Section 209 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Act, 1989, Public Law 100-459, section 209(a), 102 Stat. 2186, 2203 (October 1, 1988), 8 U.S.C. 1356(m), authorizes DHS to prescribe and collect fees to recover the cost of providing certain immigration and naturalization benefits. That law also authorized the establishment of the IEFA in the Treasury of the United States. All revenue from fees collected for immigration and naturalization benefits are deposited in the IEFA and remain available to provide immigration and naturalization benefits and to provide for the collection, safeguarding, and accounting for fees. 8 U.S.C. 1356(n).

DHS also employs the authority granted by the Independent Offices Appropriation Act, 1952 (IOAA), 31 U.S.C. 9701, commonly referred to as the “User Fee Statute,” to develop its fees. The IOAA directs federal agencies to identify services provided to unique segments of the population and to charge fees for those services, rather than supporting such services through general tax revenues. The IOAA states that “[i]t is the sense of Congress that each service or thing of value provided by an agency * * * to a person * * * is to be self-sustaining to the extent possible.” 31 U.S.C. 9701(a).

The IOAA further provides that charges for such services or things of value should be fair and based on “(A) the costs to the Government; (B) the value of the service or thing to the recipient; (C) public policy or interest served; and (D) other relevant facts.” 31 U.S.C. 9701(b).

DHS must also conform to the requirements of the Chief Financial Officers Act of 1990 (CFO Act), Public Law 101-576, 104 Stat. 2838 (1990). Section 205(a) of the CFO Act, amending 31 U.S.C. 902, requires each agency's Chief Financial Officer to “review, on a biennial basis, the fees, royalties, rents, and other charges imposed by the agency for services and things of value it provides, and make recommendations on revising those charges to reflect costs incurred by it in providing those services and things of value.” Public Law 101-576, 104 Stat. 2838 (1990) at 2844, 31 U.S.C. 902(a)(8).

When developing fees for special benefits, DHS adheres to the principles contained in OMB Circular No. A-25, Revised, User Charges (1993). OMB Circular No. A-25 states at Section 6, that as a general policy a “user charge * * * will be assessed against each identifiable recipient for special benefits derived from Federal activities beyond those received by the general public.”

The guidance contained in OMB Circular No. A-25 is applicable to the extent that it is not inconsistent with any federal statute. For example, specific legislative authority to charge fees for special benefits takes precedence over OMB Circular No. A-25. Specifically, section 4(b) provides “where a statute prohibits the assessment of a user charge on a service or addresses an aspect of the user charge ( e.g. , who pays the charge; how much is the charge; where collections are deposited), the statute shall take precedence over the Circular.” When a statute does not address issues of how to calculate fees or what costs to include in the fee calculation, federal agencies must follow the principles and guidance contained in OMB Circular No. A-25 to the fullest extent allowable. The guidance directs federal agencies to charge the “full cost” of providing benefits when calculating fees that provide a special benefit to recipients. Section 6(d) of OMB Circular No. A-25 defines “full cost” as including “all direct and indirect costs to any part of the Federal Government of providing a good, resource, or service.” These costs include, but are not limited to, an appropriate share of:

(a) Direct and indirect personnel costs, including salaries and fringe benefits such as medical insurance and retirement;

(b) Physical overhead, consulting, and other indirect costs, including material and supply costs, utilities, insurance, travel, and rents or imputed rents on land, buildings, and equipment;

(c) Management and supervisory costs; and

(d) The costs of enforcement, collection, research, establishment of standards, and regulation.

Finally, section 6(d)(1)(e) states that “[f]ull cost shall be determined or estimated from the best available records of the agency, and new cost accounting systems need not be established solely for this purpose.”

When developing fees for services, DHS also adheres to the cost accounting concepts and standards recommended by the Federal Accounting Standards Advisory Board (FASAB). The FASAB was established in 1990, and its purpose is to recommend accounting standards for the Federal Government. The FASAB defines “full cost” to include “direct and indirect costs that contribute to the output, regardless of funding sources.” Federal Accounting Standards Advisory Board, Statement of Financial Accounting Standards No. 4: Managerial Cost Accounting Concepts and Standards for the Federal Government 36 (July 31, 1995). To obtain full cost, FASAB identifies various classifications of costs to be included, and recommends various methods of cost assignment, as will be discussed later. Id. at 36-42.

Fees collected from immigration benefit applications are used to fund the full costs of processing immigration benefit applications. Fees deposited into the IEFA have been the primary source of funding for the processing of immigration benefit applications, and generally have replaced the annual appropriation that was received for such services.

Since 1989, the fees for the vast majority of immigration benefit applications have increased more than threefold based on an improved cost accounting methodology as well as a general rise in resource requirements commensurate with the mission to provide immigration information and benefits for USCIS customers in a timely, accurate, consistent, courteous, and professional manner.

However, the current appeal and motion fees of $110 have neither been reviewed nor adjusted since 1989. In addition, recent performance data indicates that the processing time for an appeal or motion did not meet the President's 5-year goal of processing immigration benefit applications in 6 months or less due, in large part, to staffing shortfalls.

A review to adjust appeal and motion fees was not conducted in the past given the low workload volume. However, recent data indicates a significant and steady increase of 12% in appeal and motion filings from 1993 to 2002. Thus, USCIS deemed it was reasonable and necessary to perform a fee review of the appeal and motion process to ensure full compliance with applicable federal law and user fee guidance by recovering the full costs of appeal and motion filings.

When a petition or application is denied or revoked by USCIS, in most cases the applicant or petitioner may appeal that decision to a higher authority. The AAO has appellate jurisdiction over 66 types of petitions and applications. If an applicant or petitioner receives an appealable denial notice, the denial notice will advise the applicant or petitioner of his or her right to appeal to the AAO or BIA, whichever is appropriate; provide the applicant or petitioner with the appropriate appeal form; and include instructions on any applicable time limit for filing an appeal.

There are strict deadlines that must be met to file an appeal properly. In addition, only the person that submitted the original application or petition may file the appeal. For example, if a U.S. employer petitions for an alien employee, only the U.S. employer may appeal the denial. If the AAO has jurisdiction over the decision, the notice of appeal must be filed on Form I-290B, Notice of Appeal to the Administrative Appeals Unit (AAU). The appeal, as well as the accompanying fee, must be filed with the office that made the original decision to deny the application or petition. The applicant or petitioner may file a brief written explanation in support of an appeal. After review, the AAO may agree with the applicant or petitioner and change the original decision, disagree with the applicant or petitioner and affirm the original decision, or send the matter back to the originating office for further action. Only one appeal may be filed for each denial or revocation; there is no further administrative appellate review of an AAO decision.

In addition to the right to appeal (in which the applicant or petitioner asks a higher authority to review a denial), the applicant or petitioner may file a motion to reopen the case or a motion to reconsider the denial with the office that made the unfavorable decision, such as the field office or AAO. By filing these motions, the applicant or petitioner may ask the office to reexamine or reconsider its decision. A motion to reopen must state the new facts that are to be provided in the reopened proceeding and must be accompanied by affidavits or other documentary evidence per 8 CFR 103.5(a)(2). Under 8 CFR 103.5(a), a motion to reconsider must establish that the decision was based on an incorrect application of law or USCIS policy, and further establish that the decision was incorrect based on the evidence of record at the time the initial decision was issued. Any motion to reopen or reconsider must be filed with the correct fee within 30 days of the decision.

Form I-290B is used to appeal decisions issued by adjudication officers located at DHS service centers and district offices. Appeals and motions require approximately the same amount of effort, on average, according to discussions with AAO management. The core work of writing and editing performed at the AAO is very labor intensive, given the three full days it requires to process an average appeal/motion case.

In Fiscal Year 2003, KPMG Consulting was hired to provide an independent fee review as well as to ensure adherence to applicable federal law and fee guidance. The fee review identified the full costs of processing appeals and motions and the estimated completion volumes over the Fiscal Year 2003/2004 biennial time period. The full cost determination included the labor-intensive activities involved in application logistics, legal research, decision writing, and decision review. The full cost determination also included the staffing necessary to meet the President's 5-year goal of processing immigration benefit applications in 6 months or less.

The unit cost of $382.98 was determined by dividing the full costs of processing appeal/motion cases associated with the FY 2003/2004 biennial time period ($13,021,582) by the FY 2003/2004 completion volumes (34,000). The time required to process an average appeal versus an average motion case is essentially the same. Therefore, their respective unit costs are equal.

The table below identifies the unit cost of $382.98 and the proposed fee of $385.

This rule also clarifies that the fee amount of $385 also applies when an appeal is filed by, or on behalf of, two or more aliens and the two aliens are covered by one decision. In so doing, it corrects a transcription error in the Code of Federal Regulations in 1989 that failed to amend the fee amount from $50 to $110 for two or more aliens when the aliens are covered by one decision when the base fee (for one alien) was raised from $50 to $110, as provided in the final rule dated April 4, 1989 (54 FR 13513). The failure resulted in an unintended discrepancy between the base fee, and the fee for two or more aliens when the aliens are covered by one decision. Notwithstanding this transcription error, affected aliens have been properly charged, and the Service as well as USCIS have collected the correct fee since the 1989 amendment. The form instructions also reflected the proper fee amount. This rule corrects the discrepancy in 8 CFR 103.7(b)(1) and brings this fee as properly amended ($50 to $110) from $110 to $385 so that both fees are now equal as intended.

Finally, this proposed rule also makes a conforming change to 8 CFR 103.5(a)(1)(iii) to replace an obsolete reference to a withdrawn form, Form I-290A, with a reference to Form I-290B.

Yes, USCIS has the authority to waive fees on a case-by-case basis pursuant to 8 CFR 103.7(c).

DHS has reviewed this regulation in accordance with 5 U.S.C. 605(b), and by approving it, DHS has determined that this rule will not have a significant economic impact on a substantial number of small entities since a majority of motions and appeals are submitted by individuals and not small entities as that term is defined in 5 U.S.C. 601(6).

DHS acknowledges, however, that some small entities, particularly those filing appeals of and/or motions to review denials of business-related applications and petitions, such as the Form I-140, Immigration Petition for Alien Worker, Form I-526, Immigrant Petition for Alien Entrepreneur, and Form I-829, Petition for Entrepreneur to Remove Conditions, may be affected by this rule. USCIS does not collect data on the size of the businesses filing appeals and/or motions related to employment based petitions, and therefore does not know the precise number of small businesses that may be affected by this rule (as the majority of petitions are filed by individuals). USCIS projects the following number of denials for business-related petitions for the Fiscal Year 2003/2004 biennial period:

Form I-140, Immigrant Petition for Alien Worker (35,866 denials);

Form I-526, Immigrant Petition by Alien Entrepreneur (217 denials);

Form I-829, Petition by Entrepreneur to Remove Conditions (174 denials).

Although this volume represents the total number of denials, it does not represent the total number of motions/appeals filed on these petitions which would be far less given that the number of motions/appeals filed by individuals and businesses totaled only 34,000 in the Fiscal Year 2003/2004 biennial period. However, even if all of the motions/appeals were filed by small businesses, the resulting degree of economic impact would not require a Regulatory Flexibility Analysis to be performed.

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 804 of the Small Business Regulatory Enforcement Act of 1996. 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 DHS to be “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 (OMB) for review. DHS has assessed both the costs and benefits of this rule as required by section 1(b)(6) of Executive Order 12866 and has made a determination that, although increasing the fee to $385 will increase the cost to the individual applicant and/or petitioner, USCIS must establish and collect fees to recover the full cost of processing immigration benefit applications, rather than supporting these services with tax revenue. There are no identifiable alternatives associated with this fee increase. The implementation of this rule also will provide USCIS with an additional $6.7 million in FY 2005 over the fee revenue that would be collected under the current fee structure. If USCIS does not adjust the current fees to recover the full costs of processing immigration benefit applications, the backlog will likely increase. The revenue increase is based on USCIS costs and projected volumes that were available at the time of this rule.

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. Therefore, in accordance with section 6 of Executive Order 13132, DHS has 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.

Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163 (1995), all Departments are required to submit to OMB, for review and approval, any reporting or recordkeeping requirements inherent in a rule. This rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act. This rule proposes that the fees for motions and appeals be increased. Since an increase of these fees will increase the cost burden on the public, DHS will submit the required Paperwork Reduction Change Worksheet (OMB-83C) to the Office of Management and Budget (OMB) reflecting the new fees and cost burdens on the public. It should also be noted that changes to the fees require changes to the application form (Form I-290B) to reflect the new fees. USCIS will submit a notification to OMB with respect to any such changes.

Accordingly, part 103 of chapter I of title 8 of the Code of Federal Regulations is proposed to be amended as follows:

This proposed rule would affect those petitioners and applicants who submit applications/petitions for immigration benefits and receive requests for evidence (RFEs) or notices of intent to deny (NOIDs) from the Department.

An RFE, described in current regulations at 8 CFR 103.2(b)(8), is a request, issued by an adjudicating immigration officer, for the applicant or petitioner to provide initial or additional evidence in support of an application or petition. RFEs usually are in writing and request missing documentary evidence. The documentary evidence requested may consist of basic documents that were specified in the application/petition forms and/or instructions but which were not submitted by the applicant or petitioner. The RFE may also be a request for original documents or proper translations, or for other documents not specifically identified in the form's instructions but determined by the adjudicator to be relevant to the adjudication of the application/petition.

A notice of intent to deny (NOID) is a written notice issued to an applicant or petitioner when USCIS has made a preliminary decision to deny the application or petition. NOIDs may be based on evidence of ineligibility and/or on derogatory information of which the applicant or petitioner is unaware.

Under 8 CFR 103.2(b)(8), USCIS is required to issue an RFE when initial evidence is missing. Initial evidence is evidence specified in the regulations and on the application or petition and accompanying instructions. USCIS, in its discretion, may also issue an RFE for additional evidence. In either case, if USCIS issues an RFE, USCIS must provide a standard response period of 12 weeks.

There are various provisions throughout 8 CFR that authorize or require USCIS to issue a NOID to an applicant or petitioner before rendering a final decision on the case. NOIDs are designed to provide the applicant or petitioner with an opportunity to inspect and rebut the evidence in a certain period of time, usually 30 days from the date of notice.

USCIS recognizes that while RFEs are sometimes necessary, RFE issuance slows the adjudication process. Some RFEs are simple enough to require resubmission within a few weeks; others may require more time. USCIS proposes to replace the current 12-week response period reflected in 8 CFR 103.2(b)(8) with a more flexible approach, setting response periods based on various factors such as the type of benefit sought; the type of application or petition filed; the type of evidence needed for adjudication; the source and availability of documentation (both foreign and domestic); the effect of denial of an application or petition on the applicant, petitioner and/or beneficiary ( e.g. , loss of long-held priority dates, loss of valid status or interim benefits); the delivery mechanisms to be used for an RFE or NOID; and other case-specific factors. USCIS also proposes to remove most provisions that require issuance of an RFE or NOID in order to allow USCIS greater flexibility in deciding cases based on the information received, including initial evidence and other relevant materials. Generally, USCIS anticipates that the response times for most RFEs or NOIDs that are set by USCIS under this proposed rule will not be less than 30 days. In addition, USCIS will issue RFEs or NOIDs as written notices, clearly stating what evidence or information is required, to give the applicant or petitioner adequate notice and sufficient information to respond to any request.

The goal for redesigning the RFE and NOID issuance process is to allow USCIS flexibility in determining whether to issue RFEs and NOIDs and in setting RFE and NOID response periods, mainly through implementing field guidance that will address specific circumstances encountered by USCIS. Clearly approvable cases should be promptly approved, without the need for an RFE. Clearly ineligible cases should be denied without an RFE or NOID, even if required initial evidence has not been submitted. USCIS also retains its discretion to issue an RFE, NOID or deny a case when initial evidence is missing or there is insufficient evidence to establish eligibility. The current rule at 8 CFR 103.2(b)(16)(i) requiring opportunity to rebut derogatory information of which the applicant or petitioner is unaware will remain.

USCIS welcomes comments on all aspects of this rule, and specifically requests proposals on appropriate standards for RFE or NOID issuance as well as for determining appropriate periods for RFE and NOID responses. USCIS also welcomes suggestions on actual timeframes that should be adopted based on either the application or petition being filed or the documentary evidence generally required for a particular benefit category. Based on the comments received and USCIS' own experience in case adjudication, USCIS will develop timeframes and standards for RFE and NOID issuance.

This rule clarifies 8 CFR 103.2(b)(5) to reflect that official documents issued by the Department (or the former Immigration and Naturalization Service) need not be submitted in the original unless required by USCIS. Original documents submitted to USCIS (or the former Immigration and Naturalization Service) will be returned upon request, but USCIS is not precluded from making subsequent requests to reexamine original documents.

This rule expands and restructures current 8 CFR 103.2(b)(8) to reflect more accurately the process of responding to an RFE. This change is intended to facilitate a respondent's ability to understand and address a request for evidence.

This rule amends 8 CFR 103.2(b)(8) by removing the mandatory requirement that USCIS issue an RFE for initial evidence. Instead, USCIS, in its discretion, may deny a petition or application when required initial evidence is missing. If an applicant or petitioner fails to submit the required initial evidence, and USCIS decides to deny the application or petition rather than issue an RFE, the applicant or petitioner may file a motion to reopen, with fee, as provided under 8 CFR 103.5 or file a new application or petition. The applicant or petitioner may also file an appeal of the denial if other regulatory or statutory authority exists for such appeal.

This rule also preserves USCIS' discretion to issue an RFE or NOID if USCIS determines that the record raises questions of eligibility. If USCIS issues an RFE or NOID for additional evidence and a response is received, USCIS will adjudicate the application based on the required initial evidence and the requested information submitted in response to the RFE or NOID. If the applicant or petitioner does not respond to the RFE or NOID, USCIS will treat the failure to respond as a statement by the applicant or petitioner that he or she believes the record as it stands establishes eligibility. Upon passing of the deadline for submission of the requested evidence, USCIS will adjudicate the application and/or petition based on the record then existing before USCIS ( e.g. , the application or petition and the required initial evidence).

Finally, this rule divides current 8 CFR 103.2(b)(17) into two separate paragraphs for improved ease of use and to clarify which official records will be accepted to establish lawful admission for permanent residence.

In addition to the proposed changes regarding RFE requests, USCIS is making numerous technical changes to 8 CFR 103.2 necessary to reflect the recent organizational changes resulting from implementation of the Homeland Security Act of 2002, Public Law 107-296.

Fee waiver requests may be granted when it has been established that the individual is unable to pay the required filing fees, including filing fees for motions to reopen. See 8 CFR 103.7(c). To apply for a fee waiver, an individual must comply with the provisions of 8 CFR 103.7(c). The individual may submit an affidavit, or unsworn declaration made pursuant to 28 U.S.C. 1746, that is signed, dated, and certified under penalty of perjury, and which states the reasons why the individual is unable to pay the filing fee. USCIS will take note of any evidence or documentation that is submitted in support of the individual's claim that he or she is unable to pay the filing fee. For more detailed information on the fee waiver request process please visit the USCIS Web site at http://www.uscis.gov .

DHS has reviewed this rule in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), and, by approving it, DHS certifies that this rule will not have a significant economic impact on a substantial number of small entities. Although some petitions may be submitted by small entities, namely U.S. employers seeking nonimmigrant or immigrant labor, this rule is intended to be more flexible in setting time limits for RFEs or NOIDs, thereby reducing the timeframe for adjudicating these petitions without imposing costs. USCIS recognizes that this change may have a small impact on small business practices or productivity due to the change in timeframes for responses to RFEs or NOIDS. However, USCIS believes these changes ultimately will benefit affected small businesses, namely because the reduction in adjudication timeframes will allow U.S. employers to receive the benefit sought at an earlier date ( i.e. , the ability to hire temporary or permanent foreign employees). USCIS intends to set response times for RFEs or NOIDs generally at not less than 30 days. USCIS welcomes suggestions on actual timeframes that should be adopted based on either the application or petition being filed or the documentary evidence generally required for a particular benefit category. Based on the comments received and USCIS' own experience in case adjudication, USCIS will develop timeframes and standards for RFE and NOID issuance.

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 will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. 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 Homeland Security 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.

The Department has assessed both the costs and the benefits associated with this proposed rule. There are no identifiable alternatives associated with RFE or NOID issuance. In addition, there are minimal costs to the Department associated with instructing adjudicators about the options for dealing with inadequate information. There are benefits to both USCIS and the public. USCIS will reduce the number of RFEs and NOIDs and the cycle time for responses to such notices, potentially reducing the pending backlog of cases. The public will receive fewer and more specific RFE or NOID notices and benefit from faster approval of applications and petitions. USCIS welcomes comments specifically on the impact on U.S. employers who file employment-related applications or petitions and on any potential costs that may be associated with implementation of this rule.

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. Therefore, in accordance with section 6 of Executive Order 13132, DHS has 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.

Under the Paperwork Reduction Act of 1995, Public Law 104-13, all departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any reporting or recordkeeping requirements inherent in a rule. This rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act.

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

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2004-19577/Airspace Docket No. 04-ACE-67.” The postcard will be date/time stamped and returned to the commenter.

An electronic copy of this document may be downloaded through the Internet at http://dms.dot.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov or the Superintendent of Document's Web page at http://www.access.gop.gov/nara.

Additionally, any person may obtain a copy of this notice by submitting a request to the Federal Aviation Administration, Office of Air Traffic Airspace Management, ATA-400, 800 Independence Avenue, SW., Washington 20591, or by calling (202) 267-8783. Communications must identify both docket numbers for this notice. Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

This notice proposes to amend Part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish Class E airspace designated as a surface area for an airport at Independence, KS. Controlled airspace extending upward from the surface of the earth is needed to contain aircraft executing instrument approach procedures to Independence Municipal Airport. Weather observations would be provided by an Automatic Weather Observing/Reporting system (AWOS) and communications would be direct with Kansas City Air Route Traffic Control Center.

This notice also proposes to revise the Class E airspace area extending upward from 700 feet above the surface at Independence, KS. An examination of this Class E airspace area revealed it does not comply with airspace requirements for diverse departments from Independence Municipal Airport as set forth in FAA Order 7400.2E, Procedures for Handling Airspace Matters. The examination also revealed discrepancies in the Independence Municipal Airport airport reference point. This proposal would correct these anomalies. The areas would be depicted on appropriate aeronautical charts.

Class E airspace areas designated as surface areas are published in Paragraph 6002 of FAA Order 7400.9M, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in Paragraph 6005 of the same Order. The Class E airspace designations listed in this document would be published subsequently in the Order.

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

This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority since it would contain aircraft executing instrument approach procedures to Independence Municipal Airport and correct discrepancies in the airport reference point.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2004-19578/Airspace Docket No. 04-ACE-68.” The postcard will be date/time stamped and returned to the commenter.

An electronic copy of this document may be downloaded through the Internet at http://dms.dot.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov or the Superintendent of Document's Web page at http://www.access.gpo.gov/nara.

Additionally, any person may obtain a copy of this notice by submitting a request to the Federal Aviation Administration, Office of Air Traffic Airspace Management, ATA-400, 800 Lawrence Avenue, SW., Washington, DC 20591, or by calling (202) 267-8783. Communications must identify both docket numbers for this notice. Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

This notice proposes to amend Part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish Class E airspace designated as a surface area for an airport at Lawrence, KS. Controlled airspace extending upward from the surface of the earth is needed to contain aircraft executing instrument approach procedures to Lawrence Municipal Airport. Weather observations would be provided by an Automated Surface Observing System (ASOS) and communications would be direct with Kansas City Air Route Traffic Control Center. The area would be depicted on appropriate aeronautical charts.

Class E airspace areas designated as surface areas are published in Paragraph 6002 of FAA Order 7400.9M, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.

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

This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority since it would contain aircraft executing instrument approach procedures to Lawrence Municipal Airport.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The subject of the public hearing is the notice of proposed regulations (REG-128767-04) that was published in the Federal Register on August, 12, 2004 (69 FR 49832).

The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who have submitted written or electronic comments and wish to present oral comments at the hearing must submit an outline of the topics to be discussed and the amount of time to be devoted to each topic (signed original and eight (8) copies) by December 24, 2004.

A period of 10 minutes is allotted to each person for presenting oral comments. After the deadline for receiving outlines has passed, the IRS will prepare an agenda containing the schedule of speakers. Copies of the agenda will be made available, free of charge, at the hearing. Because of access restrictions, the IRS will not admit visitors beyond the immediate entrance area more than 30 minutes before the hearing starts.

For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this document.

Section 105(e) of the Federal Alcohol Administration Act (the FAA Act, 27 U.S.C. 201 et seq. ) requires that alcohol beverage labels provide the consumer with adequate information regarding a product's identity and prohibits the use of misleading information on such labels. The FAA Act also authorizes the Secretary of the Treasury to issue regulations to carry out its provisions. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers these regulations.

Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) contains the list of approved viticultural areas.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region distinguishable by geographical features, the boundaries of which have been recognized and defined in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographic origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.3(b) of the TTB regulations requires the petition to include—

• Evidence that the proposed viticultural area is locally and/or nationally known by the name specified in the petition;

• Historical or current evidence that supports setting the boundary of the proposed viticultural area as the petition specifies;

• Evidence relating to the geographical features, such as climate, soils, elevation, and physical features, that distinguish the proposed viticultural area from surrounding areas;

• A description of the specific boundary of the proposed viticultural area, based on features found on United States Geological Survey (USGS) maps; and

• A copy of the appropriate USGS map(s) with the proposed viticultural area's boundary prominently marked.

The Texoma Appellation Committee, Denison, Texas, has petitioned TTB to establish the “Texoma” viticultural area in north-central Texas. Located along the Texas-Oklahoma State line on the southern side of Lake Texoma and the Red River, the proposed area covers 3,650 square miles, or about 2.3 million acres, in Montague, Cooke, Grayson, and Fannin Counties. According to the petitioners, the area contains four wineries and a number of small vineyards with approximately 55 acres planted to vines. The petitioners state that both Vitis vinifera and native Texas grape varieties thrive in Texoma.

The name “Texoma” originates with Lake Texoma, a large Army Corps of Engineers lake on the Texas-Oklahoma State line. According to the petitioners, people have referred to the proposed area as “Texoma” for over 60 years, roughly since the completion of Lake Texoma in 1938.

The petition included numerous examples of the use of the name “Texoma” by businesses and governments serving the four-county (Montague, Cooke, Grayson, and Fannin) area. Examples include: the Texoma Regional Health Care system, the Texoma Association of Realtors, the Texoma Council of Governments, the Texoma Women's and Children's Center, Texoma Workforce Commission, Texoma Center for Family Medicine, Texoma Christian Middle School, and the Texoma Council for the Deaf.

The petitioners state that an Internet search for the word “Texoma” returned 6,407 pages of references. None refers to a location outside the four-county area.

The petitioners note that several counties in southern Oklahoma are usually included in the Texoma region. However, the petitioners state that Oklahoma State winery fees have prevented the establishment of a successful wine district on the northern side of the State line.

The petitioners state that the proposed Texoma viticultural area's boundaries encompass the sloping pastureland in this portion of the Red River drainage basin. While the Red River and Lake Texoma form the proposed area's northern boundary, the ridge between the Red River drainage basin and the Trinity River drainage basin form its southern boundary. The Montague County line forms most of the western boundary, while the Fannin County line forms most of the eastern boundary.

The petitioners assert that the proposed area's boundaries correspond to those of the Texoma region of Texas. The petitioners further state that Texoma has unique growing conditions—soils, topography, and climate—that are advantageous for grape growing.

As historical evidence for the proposed boundaries, the petitioners cite Texoma's contributions to world viticultural history. Renowned 19th-century viticulturalist Thomas Volney (T.V.) Munson chose Texoma as the site for his experimental vineyards. An expert on native American grape varieties, he was particularly excited by Texoma's varieties of native grapes, calling the area his “grape paradise.” He developed over 300 new grape varieties from the wild grapes growing along the bluffs of the Red River and its tributaries. When phylloxera threatened to destroy French vineyards, Munson shipped thousands of phylloxera-resistant Texas rootstocks to France and had them grafted with European vinifera varieties. In 1888, the French government awarded Munson the French Legion of Honor for his role in saving their wine industry.

Today, the T.V. Munson Memorial Vineyard at Grayson County College in Denison, Texas, carries on Munson's legacy. The vineyard grows 65 of the 300 grape varieties developed by Munson, and the college, unlike most junior colleges in the nation, bestows associate degrees in viticulture.

Because of the importance of native grape species to the viticultural history and identity of the Texoma region, the petitioners based their southern boundary in part on the distribution of wild grapevines through the area. Because wild grapevines generally do not grow on the south-facing slopes beyond the ridge dividing the Red River and Trinity River drainage basins, the petitioners excluded certain southern portions of the four counties from the proposed Texoma area.

The petitioners state that Texoma soils differ from the soils in surrounding areas. Texoma contains sandy, loamy soils that provide good drainage for vineyards. Surrounding areas contain black-land soils, which do not provide good drainage for vineyards. The petitioners note that some areas south and southwest of the proposed viticultural area also have sandy, loamy soils, but that these soils lie outside the boundaries of the Texoma area. The petitioners state that, unlike the soils of surrounding areas, Texoma's soils, because of their sandiness, contain practically no phylloxera.

The petitioners submitted a detailed soil report on the Texoma area prepared by a committee of soil scientists: Maurice Jurena and Jerry Rives of the U.S. Department of Agriculture's Natural Resources Conservation Service, Dr. George McEachern of Texas A&M University, and Dr. Charles E. Pehl, a private consultant. The report lists 36 soil series suitable for viticulture in the proposed area. Maps show these soil series throughout the Texoma area. According to the authors, these soils have the characteristics needed for productive vineyards—good internal drainage, adequate soil depth, and good water-holding capacity. Based on available soil surveys of the area, the authors state that approximately one-third of the proposed area, an estimated 690,000 acres (1,078 sq. miles), should be suitable for productive viticulture. The report describes three soils of particular interest:

As additional soil evidence, the petitioners submitted soil survey maps published by the Natural Resources Conservation Service, U.S. Department of Agriculture, for each of the four counties in the proposed area. These maps consistently describe the various soils of Texoma, including those detailed in the petitioner's soil report, as either “loamy and sandy” or “loamy and clayey.”

The petitioners state that much of Texoma's land slopes downward and northward toward the Red River. The elevation ranges from a low of 597 feet above sea level in northeast Fannin County to a high of 1,271 feet on ridges in southeast Montague County. Evening breezes drain the intense heat of the day off Texoma's bluffs and rolling hillsides, cooling the vineyards. Numerous small creeks flow northward to Lake Texoma and the Red River throughout Texoma. Several varieties of wild grapes grow in these creek beds, just as they did in the days of T.V. Munson.

According to the petitioners, Texoma's north-facing slopes (3 percent to 12 percent slope) diminish the power of the summer sun and thus provide excellent vineyard sites. The petitioners state that recent research indicates that, in June, 15-degree north-facing slopes can reduce the sunlight index from 107 to 86. (The sunlight index is a scale measuring the amount of solar radiation received by plants.) This results in significantly less heat stress on the vines. In September, the effect is even greater, with the sunlight index reduced from 122 to 70. The petitioners contrast this with land south of Texoma in the Dallas-Fort Worth area. There the land slopes south, resulting in a much higher sunlight index and greater heat stress on grape vines.

The petitioners note that, in addition to Lake Texoma, the Texoma area has numerous lakes and ponds. These bodies of water provide a large reserve for irrigating the area's vineyards. The petitioners also believe that sunlight reflecting off these bodies of water helps to ripen grapes. They note that a similar effect occurs in New York's Finger Lakes region and in Germany's Mosel and Rhine River valleys. Gentle breezes off Lake Texoma provide advection warming to the surrounding hillsides during cool autumn nights.

According to the petitioners, Texoma's climate is favorable for grape growing, while the climate of surrounding areas is not. Texoma's temperatures for November through February generally are 5.3 to 6.7 degrees cooler than those in areas to the south and southeast, such as the Dallas-Fort Worth area (which averages 33.6° F) and Greenville, Texas (which averages 34.9° F). Texoma's winter temperatures in the mid- and upper-20s are cold enough to kill the insect that causes Pierce's disease, while causing no damage to vineyards. The petitioners state that vineyards in the Dallas-Fort Worth area have, in contrast, suffered extensive damage from Pierce's disease.

Areas north and west of Texoma, such as Oklahoma and northwestern Texas, have winter temperatures that are 4 to 6 degrees colder than Texoma's. These temperatures increase the risk of damage to vines. Freeze and thaw cycles in these areas can split vine trunks, while the milder winter temperatures of Texoma prevent such damage.

The petitioners assert that Texoma's precipitation is also favorable for grape growing. While its vineyards rely to some extent on irrigation, Texoma receives an annual rainfall of 30 to 40 inches, which is close to sufficient. As one heads west from Texoma, the climate is increasingly drier. Wichita Falls, Texas, for example, receives only 28 inches of rain a year, an amount that cannot sustain vineyards. Few sources of water for irrigation, such as Lake Texoma, exist west of Texoma. Areas east of Texoma receive much heavier rainfall, as much as 51 inches annually in Texarkana. Such heavy rainfall often results in standing water, which can cause root rot and kill vines.

See the narrative boundary description of the petitioned-for viticultural area in the proposed regulatory text published at the end of this notice.

The petitioner provided the required maps, and we list them below in the proposed regulatory text.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. If we establish this proposed viticultural area, its name, “Texoma,” will be recognized as a name of viticultural significance. Consequently, wine bottlers using “Texoma” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the viticultural area's name as an appellation of origin. The proposed part 9 regulatory text set forth in this document specifies the “Texoma” name as a term of viticultural significance for purposes of part 4 of the TTB regulations.

For a wine to be eligible to use as an appellation of origin the name of a viticultural area specified in part 9 of the TTB regulations, at least 85 percent of the grapes used to make the wine must have been grown within the area represented by that name. If the wine is not eligible to use the viticultural area name as an appellation of origin and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Accordingly, if a new label or a previously approved label uses the name “Texoma” for a wine that does not meet the 85 percent standard, the new label will not be approved, and the previously approved label will be subject to revocation, upon the effective date of the approval of the Texoma viticultural area.

Different rules apply if a wine has a brand name containing a viticultural area name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

We invite comments from interested members of the public on whether we should establish the proposed viticultural area. We are also interested in receiving comments on the sufficiency and accuracy of the name, climactic, boundary, and other required information submitted in support of the petition. Please provide any available specific information in support of your comments. In addition, TTB is interested in comments concerning the exclusion of those counties in Oklahoma that are considered to be within the Texoma region from the petitioned viticultural area. This includes information on any wine grape growing in those Oklahoma counties.

Because of the potential impact of the establishment of the proposed Texoma viticultural area on brand labels that include the words “Texoma” as discussed above under Impact on Current Wine Labels, we are particularly interested in comments regarding whether there will be a conflict between the proposed area name and currently used brand names. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any negative economic impact that approval of the proposed viticultural area will have on an existing viticultural enterprise. We are also interested in receiving suggestions for ways to avoid any conflicts, for example by adopting a modified or different name for the viticultural area.

All comments and submitted materials are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider confidential or inappropriate for public disclosure.

Please submit your comments by the closing date shown above in this notice. All comments must include this notice number and your name and mailing address. Your comments must be legible and written in language acceptable for public disclosure. We do not acknowledge receipt of comments, and we regard all comments as originals.

You may submit comments in any of five ways:

• Mail: You may send written comments to TTB at the address listed in the ADDRESSES section.

• Facsimile: You may submit comments by facsimile transmission to 202-927-8525. Faxed comments must—

(1) Be on 8.5- by 11-inch paper;

(2) Contain a legible, written signature; and

(3) Be no more than five pages long. This limitation assures electronic access to our equipment. We will not accept faxed comments that exceed five pages.

• E-mail: You may e-mail comments to nprm@ttb.gov . Comments transmitted by electronic mail must—

(1) Contain your e-mail address;

(2) Reference this notice number on the subject line; and

(3) Be legible when printed on 8.5- by 11-inch paper.

• Online form: We provide a comment form with the online copy of this notice on our Web site at http://www.ttb.gov/alcohol/rules/index.htm . Select the “Send comments via e-mail” link under this notice number.

• Federal e-Rulemaking Portal: To submit comments to us via the Federal e-rulemaking portal, visit http://www.regulations.gov and follow the instructions for submitting comments.

You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine, in light of all circumstances, whether to hold a public hearing.

You may view copies of this notice, the petition, the appropriate maps, and any comments we receive by appointment at the TTB Library at 1310 G Street, NW., Washington, DC 20220. You may also obtain copies at 20 cents per 8.5 x 11-inch page. Contact our librarian at the above address or telephone 202-927-2400 to schedule an appointment or to request copies of comments.

For your convenience, we will post this notice and any comments we receive on the TTB Web site. We may omit voluminous attachments or material that we consider unsuitable for posting. In all cases, the full comment will be available in the TTB Library. To access the online copy of this notice, visit http://www.ttb.gov/alcohol/rules/index.htm . Select the “View Comments” link under this notice number to view the posted comments.

We certify that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

This proposed rule is not a significant regulatory action as defined by Executive Order 12866, 58 FR 51735. Therefore, it requires no regulatory assessment.

Jennifer Berry of the Regulations and Procedures Division drafted this notice.

For the reasons discussed in the preamble, we propose to amend 27 CFR, chapter I, part 9, Code of Federal Regulations, as follows:

Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [CGD07-04-108], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the Bridge Branch, Seventh Coast Guard District, at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

The Miami Marathon Director requested that the Coast Guard temporarily change the existing regulations governing the operation of the east and west spans of the Venetian Causeway bridges, the Brickell Avenue bridge and the Miami Avenue bridge to allow them to remain in the closed position during the running of the Miami Tropical Marathon on Sunday, January 30, 2005. The closure times range from 6:05 a.m. through 12:05 p.m. The marathon route will pass over these four bridges and any bridge opening would disrupt the race. Based on the limited amount of time the bridges would be closed, the proposed rule would still provide for the reasonable needs of navigation on the day of the event.

The east and west spans of the Venetian Causeway bridges are located between Miami and Miami Beach. The current regulation governing the operation of the east span of the Venetian Causeway bridge is published in 33 CFR 117.269 and requires the bridge to open on signal; except that, from November 1 through April 30 from 7:15 a.m. to 8:45 a.m. and from 4:45 p.m. to 6:15 p.m. Monday through Friday, the draw need not open. However, the draw opens at 7:45 a.m., 8:15 a.m., 5:15 p.m., and 5:45 p.m., if any vessels are waiting to pass. The draw opens on signal on Thanksgiving Day, Christmas Day, New Year's Day and Washington's Birthday. The draw opens at anytime for public vessels of the United States, tugs with tows, regularly scheduled cruise vessels, and vessels in distress. The regulation governing the west span of the Venetian Causeway bridge is published in 33 CFR 117.261 and requires the bridge to open on signal; except that, from November 1 through April 30, Monday through Friday except Federal holidays, from 7 a.m. to 9 a.m. and 4:30 p.m. to 6:30 p.m., the draw need open only on the hour and the half-hour.

The regulation governing the Miami Avenue bridge, mile 0.3, at Miami, is published at 33 CFR 117.305(c) and requires that the bridge open on signal; except that, from 7:35 a.m. to 8:59 a.m., 12:05 p.m. to 12:59 p.m. and 4:35 p.m. to 5:59 p.m., Monday through Friday, except Federal holidays, the draw need not open for the passage of vessels.

The regulation governing the draw of the Brickell Avenue bridge, mile 0.1, at Miami, is published in 33 CFR 117.305(d) and requires that the bridge open on signal; except that, from 7 a.m. to 7 p.m., Monday through Friday, except Federal holidays, the draw need open only on the hour and half-hour. From 7:35 a.m. to 8:59 a.m., 12:05 p.m. to 12:59 p.m. and 4:35 p.m. to 5:59 p.m., Monday through Friday except Federal holidays, the draw need not open for the passage of vessels.

This proposed rule would not adversely affect the reasonable needs of navigation due to the limited time, six hours, that the bridges would remain in the closed position.

The Coast Guard proposes to temporarily change the operating regulations of the east and west spans of the Venetian Causeway bridges, the Miami Avenue bridge and the Brickell Avenue bridge on January 30, 2005. This proposed rule would allow the east span of the Venetian Causeway bridge to remain closed from 6:05 a.m. to 8:40 a.m. on January 30, 2005. The proposed rule would allow the west span of the Venetian Causeway to remain closed from 6:15 a.m. to 9:20 a.m. on January 30, 2005. The Miami Avenue bridge would remain closed from 6:25 a.m. to 10 a.m. on January 30, 2005. The Brickell Avenue bridge would remain closed from 7:10 a.m. to 11:59 a.m. on January 30, 2005. Public vessels of the United States and vessels in distress would be passed at anytime.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security.

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the policies and procedures of DHS is unnecessary. The short duration of time during the morning of January 30, 2005, that the bridges would remain in the closed position to facilitate the running of the marathon would have little, if any, economic impact.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of vessels that would require passage through these bridges during the morning hours of January 5, 2005. These vessels would not be able to pass through these bridges during the effective times of this proposed rule. However, due to the limited effective times of this proposed rule and the nominal amount of marine traffic expected during the early and late morning hours on a Sunday at this time of year, this proposed rule would not have a significant economic impact on a substantial number of small entities.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in FOR FURTHER INFORMATION CONTACT. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

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

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

We have analyzed this proposed rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this proposed rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (32)(e), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

On November 22, 1991, (56 FR 59110) the U.S. Army Corps of Engineers Corps) revised 33 CFR part 330, the regulations for implementing its nationwide permit (NWP) program. Section 330.6(a)(3)(ii) of this regulation states that NWP verification letters can be valid for no more than two years. Section 330.1(e) provides district engineers with 30 days to review notifications to determine whether proposed NWP activities are in the public interest and result in minimal individual and cumulative adverse environmental effects. Since 1991, there have been substantial changes to the NWP program that warrant amendments to these provisions.

We are proposing to amend § 330.6(a)(3)(ii) to allow district engineers to issue NWP verification letters that expire on the same date the NWP expires. An NWP verification letter provides confirmation that a particular activity is authorized by NWP. This amendment will help promote administrative efficiency by eliminating the two year limit for NWP verification letters, so that it will not be necessary for district engineers to reverify an NWP authorization when the permittee has not completed the authorized work within two years. In many cases, a project proponent must obtain state and local authorizations before proceeding with a project. That process can take more than two years. We believe the flexibility and efficiency of the NWP Program would be improved if this regulation is modified to allow district engineers to issue NWP verification letters that expire at the same time the NWP expires. This will allow the NWP program to accommodate state and local planning and regulatory processes, without diminishing protection of the aquatic environment.

The two year limit for verification letters was intended to allow for adjustments or clarifications of jurisdiction, policy, and procedure. It has been our experience that we seldom need to change NWP verification letters between the date the verification letter is issued and the expiration date of the NWP. If such changes are necessary, district engineers may use the procedures at § 330.5(d) to modify, suspend, or revoke a case-specific NWP authorization. In most cases, the five year time limit for NWPs is adequate for accounting for changes in jurisdiction, policy, and procedure. District engineers will have the option of issuing NWP verification letters for shorter time periods, to address concerns for the aquatic environment or other public interest review factors.

We are also proposing to amend the NWP regulations to increase the pre-construction notification (PCN) review period from 30 days to 45 days. The purpose of the PCN review period, and the de facto authorization that results if the district engineer does not respond to a PCN during that review period, is to provide some regulatory certainty to the public by requiring district engineers to respond to NWP PCNs in a timely manner.

When we reissued NWP 26 on December 13, 1996, (61 FR 65874) we increased the PCN review period for proposed NWP 26 activities resulting in the loss of greater than one-third acre of waters of the United States from 30 days to 45 days. When we issued five new and six modified NWPs to replace NWP 26 on March 9, 2000, (65 FR 12818) we increased the review period for all proposed NWP activities that require PCNs to 45 days. The 45-day PCN review period was retained in the January 15, 2002, reissuance of the NWPs (67 FR 2020).

Since 1991, there have been new and modified Federal regulations that have affected the implementation of the NWP program, and increased the amount of time required to review PCNs. For example, the National Marine Fisheries Service (NMFS) issued regulations for implementing the Essential Fish Habitat (EFH) provisions of the Magnuson-Stevens Fishery Conservation and Management Act that require consultation for activities that may adversely affect EFH. Current regulations for implementing the EFH provisions require Federal agencies to provide NMFS 30 days to respond to EFH Assessments ( see 50 CFR 600.920).

There have also been changes to the Regulatory Program's compensatory mitigation policies, such as the issuance of Regulatory Guidance Letter 02-02 on December 24, 2002, and the issuance of Mitigation Action Plan items. Compensatory mitigation proposals can be complex documents that require technical review to determine whether the proposed compensatory mitigation projects are feasible and will effectively offset authorized losses of aquatic resources.

Prior to issuing NWP verification letters, district engineers review compensatory mitigation proposals to determine whether the proposed compensatory mitigation is sufficient to ensure that the authorized work will result in minimal individual and cumulative adverse effects on the aquatic environment and other public interest factors. The 45-day review period would provide district engineers with time to effectively review compensatory mitigation proposals submitted with PCNs.

Amending the NWP regulations by increasing the 30-day PCN review period to 45 days will not adversely affect processing times for NWP verification requests. As discussed above, the 45-day PCN review period was adopted in 1996 for NWP 26, and was applied to all NWPs requiring PCNs in 2000. In FY 2003, the average processing time for an NWP verification request was 27 days. We believe that the average processing times for NWP verification requests will continue to be less than 30 days if the proposed rule change is adopted since the proposed modification reflects current NWP PCN processing practices.

We are also proposing to amend §§ 330.4(c)(6) and 330.4(d)(6) by replacing the 30-day review period with the proposed 45-day review period and replacing the term “pre-discharge notification” with “pre-construction notification” to be consistent with current terminology used in the NWP program. The term “pre-construction notification” is more appropriate, since nationwide permits may authorize, in addition to discharges of dredged or fill material into waters of the United States, construction activities in navigable waters of the United States.

In compliance with the principles in the President's Memorandum of June 1, 1998, (63 FR 31855) regarding plain language, this preamble is written using plain language. The use of “we” in this notice refers to the Corps. We have also used the active voice, short sentences, and common everyday terms except for necessary technical terms.

This proposed action will not impose any new information collection burden under the provisions of the Paperwork Production Act (44 U.S.C. 3501 et seq. ). For NWPs that require PCNs, the proposed modification changes the 30-day review period to a 45-day review period. In addition, the proposed rule changes the length of time an NWP verification letter could be valid.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to, or for, a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. For the Corps Regulatory Program under Section 10 of the Rivers and Harbors Act of 1899, Section 404 of the Clean Water Act, and Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, the current OMB approval number for information collection requirements is maintained by the Corps of Engineers (OMB approval number 0710-0003, which expires December 31, 2004). Since the proposed rule does not involve any additional collection of information from the public, this action is not subject to the Paperwork Reduction Act.

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

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

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

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

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

Pursuant to the terms of Executive Order 12866, we have determined that the proposed rule is not a “significant regulatory action” because it does not meet any of these four criteria. The proposed rule is a modification of existing procedures. For NWPs that require PCNs, the proposed rule increases the 30-day review period to 45 days. In addition, the proposed rule changes the length of time an NWP verification letter could be valid.

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

The proposed rule does not have Federalism implications. We do not believe that amending the regulation to increase the NWP PCN review period or increase the length of time an NWP verification letter may be valid will have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. The proposed rule does not impose new substantive requirements. In addition, the proposed changes will not impose any additional substantive obligations on State or local governments. Therefore, Executive Order 13132 does not apply to this proposed rule.

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

For purposes of assessing the impacts of this proposed rule on small entities, a small entity is defined as : (1) A small business based on Small Business Administration size standards; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of the proposed rule on small entities, we believe that this action will not have a significant economic impact on a substantial number of small entities. The proposed rule is consistent with current agency practice, does not impose new substantive requirements, and therefore would not have a significant economic impact on a substantial number of small entities.

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

We have determined that the proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. The proposed rule is consistent with current agency practice, does not impose new substantive requirements and therefore does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. Therefore, the proposed rule is not subject to the requirements of Sections 202 and 205 of the UMRA. For the same reasons, we have determined that the proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments. Therefore, the proposed rule is not subject to the requirements of Section 203 of UMRA.

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the proposed rule on children, and explain why the regulation is preferable to other potentially effective and reasonably feasible alternatives.

The proposed rule is not subject to this Executive Order because it is not economically significant as defined in Executive Order 12866. In addition, it does not concern an environmental or safety risk that we have reason to believe may have a disproportionate effect on children.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires agencies to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The phrase “policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

The proposed rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. It is generally consistent with current agency practice and does not impose new substantive requirements. Therefore, Executive Order 13175 does not apply to this proposed rule.

The Corps prepares appropriate environmental documentation, including Environmental Impact Statements when required, for all permit decisions. Therefore, environmental documentation under the National Environmental Policy Act is not required for this proposed rule. Appropriate environmental documentation has been prepared for each NWP.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. We will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule cannot take effect until 60 days after it is published in the Federal Register . The proposed rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Executive Order 12898 requires that, to the greatest extent practicable and permitted by law, each Federal agency must make achieving environmental justice part of its mission. Executive Order 12898 provides that each Federal agency conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under such programs, policies, and activities because of their race, color, or national origin.

The proposed rule is not expected to negatively impact any community, and therefore is not expected to cause any disproportionately high and adverse impacts to minority or low-income communities.

The proposed rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The proposed rule updates regulations for implementing the Nationwide Permit Program. The proposed rule is consistent with current agency practice, does not impose new substantive requirements and therefore will not have a significant adverse effect on the supply, distribution, or use of energy.

For the reasons stated in the preamble, the Corps proposes to amend 33 CFR part 330 as follows:

Throughout this document whenever “we,” “us,” or “our” are used we mean the EPA. The supplementary information is organized in the following order:

This action applies to particulate matter and carbon monoxide emission limitations for incinerators.

1. The Regional Office has established an electronic public rulemaking file available for inspection at Regional Material in EDocket (RME) under RME ID No. R05-OAR-2004-IN-0005, and a hard copy file which is available for inspection at the Regional Office. The official public file consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public rulemaking file does not include any document claimed by the submittal to be CBI or other information whose disclosure is restricted by statute. The official public rulemaking file is the collection of materials that is available for public viewing at the Air Programs Branch, Air and Radiation Division, EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. EPA requests that if at all possible, you contact John Paskevicz in the FOR FURTHER INFORMATION CONTACT section, to schedule your inspection of the file. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays.

2. Electronic Access. You may access this Federal Register document electronically through the regulations.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on Federal rules that have been published in the Federal Register, the Government's legal newspaper, and are open for comment.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material you claimed to be CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text “Public comment on proposed rulemaking Region 5 Air Docket “R05-OAR-2004-IN-0005” in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

The EPA is proposing to approve a revision to the Indiana SIP submitted by the State which continues to serve as a tool to reduce emissions of CO and PM from incinerators in the State in order for the State to continue to protect the health of the people of Indiana.

1. Submitting CBI. Do not submit this information to EPA through RME, regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

a. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

d. Describe any assumptions and provide any technical information and/or data that you used.

e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

f. Provide specific examples to illustrate your concerns, and suggest alternatives.

g. Explain your views as clearly as possible, avoiding the use of vulgarity or personal threats.

h. Make sure to submit your comments by the comment period deadline identified.

For additional information, see the direct final rule which is located in the rules section of this Federal Register. Copies of the request and the EPA's analysis are available electronically at RME or in hard copy at the above address. (Please telephone John Paskevicz at (312) 886-6084 before visiting the Region 5 Office.)

1. Docket. EPA has established an official public docket for this action under Docket ID No. OAR-2004-0477. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Air and Radiation Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air and Radiation Docket is (202) 566-1742. These documents are also available for review in paper form at the official EPA Air Docket in Washington, DC, Docket No. A-98-49, Category II-A2, and at the following three EPA WIPP informational docket locations in New Mexico: In Carlsbad at the Municipal Library, hours: Monday-Thursday, 10 a.m.-9 p.m., Friday-Saturday, 10 a.m.-6 p.m., and Sunday, 1 p.m.-5 p.m.; in Albuquerque at the Government Publications Department, Zimmerman Library, University of New Mexico, hours: vary by semester; and in Santa Fe at the New Mexico State Library, hours: Monday-Friday, 9 a.m.-5 p.m. As provided in EPA's regulations at 40 CFR part 2, and in accordance with normal EPA docket procedures, if copies of any docket materials are requested, a reasonable fee may be charged for photocopying.

2. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket identification number.

Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.

For additional information about EPA's electronic public docket visit EPA Dockets online or see 67 FR 38102, May 31, 2002.

You may submit comments electronically, by mail, by facsimile, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. However, late comments may be considered if time permits.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. EPA Dockets. Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. To access EPA's electronic public docket from the EPA Internet Home Page, select “Information Sources,” “Dockets,” and “EPA Dockets.” Once in the system, select “search,” and then key in Docket ID No. OAR-2004-0477. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

ii. E-mail. Comments may be sent by electronic mail (e-mail) to a-and-r-docket@epa.gov, Attention Docket ID No. OAR-2004-0477. In contrast to EPA's electronic public docket, EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly to the Docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

2. By Mail. Send your comments to: EPA Docket Center (EPA/DC), Air and Radiation Docket, Environmental Protection Agency, EPA West, Mail Code 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Attention Docket ID No. OAR-2004-0477.

3. By Hand Delivery or Courier. Deliver your comments to: Air and Radiation Docket, EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC, Attention Docket ID No. OAR-2004-0477. Such deliveries are only accepted during the Docket's normal hours of operation as identified in Unit I.A.1.

4. By Facsimile. Fax your comments to: (202) 566-1741, Attention Docket ID. No. OAR-2004-0477.

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

DOE operates the WIPP near Carlsbad in southeastern New Mexico as a deep geologic repository for disposal of TRU radioactive waste. As defined by the WIPP Land Withdrawal Act (LWA) of 1992 (Pub. L. 102-579), as amended (Pub. L. 104-201), TRU waste consists of materials containing elements having atomic numbers greater than 92 (with half-lives greater than twenty years), in concentrations greater than 100 nanocuries of alpha-emitting TRU isotopes per gram of waste. Much of the existing TRU waste consists of items contaminated during the production of nuclear weapons, such as rags, equipment, tools, and sludges.

On May 13, 1998, EPA announced its final compliance certification decision to the Secretary of Energy (published May 18, 1998, 63 FR 27354). This decision stated that the WIPP will comply with EPA's radioactive waste disposal regulations at 40 CFR part 191, subparts B and C.

The final WIPP certification decision includes conditions that (1) prohibit shipment of TRU waste for disposal at WIPP from any site other than the Los Alamos National Laboratory (LANL) until EPA determines that the site has established and executed a quality assurance program, in accordance with §§ 194.22(a)(2)(i), 194.24(c)(3), and 194.24(c)(5) for WC activities and assumptions (Condition 2 of Appendix A to 40 CFR part 194); and (2) prohibit shipment of TRU waste for disposal at WIPP from any site other than LANL until EPA has approved the procedures developed to comply with the waste characterization requirements of § 194.22(c)(4) (Condition 3 of Appendix A to 40 CFR part 194). EPA's approval process for waste generator sites is described in § 194.8. As part of EPA's decision-making process, the DOE is required to submit to EPA appropriate documentation of quality assurance and WC programs at each DOE waste generator site seeking approval for shipment of TRU radioactive waste to WIPP. In accordance with § 194.8, EPA will place such documentation in the official Air Docket in Washington, DC, and informational dockets in the State of New Mexico for public review and comment.

In June 2003, EPA inspected Hanford's WC processes used when characterizing PFP solid waste. During this inspection, however, EPA did not examine the acceptable knowledge (AK) process. EPA inspected the other components of the system of controls (radioassay, radiography, visual examination, and WIPP Waste Information System) implemented by Hanford to demonstrate to EPA and DOE the adequacy of its TRU waste characterization program. In an August 7, 2003, letter to the Carlsbad Field Office (CBFO), EPA approved Hanford's TRU debris waste from the Waste Receiving and Processing Plant and PFP characterized using the approved systems and processes covered in the June 2003 Inspection Report. In the letter, EPA specifically stated that “EPA has not approved acceptable knowledge for TRU solids, specifically ash and mixed oxides, characterized at the PFP facility. As a result, DOE may not dispose at the WIPP any ash and mixed oxides from the PFP facility.”

EPA recently discovered that between July 25 and September 4, 2004, DOE had shipped and emplaced in the WIPP approximately 1,500 drums of PFP solid waste (ash) and mixed oxides from Hanford. The emplacement of the PFP solid waste drums at the WIPP repository was based on a DOE certification letter to Hanford, dated July 14, 2004. The DOE certification letter did not reflect EPA's restriction on disposal of Hanford's PFP solid waste stream. This restriction was based on the fact that EPA had not fully evaluated, nor approved, AK documentation as part of the waste characterization for these solid wastes. Under our regulations, without EPA approval, DOE cannot certify any waste from TRU waste sites for disposal at the WIPP. Thus, CBFO's certification of Hanford PFP solids for disposal at WIPP conflicts with EPA's site approval and violates EPA regulations at 40 CFR 194.8 and 24. DOE has voluntarily suspended further PFP solid waste shipments from Hanford to WIPP and has agreed to take steps to identify the cause of the error and prevent recurrence. Nevertheless, significant quantities of this waste have already been emplaced at WIPP. EPA must assess the AK process to comply with the requirements of 40 CFR part 194, section 24. EPA does not believe that the PFP solid wastes improperly emplaced at WIPP constitute a threat to human health, to the environment or to the long-term performance of the WIPP repository. Based on this determination, the Hanford PFP solid waste will remain in WIPP while EPA undertakes a desk-top review of the AK information for the PFP solid wastes.

With regard to mixed oxides, DOE has clarified that these materials are properly categorized as debris waste rather than as part of the PFP solid waste stream. Based on documentation provided by the DOE, we concur in this determination. The 900 drums of mixed oxides were fully characterized using the procedures approved by EPA for debris waste (S5000) in our August 7, 2003, letter. Therefore, we find their characterization is adequate and no further action is needed to confirm that their placement in the WIPP is allowed. For the remaining 600 drums of ash belonging to the solid waste stream, further evaluation is needed to assess the adequacy of waste characterization processes. Until EPA completes its review of the AK process for Hanford PFP solids and, if warranted, approves the subject waste stream (S3000) for disposal at the WIPP, the Agency has directed DOE not to resume shipment of the remaining TRU solid waste containers from the Hanford PFP.

In most cases, EPA's inspections are conducted through on-site inspections in which the operation of WC equipment and processes can be demonstrated. However, the evaluation of AK relies almost exclusively on a review of documentation. Thus, while such review is often conducted on-site ( for convenience, in conjunction with other on-site evaluations), it can be conducted at a remote location with equal ease and rigor. This is especially true for AK related to Hanford PFP solids. Hanford has not relied on the AK information for physical and radiological characterization of the PFP solids; the site relied exclusively on spectroscopic systems to establish isotopic ratios. (Isotopic ratios are sometime used to estimate individual radionuclides when the equipment is not able to quantify them.) Because AK information for the waste was not used to derive or extrapolate WC data tracked for the waste, we expect little linkage with other WC procedures, so there is no need to conduct an on-site inspection. By thorough inspection of the AK documents we can determine adequacy, completeness, sufficiency, and appropriateness of the AK used for waste characterization.

For this inspection, EPA will conduct a desk-top review of the most recent versions of the AK documents applicable to the Hanford PFP solid waste that were used by the DOE auditors in June 2003. As necessary, EPA will interview by phone the relevant experts at Hanford PFP. Evaluation of the AK documentation pertaining to the PFP solids will be limited to verification of the waste pedigree—defense determination, S3000 waste category determination, absence of liquids confirmation, and classification as TRU waste. This evaluation will allow sufficient evaluation of the adequacy, completeness, and effectiveness of the applicable AK process.

Through this Federal Register notice, EPA is notifying the public that EPA will evaluate Hanford's AK process and procedure specific to the PFP solid waste. EPA will perform an inspection of Hanford's AK process for the PFP solid waste in accordance with Condition 3 of the WIPP Certification. If EPA determines as a result of the evaluation that the AK documentation is adequate and is well supported by the radioassay, radiography, and visual examination results, we will notify DOE by letter and place the letter in the official Air Docket in Washington, DC, as well as in the informational docket locations in New Mexico. A letter of approval will allow DOE to leave waste in WIPP underground panels and to resume disposal of the remaining PFP solid waste characterized by the approved processes from Hanford to WIPP. EPA will not make a determination of compliance prior to completing its AK documentation audit or before the 30-day comment period has closed. We have separately directed DOE by letter what measures or restrictions are necessary to prevent recurrence of such violations of EPA's site-specific waste characterization requirements. This letter is available in Docket A-98-49 (Washington, DC, and our three locations in New Mexico), as well as online at the EDOCKET Web site ( http://www.epa.gov/edocket ) in Docket ID No. OAR-2004-0477.

Information on the certification decision is filed in the official EPA Air Docket, Docket No. A-93-02 and is available for review in Washington, DC, and at three EPA WIPP informational docket locations in New Mexico. The dockets in New Mexico contain only major items from the official Air Docket in Washington, DC, plus those documents added to the official Air Docket since the October 1992 enactment of the WIPP LWA.

This proposed rulemaking, 69 FR 63489, November 2, 2004, concerns a decision to provide additional twenty megahertz of spectrum that can be used to offer a variety of broadband and advanced wireless services (AWS), potentially including “third generation” (3G) wireless services, the Commission ask for public comment on licensing, technical, and operational rules to govern the use of the 1915-1920 MHz, 1995-2000 MHz, and 2020-2025 MHz and 2175-2180 MHz bands designated for AWS. The Commission announced its desire to provide licensees of this spectrum with flexibility to provide any fixed or mobile service consistent with the technical parameters of allocation.

This is a summary of the Commission's Notice of Proposed Rulemaking in WC Docket No. 02-78, adopted October 21, 2004, and released November 15, 2004 (NPRM). The complete text of this NPRM is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160. It is also available on the Commission's Web site at http://www.fcc.gov.

Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. All filings should refer to WC Docket No. 02-78. Comments filed through ECFS can be sent as an electronic file via the Internet at http://www.fcc.gov/e-file/ecfs.html. Only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, postal service mailing address, and the applicable docket number, which in this instance is WC Docket No. 02-78. 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 ecfshelp@fcc.gov, and should include the following words in the regarding line of the message: “get form<your e-mail address>.” A sample form and directions will be sent in reply.

Parties who choose to file by paper must file an original and four copies of each filing. Parties filing by paper must also send three (3) courtesy copies to the attention of Janice M. Myles, Wireline Competition Bureau, Competition Policy Division, 445 12th Street, SW., Suite 5-C327, Washington, DC 20554, or via e-mail janice.myles@fcc.gov. Paper filings and courtesy copies must be delivered in the following manner. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail).

The Commission's contractor, Natek, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. This facility is the only location where hand-delivered or messenger-delivered paper filings or courtesy copies for the Commission's Secretary and Commission staff will be accepted. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554.

All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

Each comment and reply comment must include a short and concise summary of the substantive arguments raised in the pleading. Comments and reply comments must also comply with section 1.48 and all other applicable sections of the Commission's rules. We direct all interested parties to include the name of the filing party and the date of the filing on each page of their comments and reply comments. All parties are encouraged to utilize a table of contents, regardless of the length of their submission.

1. Background. Mid-Rivers Telephone Cooperative, Inc. (Mid-Rivers), a competitive LEC in the Terry, Montana exchange, filed a petition with the Commission requesting classification as an incumbent LEC in the Terry exchange pursuant to section 251(h)(2) of the Communications Act of 1934, as amended (the Act or Communication Act). This provision allows the Commission to determine “by rule” to treat a competitive LEC as an incumbent LEC if it satisfies a three-prong test: (1) The carrier occupies a market position comparable to an incumbent LEC; (2) the carrier has “substantially replaced” an incumbent LEC, and; (3) the reclassification serves the public interest, convenience, and necessity. 47 U.S.C. 251(h)(2).

2. Mid-Rivers, also an incumbent LEC in a nearby exchange, filed this petition as a result of its success in acquiring approximately 93 percent of the access lines in the Terry exchange, almost exclusively on its own facilities. Mid-Rivers asserts that it should be classified as an incumbent LEC. Mid-Rivers' petition is supported by several parties, but also is opposed by two parties.

3. Notice of Proposed Rulemaking. For Mid-Rivers to be treated as an incumbent LEC, the Commission must first find that it “occupies a position in the market for telephone exchange service with an area that is comparable to the position occupied by [an incumbent LEC]”. 47 U.S.C. 251(h)(2)(A). The Commission seeks comment on how to define the relevant “area” under section 251(h)(2)(A). Assuming that the Terry exchange is the relevant “area,” the Commission tentatively concludes that Mid-Rivers satisfies the first prong of the statutory standard, based on their provisioning of facilities based service to 93 percent of the exchange.

4. The second prong of section 251(h)(2)(B) requires a showing that Mid-Rivers has “substantially replaced” an incumbent LEC. 47 U.S.C. 251(h)(2)(B). The Commission set out a standard for fulfilling this requirement in the Guam Declaratory Ruling and NPRM, where the applicant LEC provides services “to all or virtually all” of the subscribers in the area. 62 FR 29320-01, adopted, 63 FR 42275-01. Again, assuming the relevant “area” is the Terry exchange, the Commission tentatively concludes that Mid-Rivers has “substantially replaced” Qwest, based on its 93 percent share of the exchange, satisfying section 251(h)(2)(B). 47 U.S.C. 251(h)(2)(B).

5. Additionally, the Commission seeks comment on whether the requested classification will fulfill the “public interest, convenience, and necessity” requirements under 251(h)(2)(C). As part of this inquiry, we also seek comment on the benefits of advanced services provided by Mid-Rivers and on whether the public interest is satisfied, possibly including consideration of broader market conditions. We also seek comment on the significance of universal service concerns, including possible effects on high-cost universal service support. Further, we seek comment on the relevance of access charge issues to the public interest analysis.

6. Another consideration, which the Mid-Rivers petition does not discuss, is the subsequent regulatory treatment of Qwest, as Qwest still fits the literal definition of an incumbent LEC. Because this is a novel issue for the Commission, and section 251(h) is silent on the matter, we seek comment on what regulatory treatment is appropriate for legacy incumbent LECs. Furthermore, the Commission seeks comment on whether automatic reclassification of the legacy incumbent LEC is an appropriate result of reclassifying the competitive LEC. The Commission also requests comment on whether two incumbent LECs can co-exist in an exchange, and the implications this would have on the current implementation of the Act including, universal service, and other rules predicated on a single incumbent LEC per area. The Commission has authority under section 10 of the Act to forbear from certain requirements and seeks comments on whether this is the required mechanism to address the situation.

7. Finally, the Commission seeks to develop a record on other considerations regarding this petition. We seek comment on whether revised Commission rules might resolve this situation. We also seek comment on current market trends that are related to this issue, and what underlying market and regulatory motivations are driving such a trend. We seek further comment on the process the Commission should use to address any further applications of this type. If the record indicates that a number of similar carriers are interested in filing similar applications, we seek comment on whether and how to administer an efficient process.

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

9. As required by the RFA, the Commission has prepared this IRFA of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this NPRM. Written public comments are sought 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 of the NPRM, including this IRFA, to the Chief Counsel for SBA Advocacy.

10. The Commission initiates this rulemaking proceeding because the Mid-Rivers' petition raises novel and difficult questions implicating several of the Commission's major policies affecting LECs of all sizes, including local competition, universal service, and access charges. In this proceeding, we seek comment on whether Mid-Rivers satisfies the requirements of section 251(h)(2) to be classified as an incumbent LEC in Terry, Montana. To this end, the Commission makes tentative conclusions that Mid-Rivers satisfies the first two statutory prongs of section 251(h)(2). However, the Commission will weigh these tentative conclusions against the alternative possibility that Mid-Rivers does not satisfy the standards set forth in the Act. The Commission also plans to consider whether the petition satisfies the third prong of section 251(h)(2)—the public interest standard—and will weigh the benefits of granting the application against other considerations, such as the impact on other major Commission policies. Furthermore, the Commission plans to review: (1) The subsequent regulatory treatment of Qwest, including whether two incumbent LECs can serve the same exchange, and whether the Commission is authorized to reclassify Qwest as a competitive LEC; (2) whether the Act permits expected future applications of this type to be decided by final order rather than by rulemaking; and (3) the appropriate regulatory requirements for classification changes such as these. Thus, we ask interested parties to address how the Commission can best balance its objective to advance local competition and other policy goals within the existing statutory and regulatory framework. The Commission also plans to consider the various alternative approaches, as described in the Notice of Proposed Rulemaking.

11. The legal basis for any action that may be taken pursuant to this Notice is contained in sections 4, 10, 201-202, 214, 303 and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154, 160, 201-204, 214, 303, and 403, section 706 of the Telecommunications Act of 1996, 47 U.S.C. 157nt, and §§ 1.1, 1.48, 1.411, 1.412, 1.415, 1.419, and 1.1200-1.1216, of the Commission's rules, 47 CFR 1.1, 1.48, 1.411, 1.412, 1.415, 1.419, and 1.1200-1.1216.

12. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

13. In this section, we further describe and estimate the number of small entity licensees and regulatees that may be affected by rules adopted in this Order. The most reliable source of information regarding the total numbers of certain common carrier and related providers nationwide, as well as the number of commercial wireless entities, appears to be the data that the Commission publishes in its Trends in Telephone Service report. The SBA has developed small business size standards for wireline and wireless small businesses within the three commercial census categories of Wired Telecommunications Carriers, Paging, and Cellular and Other Wireless Telecommunications. Under these categories, a business is small if it has 1,500 or fewer employees. Below, using the above size standards and others, we discuss the total estimated numbers of small businesses that might be affected by our actions.

14. We have included small incumbent local exchange carriers in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( e.g. , a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

15. Wired Telecommunications Carriers. The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. According to Census Bureau data for 1997, there were 2,225 firms in this category, total, that operated for the entire year. Of this total, 2,201 firms had employment of 999 or fewer employees, and an additional 24 firms had employment of 1,000 employees or more. Thus, under this size standard, the great majority of firms can be considered small.

16. Incumbent Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,310 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,310 carriers, an estimated 1,025 have 1,500 or fewer employees and 285 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by our proposed action.

17. Competitive Local Exchange Carriers (CLECs), Competitive Access Providers (CAPs), “Shared-Tenant Service Providers,” and “Other Local Service Providers.” Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 563 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 563 carriers, an estimated 472 have 1,500 or fewer employees and 91 have more than 1,500 employees. In addition, 14 carriers have reported that they are “Shared-Tenant Service Providers,” and all 14 are estimated to have 1,500 or fewer employees. In addition, 37 carriers have reported that they are “Other Local Service Providers.” Of the 37, an estimated 36 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities that may be affected by our proposed action.

18. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a small business size standard specifically for providers of interexchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 281 carriers have reported that they are engaged in the provision of interexchange service. Of these, an estimated 254 have 1,500 or fewer employees and 27 have more than 1,500 employees. Consequently, the Commission estimates that the majority of IXCs are small entities that may be affected by our proposed action.

19. Operator Service Providers (OSPs). Neither the Commission nor the SBA has developed a small business size standard specifically for operator service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 23 carriers have reported that they are engaged in the provision of operator services. Of these, an estimated 22 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that the majority of OSPs are small entities that may be affected by our proposed action.

20. Prepaid Calling Card Providers. The SBA has developed a size standard for a small business within the category of Telecommunications Resellers. Under that SBA size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 32 companies reported that they were engaged in the provision of prepaid calling cards. Of these 32 companies, an estimated 31 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that the great majority of prepaid calling card providers are small entities that may be affected by the rules and policies adopted herein.

21. Other Toll Carriers. Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to “Other Toll Carriers.” This category includes toll carriers that do not fall within the categories of interexchange carriers, OSPs, prepaid calling card providers, satellite service carriers, or toll resellers. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission's data, 65 companies reported that their primary telecommunications service activity was the provision of other toll services. Of these 65 companies, an estimated 62 have 1,500 or fewer employees and three have more than 1,500 employees. Consequently, the Commission estimates that most “Other Toll Carriers” are small entities that may be affected by the rules and policies adopted herein.

22. Wireless Service Providers. The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” and “Cellular and Other Wireless Telecommunications.” Under both SBA categories, a wireless business is small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 1997 show that there were 1,320 firms in this category, total, that operated for the entire year. Of this total, 1,303 firms had employment of 999 or fewer employees, and an additional 17 firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the great majority of firms can be considered small. For the census category Cellular and Other Wireless Telecommunications, Census Bureau data for 1997 show that there were 977 firms in this category, total, that operated for the entire year. Of this total, 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more. Thus, under this second category and size standard, the great majority of firms can, again, be considered small. Broadband PCS. The broadband PCS spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission defined “small entity” for Blocks C and F as an entity that has average gross revenues of $40 million or less in the three previous calendar years. For Block F, an additional classification for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years.” These standards defining “small entity” in the context of broadband PCS auctions have been approved by the SBA. No small businesses, within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 small and very small business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. On March 23, 1999, the Commission re-auctioned 347 C, D, E, and F Block licenses. There were 48 small business winning bidders. On January 26, 2001, the Commission completed the auction of 422 C and F Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses. Subsequent events, concerning Auction 305, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. In addition, we note that, as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated.

23. Narrowband Personal Communications Services. The Commission held an auction for Narrowband PCS licenses that commenced on July 25, 1994, and closed on July 29, 1994. A second auction commenced on October 26, 1994 and closed on November 8, 1994. For purposes of the first two Narrowband PCS auctions, “small businesses” were entities with average gross revenues for the prior three calendar years of $40 million or less. Through these auctions, the Commission awarded a total of 41 licenses, 11 of which were obtained by four small businesses. To ensure meaningful participation by small business entities in future auctions, the Commission adopted a two-tiered small business size standard in the Narrowband PCS Second Report and Order . 65 FR 35875, June 6, 2000. A “small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $40 million. A “very small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $15 million. The SBA has approved these small business size standards. A third auction commenced on October 3, 2001 and closed on October 16, 2001. Here, five bidders won 317 (Metropolitan Trading Areas and nationwide) licenses. Three of these claimed status as a small or very small entity and won 311 licenses.

24. Specialized Mobile Radio. The Commission awards “small entity” bidding credits in auctions for Specialized Mobile Radio (SMR) geographic area licenses in the 800 MHz and 900 MHz bands to firms that had revenues of no more than $15 million in each of the three previous calendar years. The Commission awards “very small entity” bidding credits to firms that had revenues of no more than $3 million in each of the three previous calendar years. The SBA has approved these small business size standards for the 900 MHz Service. The Commission has held auctions for geographic area licenses in the 800 MHz and 900 MHz bands. The 900 MHz SMR auction began on December 5, 1995, and closed on April 15, 1996. Sixty bidders claiming that they qualified as small businesses under the $15 million size standard won 263 geographic area licenses in the 900 MHz SMR band. The 800 MHz SMR auction for the upper 200 channels began on October 28, 1997, and was completed on December 8, 1997. Ten bidders claiming that they qualified as small businesses under the $15 million size standard won 38 geographic area licenses for the upper 200 channels in the 800 MHz SMR band. A second auction for the 800 MHz band was held on January 10, 2002 and closed on January 17, 2002 and included 23 BEA licenses. One bidder claiming small business status won five licenses.

25. 39 GHz Service. The Commission created a special small business size standard for 39 GHz licenses—an entity that has average gross revenues of $40 million or less in the three previous calendar years. An additional size standard for “very small business” is: An entity that, together with affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. The SBA has approved these small business size standards. The auction of the 2,173 39 GHz licenses began on April 12, 2000 and closed on May 8, 2000. The 18 bidders who claimed small business status won 849 licenses. Consequently, the Commission estimates that 18 or fewer 39 GHz licensees are small entities that may be affected by the rules and polices proposed herein.

26. Multipoint Distribution Service, Multichannel Multipoint Distribution Service, and Instructional Television Fixed Service. Multichannel Multipoint Distribution Service (MMDS) systems, often referred to as “wireless cable,” transmit video programming to subscribers using the microwave frequencies of the Multipoint Distribution Service (MDS) and Instructional Television Fixed Service (ITFS). In connection with the 1996 MDS auction, the Commission defined “small business” as an entity that, together with its affiliates, has average gross annual revenues that are not more than $40 million for the preceding three calendar years. The SBA has approved of this standard. The MDS auction resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 claimed status as a small business. At this time, we estimate that of the 61 small business MDS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent MDS licensees that have gross revenues that are not more than $40 million and are thus considered small entities.

27. In addition, the SBA has developed a small business size standard for Cable and Other Program Distribution, which includes all such companies generating $12.5 million or less in annual receipts. According to Census Bureau data for 1997, there were a total of 1,311 firms in this category, total, that had operated for the entire year. Of this total, 1,180 firms had annual receipts of under $10 million, and an additional 52 firms had receipts of $10 million or more but less than $25 million. Consequently, we estimate that the majority of providers in this service category are small businesses that may be affected by the proposed rules and policies.

28. Finally, while SBA approval for a Commission-defined small business size standard applicable to ITFS is pending, educational institutions are included in this analysis as small entities. There are currently 2,032 ITFS licensees, and all but 100 of these licenses are held by educational institutions. Thus, we tentatively conclude that at least 1,932 ITFS licensees are small businesses.

29. Incumbent 24 GHz Licensees. This analysis may affect incumbent licensees who were relocated to the 24 GHz band from the 18 GHz band, and applicants who wish to provide services in the 24 GHz band. The applicable SBA small business size standard is that of “Cellular and Other Wireless Telecommunications” companies. This category provides that such a company is small if it employs no more than 1,500 persons. According to Census Bureau data for 1997, there were 977 firms in this category, total, that operated for the entire year. Of this total, 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more. Thus, under this size standard, the great majority of firms can be considered small. These broader census data notwithstanding, we believe that there are only two licensees in the 24 GHz band that were relocated from the 18 GHz band, Teligent and TRW, Inc. It is our understanding that Teligent and its related companies have less than 1,500 employees, though this may change in the future. TRW is not a small entity. Thus, only one incumbent licensee in the 24 GHz band is a small business entity.

30. Future 24 GHz Licensees. With respect to new applicants in the 24 GHz band, we have defined “small business” as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the three preceding years not exceeding $15 million. “Very small business” in the 24 GHz band is defined as an entity that, together with controlling interests and affiliates, has average gross revenues not exceeding $3 million for the preceding three years. The SBA has approved these definitions. The Commission will not know how many licensees will be small or very small businesses until the auction, if required, is held.

31. The Commission in this Notice of Proposed Rulemaking makes tentative conclusions as to some, but not all of the necessary requirements of section 251(h)(2) for a competitive LEC, Mid-Rivers, to be declared an incumbent LEC. Should the Commission decide to find, after reviewing the record, that Mid-Rivers satisfies the requirements of section 251(h)(2) to be declared an incumbent LEC, and should the Commission make a finding as to the appropriate regulatory classification of the legacy incumbent LEC Qwest, the filing and compliance requirements of both Mid-Rivers and Qwest could potentially change. This is because incumbent LEC status often entails additional regulatory obligation and our decision on how to treat the legacy incumbent LEC could reduce Qwest's regulatory obligation. The Commission seeks comment in this Notice of Proposed Rulemaking regarding what, if any, broadly applicable rules would be necessary to properly implement this provision of the Act. Without more certainty about what rules, if any, the Commission will choose to adopt, we cannot accurately estimate the cost of compliance by small carriers. We therefore seek comment on the types of burdens carriers could face if the proposed recommendations are adopted. Entities, especially small businesses, are encouraged to quantify, if possible, the costs and benefits of potential reporting, recordkeeping, and other compliance requirements.

32. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance 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.

33. While the Commission's primary concern is to implement the provisions of the Act, the Commission also plans to evaluate any adverse effect that its review of issues in this proceeding will have on small business entities. Our tentative conclusions that Mid-Rivers satisfies two of the three prongs of the statutory standard apply irrespective of the petitioner's size. However, some of the regulations and obligations that pertain to the incumbent LEC status that Mid-Rivers seeks are, by statute, limited in many circumstances because the Act exempts certain small incumbent local exchange telephone companies from the significant obligations of section 251(c). Thus, because Mid-Rivers qualifies for the exemption because of its small size, if our tentative conclusions are adopted as a part of an order granting the relief requested by Mid-Rivers, it is most likely that Mid-Rivers will not be subject to many of the costly regulations that generally pertain to incumbent LECs. Finally, we also consider procedural mechanisms that, if warranted, could potentially reduce the burdens on small entities that wish to seek similar treatment from the Commission. While it remains unclear what effect the alternative choices we face in this proceeding will have on small business entities, establishing this rulemaking will create a full record upon which we can more capably weigh these matters.

34. None.

Accordingly, it is ordered that the Notice of Proposed Rulemaking is adopted.

We solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning our draft economic analysis and the proposed rule to designate critical habitat for the Buena Vista Lake shrew. 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 exclusion outweigh the benefits of specifying such area as part of the critical habitat;

(2) Specific information on the amount and distribution of shrew habitat, and what habitat is essential to the conservation of this species and why;

(3) Land use designations and current or planned activities in the subject area and their possible impacts on proposed habitat, specifically impacts of the designation on the operation and maintenance of irrigation canals, and on existing and any planned future oil and gas activities within or near the proposed designation;

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

(5) Whether the economic analysis identifies all State and local costs attributable to the proposed critical habitat designation. If not, what costs are overlooked;

(6) Whether the economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes imposed as a result of the designation of critical habitat;

(7) Whether the economic analysis correctly assesses the effect on regional costs associated with land use controls that derive from the designation;

(8) Assumptions reflected in the economic analysis regarding land use practices and current, planned, or reasonably foreseeable activities in the subject areas, including comments or information relating to the potential effects that the designation could have on private landowners as a result of actual or foreseeable State and local government responses due to the California Environmental Quality Act;

(9) Whether the designation will result in disproportionate economic impacts to specific areas that should be evaluated for possible exclusion from the final designation;

(10) Whether the economic analysis appropriately identifies all costs that could result from the designation; and

(11) Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments.

All comments and information submitted during the initial comment period on the proposed rule need not be resubmitted. If you wish to comment, you may submit your comments and materials concerning the draft economic analysis and proposed rule by any one of several methods (see ADDRESSES section).

Please submit Internet comments to BVLS_pCH@fws.gov in an ASCII file format and avoid the use of special characters and encryption. Please also include “Attn: Buena Vista Lake shrew Critical Habitat” in your e-mail subject header, and your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your Internet message, contact us directly by calling our Sacramento Fish and Wildlife Office ( see FOR FURTHER INFORMATION CONTACT section).

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home addresses from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which 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 prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate critical habitat, will be available for inspection, by appointment, during normal business hours, in our Sacramento Fish and Wildlife Office at the above address.

In our August 19, 2004, proposed rule to designate critical habitat for the Buena Vista Lake shrew (69 FR 51417) we indicated that we would reopen the public comment period for an additional 60 days upon publication of this notice of availability of the draft economic analysis of the proposed designation. However, due to delays in completing the draft economic analysis and a court-ordered deadline for the completion of the final rule, we are unable to reopen the public comment period for that length of time. In order to ensure compliance with the United States District Court for the Eastern District of California's order ( Kern County Farm Bureau et al. v. Anne Badgley, Regional Director of the United States Fish and Wildlife Service, Region 1 et al., CV F 02-5376 AWIDLB) requiring us to publish a final determination no later than January 12, 2005, we are only able to reopen the public comment period for 15 days.

On August 19, 2004, we published a proposed rule to designate critical habitat, pursuant to the Endangered Species Act of 1973, as amended (Act) for the Buena Vista Lake shrew (69 FR 51417). We proposed a total of 4,649 acres in 5 units of critical habitat within the Central Valley of California. The Buena Vista Lake shrew formerly occurred in wetlands around Buena Vista Lake, and presumably throughout the Tulare Basin. The animals were likely distributed throughout the swampy margins of Kern, Buena Vista, Goose, and Tulare Lakes. By the time the first shrews were collected and described, these lakes had already been drained and mostly cultivated with only sparse remnants of the original flora and fauna remaining. Essential habitat features of the shrew include riparian or wetland communities supporting a complex vegetative structure with a thick cover of leaf litter or dense mats of low-lying vegetation; suitable moisture supplied by a shallow water table, irrigation, or proximity to permanent or semipermanent water; and a consistent and diverse supply of prey. The shrew is now known from five isolated riparian or wetland remnants within the Tulare Basin of the Central Valley of California. Critical habitat receives protection from destruction or adverse modification through required consultation under section 7 of the Act with regards to actions carried out, funded, or authorized by a Federal agency. Section 4(b)(2) of the Act requires that the Secretary of the Interior shall designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact of specifying any particular area as critical habitat. The public comment period for the August 19, 2004, proposal originally closed on October 18, 2004.

We have prepared a draft economic analysis of the effects of the proposed critical habitat designation, and are now announcing its availability for review. The economic analysis addresses the impacts of the Buena Vista Lake shrew conservation efforts on activities occurring on lands proposed for designation. The analysis includes cost effects on agricultural producers adjacent or proximate to three Critical Habitat Units (CHU), biological monitoring, Habitat Conservation Plan (HCP) development, and supplemental water purchases, as well as potential uncertainty to landowners and project delay.

The economic analysis includes both retrospective, or pre-designation, and prospective, or post-designation, economic costs to various entities as a result of Buena Vista Lake shrew conservation activities. Retrospective costs are those costs estimated to have occurred from the time the species was listed in April 2002 until the proposal of critical habitat in August 2004. The estimated retrospective cost is $122,237. These costs are primarily certain administrative costs associated with the ongoing preparation of a Comprehensive Conservation Plan at the Kern National Wildlife Refuge CHU and the ongoing section 7 consultation related to the preparation of a biological opinion regarding the Goose Lake proposed CHU.

Present values shown are calculated at three and seven percent discount rates. Total prospective costs range from $6.7 to $14.2 million under a three percent discount rate, and $4.8 to $10.1 million under a seven percent rate. Thus, prospective average annual costs range from $452,266 to $955,833. These costs include effects on agricultural producers adjacent or proximate to three CHUs, biological monitoring, HCP development, and supplemental water purchases. The ranges reflect totals with and without supplemental water for Kern Lake, Coles Levee, and Kern Fan Water Recharge CHUs. Both the Kern National Wildlife Refuge and Goose Lake CHUs are assumed to require supplemental water, and thus do not contribute to a range of costs.

In accordance with Executive Order 12866, the proposed designation of critical habitat is a significant rule only in that it may raise novel legal and policy issues. However, the Economic Analysis indicates that the proposed designation will not have an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the tight timeline for publication in the Federal Register , the Office of Management and Budget (OMB) has not formally reviewed this rule.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities ( i.e. , small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act (RFA) to require Federal agencies to provide a statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. However, the SBREFA does not explicitly define “substantial number” or “significant economic impact.” Consequently, to assess whether a “substantial number” of small entities is affected by this designation, this analysis considers the relative number of small entities likely to be impacted in an area. The SBREFA also amended the RFA to require a certification statement. Based on the information that is available to us at this time from the economic analysis, we are certifying that this proposed designation of critical habitat will not have a significant economic impact on a substantial number of small entities. The following discussion explains our rationale.

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

The Regulatory Flexibility Act does not explicitly define either “substantial number” or “significant economic impact.” Consequently, to assess whether a “substantial number” of small entities is affected by this designation, this analysis considers the relative number of small entities likely to be impacted in the area. Similarly, this analysis considers the relative cost of compliance on the revenues/profit margins of small entities in determining whether or not entities incur a “significant economic impact.” Only small entities that are expected to be directly affected by the designation are considered in this portion of the analysis. This approach is consistent with several judicial opinions related to the scope of the Regulatory Flexibility Act. ( Mid-Tex Electric Co-Op, Inc. v. F.E.R.C. and American Trucking Associations, Inc. v. EPA ).

Designation of critical habitat only affects activities conducted, funded, or permitted by Federal agencies; non-Federal activities are not affected by the designation if they lack a Federal nexus. In areas where the species is present, Federal agencies funding, permitting, or implementing activities are already required to avoid jeopardizing the continued existence of the Buena Vista Lake shrew through consultation with us under section 7 of the Act. If this critical habitat designation is finalized, Federal agencies must also consult with us to ensure that their activities do not destroy or adversely modify designated critical habitat through consultation with us.

Should a federally funded, permitted, or implemented project be proposed that may affect designated critical habitat, we will work with the Federal action agency and any applicant, through section 7 consultation, to identify ways to implement the proposed project while minimizing or avoiding any adverse effect to the species or critical habitat. In our experience, the vast majority of such projects can be successfully implemented with at most minor changes that avoid significant economic impacts to project proponents.

Based on our experience with section 7 consultations for all listed species, virtually all projects-including those that, in their initial proposed form, would result in jeopardy or adverse modification determinations in section 7 consultations—can be implemented successfully with, at most, the adoption of reasonable and prudent alternatives. These measures, by definition, must be economically feasible and within the scope of authority of the Federal agency involved in the consultation. The kinds of actions that may be included in future reasonable and prudent alternatives include avoidance, conservation set-asides, management of competing non-native species, restoration of degraded habitat, construction of protective fencing, and regular monitoring. These measures are not likely to result in a significant economic impact to project proponents.

In the case of the Buena Vista Lake shrew, we anticipate that that the proposed designation of critical habitat is not likely to have a significant impact on any small entities or classes of small entities. However, no section 7 consultations have been completed since the listing in 2002; in addition, no identifiable changes in economic activities resulting from shrew conservation efforts have taken place since the listing. The costs presented in the economic analysis reflect, where data permit, ranges representing the reasonably foreseeable future. These costs are likely to be incurred because of shrew conservation activities related to agriculture, operation and maintenance of groundwater recharge projects and resultant effects on water supplies, and water requirements for habitat.

We considered the potential relative cost of compliance to these small entities and evaluated only small entities that are expected to be directly affected by the proposed designation of critical habitat. Based on the economic analysis, we do not anticipate that the proposed designation of critical habitat for the Buena Vista Lake shrew will result in increased compliance costs for small entities. The proposed designation of critical habitat does not, therefore, create a new cost for the small entities to comply with the proposed designation. Instead, proposed designation only impacts Federal agencies that conduct, fund, or permit activities that may affect critical habitat for the shrew. Thus, we conclude that the proposed designation of critical habitat is not likely to result in a significant impact to this group of small entities. Therefore, we are certifying that the proposed designation of critical habitat for the shrew will not have a significant economic impact on a substantial number of small entities, and an initial regulatory flexibility analysis is not required.

In summary, we have considered whether this proposed designation would result in a significant economic impact on a substantial number of small entities, and we have concluded that it would not. Future consultations are not likely to affect a substantial number of small entities. We anticipate that the types of activities we review under section 7 of the Act will not change significantly in the future.

Under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq. ), this rule is not a major rule. The Economic Analysis indicates that the proposed designation will not have an annual effect on the economy of $100 million or more. Therefore, we believe that this critical habitat designation will not have an effect on the economy of $100 million or more, will not cause a major increase in costs or prices for consumers, and will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of designating critical habitat for the Buena Vista Lake shrew. Our assessment concludes that this proposed rule does not pose significant takings implications.

The primary author of this notice is Shannon Holbrook, Sacramento Fish and Wildlife Services Office ( see ADDRESSES section).

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