is prepared as if critical habitat were designated as final, in accordance with 50 CFR 402.13.

If we subsequently finalize the proposed critical habitat designation, then section 7(a)(2) will require Federal agencies to enter into consultation with us on agency actions that may affect critical habitat. Consultations on agency actions that will likely adversely affect critical habitat will result in issuance of a biological opinion. We may adopt a formal conference report as the biological opinion if no significant new information or changes in the action alter the content of the opinion (see 50 CFR 402.10(d)).

If we find a proposed agency action is likely to destroy or adversely modify the critical habitat, our biological opinion may include reasonable and prudent alternatives to the action that are designed to avoid destruction or adverse modification of critical habitat. Reasonable and prudent alternatives are defined at 50 CFR 402.02 as alternative actions that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that we believe would avoid destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative vary accordingly.

Regulations at 50 CFR 402.16 also require Federal agencies to reinitiate consultation in instances where we have already reviewed an action for its effects on a listed species if critical habitat is subsequently designated and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation if their actions may affect designated critical habitat, or conferencing with us on actions likely to destroy or adversely modify proposed critical habitat.

Section 4(b)(8) of the Act requires us to describe in any proposed or final regulation that designates critical habitat, a description and evaluation of those activities involving a Federal action that may adversely modify such habitat or that may be affected by such designation. A wide range of Federal activities have the potential to destroy or adversely modify critical habitat for the Arkansas River shiner. These activities may include land and water management actions of Federal agencies ( e.g. , U.S. Army Corps of Engineers, Natural Resources Conservation Service, Bureau of Reclamation, and the Bureau of Indian Affairs) and related or similar actions of other federally regulated projects ( e.g. , road and bridge construction activities by the Federal Highway Administration; dredge and fill projects, sand and gravel mining, and bank stabilization activities conducted or authorized by the U.S. Army Corps of Engineers; and, National Pollutant Discharge Elimination System permits authorized by the Environmental Protection Agency). Specifically, activities that may destroy or adversely modify critical habitat are those that alter the primary constituent elements (defined above) to an extent that the value of critical habitat for both the survival and recovery of the Arkansas River shiner is appreciably reduced. Such activities include, but are not limited to:

(1) Significantly and detrimentally altering the minimum flow or the natural flow regime of any of the designated stream segments. Possible actions would include groundwater pumping, impoundment, water diversion, and hydropower generation. We note that such flow reductions that result from actions affecting tributaries of the proposed stream reaches may also destroy or adversely modify critical habitat.

(2) Significantly and detrimentally altering the characteristics of the riparian zone in any of the designated stream segments. Possible actions would include vegetation manipulation, timber harvest, road construction and maintenance, prescribed fire, livestock grazing, off-road vehicle use, powerline or pipeline construction and repair, mining, and urban and suburban development.

(3) Significantly and detrimentally altering the channel morphology of any of the stream segments listed above. Possible actions would include channelization, impoundment, road and bridge construction, deprivation of substrate source, destruction and alteration of riparian vegetation, reduction of available floodplain, removal of gravel or floodplain terrace materials, reduction in stream flow, and excessive sedimentation from mining, livestock grazing, road construction, timber harvest, off-road vehicle use, and other watershed and floodplain disturbances.

(4) Significantly and detrimentally altering the water chemistry in any of the designated stream segments. Possible actions would include release of chemical or biological pollutants into the surface water or connected groundwater at a point source or by dispersed release (non-point).

(5) Introducing, spreading, or augmenting nonnative aquatic species in any of the designated stream segments. Possible actions would include fish stocking for sport, aesthetics, biological control, or other purposes; use of live bait fish; aquaculture; construction and operation of canals; and interbasin water transfers.

Not all of the identified activities are necessarily of current concern within the Arkansas River basin; however, they do indicate the potential types of activities that will require consultation in the future and, therefore, that may be affected by critical habitat designation. We do not expect that designation of critical habitat in areas occupied by the Arkansas River shiner will result in a regulatory burden above that already in place, due to the presence of the listed species. However, areas designated as critical habitat that are not currently occupied by the species may require protections similar to those provided to occupied areas under past consultations.

As discussed previously, Federal actions that are found likely to destroy or adversely modify critical habitat may often be modified, through development of reasonable and prudent alternatives, in ways that will remove the likelihood of destruction or adverse modification of critical habitat. Such project modifications may include such things as adjustment in timing of projects to avoid sensitive periods for the species and its habitat; replanting of riparian vegetation; minimization of work and vehicle use in the wetted channel; restriction of riparian and upland vegetation clearing; fencing to exclude livestock and limit recreational use; use of alternative livestock management techniques; avoidance of pollution; minimization of ground disturbance in the floodplain; use of alternative material sources; storage of equipment and staging of operations outside the floodplain; use of sediment barriers; access restrictions; and use of best management practices to minimize erosion.

If you have questions regarding whether specific activities will likely constitute destruction or adverse modification of critical habitat, contact the Field Supervisor, Oklahoma Ecological Services Office (see ADDRESSES section). Requests for copies of the regulations on listed wildlife and inquiries about prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Division of Endangered Species, P.O. Box 1306, Albuquerque, New Mexico 87103 (telephone 505-248-6920; facsimile 505-248-6788).

We are in the process of developing a recovery plan for the Arkansas River Basin population of the Arkansas River shiner. The recovery plan, when finalized, will provide recommendations on recovering this species, including recommendations on management of its critical habitat. Further, should the recovery plan recommend adding or deleting areas as critical habitat, we will consider whether a future revision of critical habitat is appropriate.

Section 4(b)(2) of the Act requires that we designate critical habitat on the basis of the best scientific and commercial information available and that we consider the economic and other relevant impacts of designating a particular area as critical habitat. The economic impacts to be considered in a critical habitat designation are the incremental effects of the designation over and above the economic impacts attributable to listing of the species. In general, these incremental impacts are more likely to result from management activities in areas outside the present distribution of the listed species.

We may exclude areas from critical habitat upon a determination that the benefits of such exclusions outweigh the benefits of specifying those areas as critical habitat; however, we cannot exclude areas from critical habitat when the exclusion will result in the extinction of the species. A draft economic analysis will be available for public review and comment (see ADDRESSES section). We will utilize the economic analysis, and take into consideration all comments and information submitted during the public hearing and comment period, to determine whether areas should be excluded from the final critical habitat designation.

In accordance with the Presidential Memorandum of April 29, 1994, we believe that, to the maximum extent possible, tribes should be the governmental entities to manage their lands and tribal trust resources. To this end, we support tribal measures that preclude the need for conservation regulations, and we provide technical assistance to Indian tribes who wish assistance in developing and expanding tribal programs for the management of healthy ecosystems so that Federal conservation regulations, such as designation of critical habitat, on tribal lands are unnecessary.

The Presidential Memorandum of April 29, 1994, also requires us to consult with the tribes on matters that affect them, and section 4(b)(2) of the Act requires us to gather information regarding the designation of critical habitat and the effects thereof from all relevant sources, including the tribes. Recognizing a government-to-government relationship with tribes and our Federal trust responsibility, we consulted to the extent possible with the Indian tribes having tribal trust resources, tribally owned fee lands, or tribal rights that might be affected by the designation of critical habitat.

In our deliberations over this critical habitat proposal, we identified two categories of possible effects to tribes or tribal resources. These include: (1) Effects resulting from designation of critical habitat on Tribal lands; and (2) effects on tribal resources, such as water deliveries, resulting from designation of critical habitat on nontribal lands. We identified tribal lands belonging to the Choctaw and Chickasaw Nations as containing stream reaches that may be appropriate for designation of critical habitat. Additionally, several tribes may have lands located downstream from proposed critical habitat.

We met with representatives of the Cherokee, Chickasaw, Creek, and Seminole Nations on April 6, 2000, to discuss the proposed designation. The Chickasaw and Choctaw Nations are the two tribes that have habitat for Arkansas River shiner on their lands. Given our obligations under the Presidential Memorandum, we are not proposing critical habitat on Tribal land. However, as provided under section 4(b)(2) of the Act, we are soliciting information during the comment period as to whether these areas should be designated as critical habitat and will be continuing our discussions with the tribes to determine whether voluntary measures implemented by the tribes are adequate to achieve conservation of the Arkansas River shiner on tribal lands. We will consider this information in determining which, if any, tribal land should be included in the final designation as critical habitat for the Arkansas River shiner.

We do not anticipate that proposal of critical habitat on nontribal lands will result in any impact on tribal trust resources or the exercise of tribal rights. However, as stated above, some tribes may have lands located downstream from proposed critical habitat for the Arkansas River shiner.

In complying with our tribal trust responsibilities, we must communicate with all tribes potentially affected by the designation. Therefore, we are soliciting information during the comment period on potential effects to tribes or tribal resources that may result from critical habitat designation.

We intend for any final action resulting from this proposal to be as accurate and as effective as possible. Therefore, we are soliciting comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning:

(1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefits of excluding areas will outweigh the benefits of including areas as critical habitat;

(2) Specific information on the abundance of Arkansas River shiner and the amount and distribution of its habitat;

(3) Areas that are essential to the conservation of the species and that may require special management considerations or protection and why;

(4) Land use practices and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;

(5) Any foreseeable economic or other impacts resulting from the proposed designation of critical habitat, in particular, any impacts on small entities or families; and

(6) Economic and other values associated with designating critical habitat for the Arkansas River shiner, such as those derived from nonconsumptive uses ( e.g. , hiking, camping, birding, enhanced watershed protection, increased soil retention, “existence values,” and reductions in administrative costs).

Executive Order 12866 requires each agency to write regulations and notices that are easy to understand. We invite your comments on how to make this proposed rule easier to understand including answers to questions such as the following—(1) Are the requirements in the document clearly stated? (2) Does the proposed rule contain technical language or jargon that interferes with the clarity? (3) Does the format of the proposed rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the description of the proposed rule in the Supplementary Information section of the preamble helpful in understanding the document? (5) What else could we do to make the proposed rule easier to understand?

Our practice is to make comments that we receive on this rulemaking, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. In some circumstances, we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish for us to withhold your name and/or address, you must state this request prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, including the individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

In accordance with our policy published on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of such review is to ensure listing decisions are based on scientifically sound data, assumptions, and analyses. We will send copies of this proposed rule immediately following publication in the Federal Register to these peer reviewers. We will invite these peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions regarding the proposed designation of critical habitat.

We will consider all comments and information received during the comment period on this proposed rule during preparation of a final rulemaking. Accordingly, the final decision may differ from this proposal.

The Act provides for one or more public hearings on this proposal, if requested. Given the large geographic extent covered by this proposal, the high likelihood of multiple requests, and the need to publish a final determination by March 14, 2001, we have scheduled three public hearings (see DATES and ADDRESSES sections).

Written comments submitted during the comment period receive equal consideration with those comments presented at a public hearing.

In accordance with the criteria in Executive Order 12866, this rule is a significant regulatory action and has been reviewed by the Office of Management and Budget (OMB). We will prepare a draft economic analysis of this proposed action to determine the economic consequences of designating the specific areas as critical habitat. The draft economic analysis will be available for public review and comment.

(a) This rule will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A cost-benefit analysis is not required for purposes of Executive Order 12866. The Arkansas River shiner was listed as a threatened species in 1998. Currently, we have not conducted any formal section 7 consultation with other Federal agencies to ensure that their actions would not jeopardize the continued existence of the Arkansas River shiner.

Under the Act, critical habitat may not be adversely modified by a Federal agency action; critical habitat does not impose any restrictions on non-Federal persons unless they are conducting activities funded or otherwise sponsored or permitted by a Federal agency (see Table 2 below). Section 7 requires Federal agencies to ensure that they do not jeopardize the continued existence of the species. Based upon our experience with the species and its needs, we conclude that any Federal action or authorized action that could potentially cause an adverse modification of the proposed critical habitat would currently be considered as “jeopardy” to the species under the Act. Accordingly, the designation of currently occupied areas as critical habitat does not have any incremental impacts on what actions may or may not be conducted by Federal agencies or non-Federal persons that receive Federal authorization or funding. Non-Federal persons who do not have a Federal “sponsorship” of their actions are not restricted by the designation of critical habitat (however, they continue to be bound by the provisions of the Act concerning “take” of the species).

Designation of unoccupied areas as critical habitat may have impacts on what actions may or may not be conducted by Federal agencies or non-Federal persons that receive Federal authorization or funding. We will evaluate this impact through our economic analysis (under section 4 of the Act; see Economic Analysis section of this rule).

(b) This rule will not create inconsistencies with other agencies' actions. Federal agencies have been required to ensure that their actions do not jeopardize the continued existence of the Arkansas River shiner since its listing in 1998. The prohibition against adverse modification of critical habitat is not expected to impose any additional restrictions to those that currently exist in occupied areas of proposed critical habitat. Additional restrictions may be imposed in unoccupied areas proposed as critical habitat; we will evaluate this possibility through our economic analysis under section 4 of the Act. Because of the potential for impacts on other Federal agency activities, we will continue to review this proposed action for any inconsistencies with other Federal agency actions.

(c) The proposed rule, if made final, will not significantly impact entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. Federal agencies are currently required to ensure that their activities do not jeopardize the continued existence of the species, and, as discussed above, we do not anticipate that the adverse modification prohibition (resulting from critical habitat designation) will have any incremental effects in areas of occupied habitat. However, we will review the effects of this proposed action on Federal agencies or non-Federal persons that receive Federal authorization or funding in unoccupied critical habitat areas.

(d) This rule will not raise novel legal or policy issues. The proposed rule follows the requirements for determining critical habitat contained in the Endangered Species Act.

In the draft economic analysis, we will determine if designation of critical habitat will have a significant effect on a substantial number of small entities. As discussed under Regulatory Planning and Review above, this rule is not expected to result in any restrictions in addition to those currently in existence for areas of occupied critical habitat. However, for areas of unoccupied habitat, we will review the effects of this proposed action on small entities.

In our draft economic analysis, we will determine whether designation of critical habitat will cause: (a) Any effect on the economy of $100 million or more, (b) any increases in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions, or (c) any significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. As discussed above, we anticipate that the designation of critical habitat will not have any additional effects on these activities in areas of critical habitat occupied by the species. However, we will review the effects of this proposed action as there may be additional effects in areas of unoccupied habitat.

In accordance with the Unfunded Mandates Reform Act:

a. This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. Small governments will be affected only to the extent that any programs involving Federal funds, permits, or other authorized activities must ensure that their actions will not destroy or adversely modify critical habitat. However, as discussed above, these actions are currently subject to equivalent restrictions through the listing protections of the species, and no further restrictions are anticipated in areas of occupied proposed critical habitat. However, we will review the effects of this proposed action as there may be additional effects in areas of unoccupied habitat.

b. This rule will not produce a Federal mandate on State, local or tribal governments or the private sector of more than $100 million or greater in any year, i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments.

In accordance with Executive Order 12630, this rule does not have significant takings implications, and a takings implication assessment is not required. This proposed rule, if made final, will not “take” private property. The designation of critical habitat affects only Federal agency actions. The rule will not increase or decrease the current restrictions on private property concerning take of the Arkansas River shiner. Additionally, critical habitat designation does not preclude development of habitat conservation plans and issuance of incidental take permits. Landowners in areas that are included in the designated critical habitat will continue to have opportunity to utilize their property in ways consistent with the survival of the Arkansas River shiner.

In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. The designation of critical habitat in areas currently occupied by the Arkansas River basin population of the Arkansas River shiner imposes no additional restrictions to those currently in place, and therefore has little incremental impact on State and local governments and their activities.

In keeping with Department of the Interior policy, we requested information from and coordinated development of this critical habitat designation with appropriate State resource agencies in Kansas, New Mexico, Oklahoma, and Texas. We also utilized information on critical habitat submitted by the States during the listing of the Arkansas River shiner. We anticipate that the affected States will have representatives on our recovery team for this species. Consequently, we will continue to coordinate this and any future designation of critical habitat for the Arkansas River shiner with the appropriate State agencies.

In accordance with Executive Order 12988, the Department of the Interior's Office of the Solicitor determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. The Office of the Solicitor will review the final determination for this proposal. We will make every effort to ensure that the final determination contains no drafting errors, provides clear standards, simplifies procedures, reduces burden, and is clearly written such that litigation risk is minimized.

This rule does not contain any information collection requirements for which OMB approval under the Paperwork Reduction Act is required.

Our position is that, outside the Tenth Circuit, we do not need to prepare environmental analyses as defined by the NEPA in connection with designating critical habitat under the Endangered Species Act of 1973, as amended. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This assertion was upheld in the courts of the Ninth Circuit ( Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996). However, when the range of the species includes States within the Tenth Circuit (the States of CO, KS, NE, NM, OK, UT, and WY) , such as that of the Arkansas River shiner, pursuant to the Tenth Circuit ruling in Catron County Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we undertake a NEPA analysis for critical habitat designation. Send your requests for copies of the draft environmental assessment for this proposal to the Oklahoma Ecological Services Office or visit our web site (see ADDRESSES section).

A complete list of all references cited in this proposed rule is available upon request from the Oklahoma Ecological Services Office (see ADDRESSES section).

The primary author of this notice is Ken Collins (see ADDRESSES section).

Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations as set forth below:

The Caribbean Fishery Management Council will hold a series of public hearings in Puerto Rico and the U.S. Virgin Islands to obtain input from fishers and the general public on the following draft Amendment 1 alternative management measures (corresponding draft Amendment 1 sections are referenced):

Alternative 1 (section 5.1 -Preferred Alternative): Prohibit the harvest and possession of queen conch in the exclusive economic zone (EEZ);

Alternative 2 (section 5.2): Prohibit the harvest and possession of queen conch by recreational fishers in the EEZ;

Alternative 3 (section 5.3): Prohibit the harvest of queen conch in the EEZ by all fishers using SCUBA gear;

Alternative 4 (section 5.4): Prohibit the harvest of queen conch in the EEZ by recreational fishers using SCUBA;

Alternative 5 (section 5.5): Establish a permit for queen conch for fishers and dealers.

Alternative 6 (section 5.6): Establish a limited entry system for queen conch fishers;

Alternative 7 (section 5.7): Establish a trip limit for commercial fishers of 100 pounds (45.4 kg) of queen conch meat per vessel per trip, and not more than 300 pounds (136.1 kg) per week for each vessel;

Alternative 8 (section 5.8): Establish a trip limit of 150 queen conch per commercial fisher per trip;

Alternative 9 (section 5.9): Change the dates for the annual closed harvest season for queen conch from July 1- September 30 to July 1-October 31 of each consecutive year;

Alternative 10 (section 5.10): Change the dates for the annual closed harvest season for queen conch from July 1-September 30 to June 1-September 30 of each consecutive year;

Alternative 11 (section 5.11): Change the current annual closed harvest season for queen conch from the 3-month period of July 1-September 30 to a 4-month period (could be two separate sub-periods) other than those under Alternatives 9 and 10; and

Alternative 12 (section 5.12): No management action taken.

Time and Location for Public Hearings

Public hearings for the draft Amendment 1 will be held at the following dates, times, and locations:

1. Monday, July 10, 2000—Travelodge Hotel, Isla Verde Avenue, Isla Verde, Puerto Rico, from 7 p.m. to 10 p.m.;

2. Tuesday, July 11, 2000—Asociacion de Pescadores la Villa del Ojo, Bo. Borinquen, Sector Crash Boat, Aguadilla, Puerto Rico, from 7 p.m. to 10 p.m.;

3. Wednesday, July 12, 2000—Villa Parguera Hotel, Carr. 304, Km. 3.3, La Parguera, Lajas, Puerto Rico, from 7 p.m. to 10 p.m.;

4. Thursday, July 13, 2000—Reserva Estuarina Bahia de Jobos, Carr. 705, Km. 2.3, Main Street, Aguirre, Puerto Rico, from 2 p.m. to 5 p.m.;

5. Tuesday, July 18, 2000—Holiday Inn, Veterans Drive, Charlotte Amalie, St. Thomas, U.S.V.I., from 7 p.m. to 10 p.m.; 6. Wednesday, July 19, 2000—Legislature Building, Hilltop building, Cruz Bay, St. John, U.S.V.I., from 7 p.m. to 10 p.m.;

7. Thursday, July 20, 2000—Caravelle Hotel, 44A Queen Cross St., St. Croix, U.S.V.I., from 7 p.m. to 10 p.m.;

8. Wednesday, July 26, 2000—Maries Restaurant, Rd. #3, Km. 70.3, Punta Santiago, Humacao, Puerto Rico, from 7 p.m. to 10 p.m.;

These meetings are physically accessible to people with disabilities. For more information or request for sign language interpretation and other auxiliary aids, please contact Mr. Miguel A. Rolon, Executive Director, Caribbean Fishery Management Council, 268 Munoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico, 00918-2577, telephone (787) 766-5926, at least 5 days prior to the meeting date.