On November 5, 2001, the FAA issued AD 2001-23-02, Amendment 39-12499 (66 FR 57859, November 19, 2001), for RR models RB211-535E4-37, RB211-535E4-B-37, RB211-535C-37, RB211-535E4-B-75, and RB211-22B-02 turbofan engines. That AD requires inspecting certain HP turbine discs, manufactured between 1989 and 1999, for cracks in the rim cooling air holes, and, if necessary, replacing the discs with serviceable parts. That AD resulted from reports of cracks in rim cooling air holes in two high-life RR Trent 800 discs. That condition, if not corrected, could result in possible disc failure, which could result in an uncontained engine failure and damage to the airplane.

Since that AD was issued, the Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, recently notified the FAA that an unsafe condition may exist on Rolls-Royce plc models RB211-535E4-37, RB211-535E4-B-37, RB211-535C-37, RB211-535E4-B-75, and RB211-535E4-C series turbofan engines. The CAA advises that cracks in a model RB211-524 HP turbine disc had propagated further than expected based on recent inspection findings and a re-assessment of the disc lifing model used to define the inspection thresholds in AD 2001-23-02. This AD requires inspection of certain HP turbine discs, manufactured between 1989 and 1999, for cracks in the rim cooling air holes, and, if necessary, replacement with serviceable parts. We are reducing the inspection schedules required by AD 2001-23-02, for the high risk discs which includes all models except for model RB211-22B-02 engines and adds the RB211-535E4-C due to manufacture at the same facility as the Trent 800 discs using the same tooling. Discs used in the model RB211-535 engines have a significantly higher HP turbine life than those used in the RB211-524 and operate in a harsher environment. Therefore, although the cracking of the rim cooling air holes will not affect the safe operation of the RB211-524 discs, the 535 discs are at higher risk of failure and the inspection intervals must be reduced. This AD retains the same inspection schedules, currently required for the model RB211-22B-02 engine, that were in AD 2001-23-02. The actions specified in this AD are intended to prevent possible disc failure, which could result in an uncontained engine failure and damage to the airplane.

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

The unsafe condition described previously is likely to exist or develop on other RR models RB211-535E4-37, RB211-535E4-B-37, RB211-535C-37, RB211-535E4-B-75, RB211-535E4-C, and RB211-22B-02 turbofan engines of the same type design. We are issuing this AD to prevent possible disc failure, which could result in an uncontained engine failure and damage to the airplane. This AD requires inspection of certain HP turbine discs, manufactured between 1989 and 1999, for cracks in the rim cooling air holes, and, if necessary, replacement with serviceable parts.

Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to make any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “AD Docket No. 2000-NE-62-AD” in the subject line of your comments. If you want us to acknowledge receipt of your mailed comments, send us a self-addressed, stamped postcard with the docket number written on it; we will date-stamp your postcard and mail it back to you. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it. If a person contacts us verbally, and that contact relates to a substantive part of this AD, we will summarize the contact and place the summary in the docket. We will consider all comments received by the closing date and may amend the AD in light of those comments.

You may examine the AD Docket (including any comments and service information), by appointment, between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. See ADDRESSES for the location.

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

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

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 2000-NE-62-AD” in your request.

On July 8, 2003, the Office of the Secretary published a final rule adding § 382.70 to 14 CFR Part 382, the Department's rule implementing the Air Carrier Access Act. Section 382.70 requires most certificated U.S. air carriers and foreign air carriers operating to and from the U.S. that conduct passenger-carrying service to do the following: (1) Record and categorize complaints that they receive alleging inadequate accessibility for the disabled or discrimination on the basis of disability according to the type of disability and nature of complaint; (2) prepare an annual summary report of the number of such complaints; (3) submit the report to the Department's Aviation Consumer Protection Division through the World Wide Web unless the carrier can demonstrate that it would suffer undue hardship if it were not permitted to submit the data via paper copies, computer disks, or e-mail; and (4) retain copies of the correspondence and records of action taken on the disability-related complaints for three years. 68 FR 40488. The effective date of this final rule was August 7, 2003. At that time, the Department had not obtained an OMB control number for its information collection request and had not established procedures for covered carriers to follow when submitting annual reports to the Department through the World Wide Web.

OMB regulations implementing provisions of the Paperwork Reduction Act of 1995 require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities and specify that no person is required to respond to an information collection unless it displays a valid OMB control number. In accordance with the Paperwork Reduction Act of 1995, OST has received OMB approval of the following ICR:

OMB Control Number: 2105-0551.

Title: Reporting Requirements for Disability-Related Complaints.

This information collection approval, which was granted by OMB on April 23, 2004, expires on April 30, 2007. Because OMB approved the information collection after publication of the July 8, 2003, final rule, we are now announcing the OMB approval and incorporating notice of this approval into the form that carriers will use through the World Wide Web to submit their annual report summarizing the disability-related complaints that they received during the prior calendar year. A copy of the form is included below and this notice will be sent to affected carriers for whom we have accurate contact information.

The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) to implement the understandings reached at, and subsequent to, the annual plenary meeting of the Australia Group (AG) that was held in Paris on June 7-10, 2004. The Australia Group is a multilateral forum, consisting of 38 participating countries, that maintains export controls on a list of chemicals, biological agents, and related equipment and technology that could be used in a chemical or biological weapons program. The AG periodically reviews items on its control list to enhance the effectiveness of participating governments' national controls and to achieve greater harmonization among these controls.

The understandings reached at the June 2004 plenary meeting included a decision to add five pathogens to the AG “List of Plant Pathogens for Export Controls.” This final rule implements these changes by amending the EAR to add three bacteria and two viruses to the AG list of plant pathogens described in Export Control Classification Number (ECCN) 1C354 on the Commerce Control List (CCL) (Supplement No. 1 to Part 774 of the EAR).

Specifically, this rule adds the following three bacteria to the AG-listed plant pathogens described in ECCN 1C354.a on the CCL: Xanthomonas oryzae pv. oryzae (syn. Pseudomonas campestris pv. oryzae ), Clavibacter michiganensis subspecies sepedonicus (syn. Corynebacterium michiganensis subspecies sepedonicum or Corynebacterium sepedonicum ), and Ralstonia solanacearum Races 2 and 3 (syn. Pseudomonas solanacearum Races 2 and 3 or Burkholderia solanacearum Races 2 and 3). In addition, this rule amends ECCN 1C354 by adding a new 1C354.c that controls the following two viruses: Potato Andean latent tymovirus and Potato spindle tuber viroid. These AG-listed bacteria and viruses, along with all other items controlled by ECCN 1C354, require a license for export or reexport to all destinations, worldwide.

Another understanding reached at the June 2004 AG plenary meeting was the removal of certain medical products containing conotoxins from the AG list of biological agents ( i.e. , human and zoonotic pathogens and toxins). This rule amends the EAR to implement this understanding by revising ECCN 1C991.c to control medical products, as defined in that ECCN, that contain conotoxins controlled by ECCN 1C351.d.3-1C991.c also controls medical products that contain botulinum toxins controlled by 1C351.d.1. This rule also makes a conforming change to ECCN 1C991.d to indicate that 1C991.d no longer controls medical products containing conotoxins. As a result of the changes made by this rule, medical products containing conotoxins no longer require a license to those countries indicated under CB Column 3 on the Commerce Country Chart (Supplement No. 1 to Part 738 of the EAR). However, such medical products continue to require a license to certain destinations for anti-terrorism (AT) reasons.

The understandings reached at the June 2004 plenary meeting also included the addition of a new licensing factor to the AG “Guidelines for Transfers of Sensitive Chemical or Biological Items” (Guidelines). This new factor requires that, when evaluating export license applications for AG-listed items, the export licensing authorities of AG participating countries must take into consideration the extent and effectiveness of the export control system in the importing country and in any intermediary country through which the items being exported or reexported will transit or be transshipped en route to the importing country. This rule revises the AG-related licensing policies in the EAR to conform with this new requirement by amending Section 742.2(b)(2) of the EAR to include the new licensing factor in the list of factors that BIS will consider when determining what action should be taken on license applications to export or reexport AG-listed items identified on the Commerce Control List (CCL).

In addition, this rule amends the EAR to add Estonia, Latvia, Lithuania, Malta, and Slovenia as the newest participating countries in the Australia Group (which now includes a total of 38 countries). Supplement No. 1 to Part 740 (Country Groups) is revised to add these five countries to Country Group A:3 (Australia Group) and Supplement No. 1 to Part 738 (Commerce Country Chart) is revised to remove the licensing requirements for these countries under CB Column 2, in conformance with the licensing policy that applies to other AG participating countries.

Finally, this rule amends the EAR to implement an AG intersessional decision, which was adopted after the June 2004 AG plenary meeting, by adding nine precursor chemicals to the list of AG-controlled precursor chemicals described in Export Control Classification Number (ECCN) 1C350 on the Commerce Control List (CCL). Specifically, this rule adds four precursor chemicals (Methylphosphonic acid; Diethyl methylphosphonate; N,N-dimethylamino-phosphoryl dichloride; and Methylphosphonothioic dichloride) to ECCN 1C350.b and one precursor chemical (Ethyldiethanolamine) to ECCN 1C350.c, which describe dual-use AG-listed precursor chemicals also identified as Schedule 2 chemicals and Schedule 3 chemicals, respectively, under the Chemical Weapons Convention (CWC). This rule also adds the following four precursor chemicals to the list of chemicals in ECCN 1C350.d that may be used as precursors to toxic chemical agents: Tri-isopropyl phosphite; O,O-diethyl phosphorothioate; O,O-diethyl phosphorodithioate; and Sodium hexafluorosilicate.

This final rule amends ECCNs 1A004 and 2B351 on the Commerce Control List (CCL) to clarify the scope of these ECCNs and to provide an accurate description of the items in each entry that are subject to the chemical/biological (CB) controls in the EAR that apply to the toxic gas monitoring systems included on the Australia Group (AG) “Control List of Dual-Use Chemical Manufacturing Facilities and Equipment and Related Technology.”

Specifically, this rule amends ECCN 1A004 on the CCL by revising the License Requirements section of the ECCN to add a chemical/biological (CB) reason for control paragraph, which indicates that CB controls apply to chemical detection systems and certain components therefor ( i.e. , dedicated detectors), in 1A004.c, that also have the technical characteristics described in ECCN 2B351.a. A license is required, for CB reasons, to export or reexport such systems and detectors to destinations indicated under CB Column 3 on the Commerce Country Chart (Supplement No. 1 to Part 738 of the EAR). These systems and detectors in 1A004.c also require a license for national security (NS) and anti-terrorism (AT) reasons to destinations indicated under NS Column 2 and AT Column 1, respectively, on the Commerce Country Chart.

In addition, this rule amends ECCN 2B351 by revising the heading of the entry to indicate that this ECCN does not control toxic gas monitoring systems and dedicated detectors therefor that are controlled under ECCN 1A004.c. This change, coupled with the addition of a CB Reason for Control paragraph in the License Requirements section of ECCN 1A004, means that toxic gas monitoring systems and dedicated detectors therefor that have the technical characteristics of both 1A004.c and 2B351.a are now controlled under ECCN 1A004 for NS, CB, and AT reasons. ECCN 2B351 controls toxic gas monitoring systems, and dedicated detectors therefor, that are not controlled by ECCN 1A004.c and that have the technical characteristics described in 2B351.a.

This rule also revises the Related Controls paragraph in the List of Items Controlled section of ECCN 2B351 to provide more specific references to the chemical detection systems that are controlled under related ECCNs 1A004 and 1A995. To further clarify the relationship between ECCNs 2B351 and 1A995, this rule revises the heading of ECCN 1A995 to indicate that 1A995 controls certain detection equipment not controlled under ECCN 2B351.

Finally, this rule revises Section 742.2(a)(3)(i) to include a reference to the chemical detection systems in ECCN 1A004.c that are controlled for CB reasons and require a license to destinations and countries indicated under CB Column 3 on the Commerce Country Chart.

This rule also makes a correction, in Country Group D of Supplement No. 1 to Part 740 (Country Groups), by removing the “X” under the column labeled “[D:3] Chemical & Biological” in the entry for Bulgaria. Bulgaria was admitted to the Australia Group in 2001. A final rule published by BIS on May 31, 2002 (67 FR 37977) added Bulgaria to Country Group A:3 (Australia Group) and removed the licensing requirements for Bulgaria, under CB Column 2 and CB Column 3 of the Commerce Country Chart (Supplement No. 1 to Part 738 of the EAR), in conformance with the licensing policy that applies to other AG participating countries. However, the rule did not remove Bulgaria from Country Group D:3 ( i.e. , countries of concern for chemical and biological reasons). This final rule corrects that oversight.

This rule amends ECCNs 1C355, 1C395, and 1C995 (which control certain chemical precursors and/or mixtures and test kits containing precursor chemicals) to restore the license requirements notes in each ECCN that were inadvertently removed by an interim final rule that BIS published in the Federal Register on July 30, 2004 (69 FR 46069). The July 30th rule revised the License Requirements section in ECCNs 1C355 and 1C395, by removing anti-terrorism (AT) controls for exports and reexports to Iraq, and also revised the language in the AT controls paragraph of ECCN 1C995, which retained AT controls on Iraq. These revisions to the License Requirements section in ECCNs 1C355, 1C395, and 1C995, which were intended to affect only the language in the anti-terrorism (AT) controls paragraphs, inadvertently omitted the text of the existing license requirements notes for these ECCNs.

This rule revises Supplement No. 2 to Part 745 of the EAR (titled “States Parties to the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction”) by adding the names of seven countries that recently have become States Parties to the CWC ( i.e. , Chad, Madagascar, Marshall Islands, Rwanda, Saint Kitts and Nevis, Sierra Leone, and Solomon Islands).

Exports and reexports that did not require a license or that were eligible for a License Exception prior to publication of this rule and for which this rule imposes a new license requirement or removes that License Exception availability may be made without a license or under that License Exception if the items being exported or reexported were on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier to a port of export pursuant to actual orders for export or reexport, on or before January 13, 2005, and exported or reexported January 28, 2005. Any such exports or reexports not meeting those deadlines require a license in accordance with this regulation.

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

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule contains a collection of information subject to the requirements of the PRA. This collection has been approved by OMB under Control Number 0694-0088 (Multi-Purpose Application), which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to David Rostker, Office of Management and Budget (OMB), by e-mail to David_Rostker@omb.eop.gov , or by fax to (202) 395-7285; and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553 or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable.

Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to Willard Fisher, Regulatory Policy Division, Bureau of Industry and Security, U.S. Department of Commerce, Room 2705, 14th Street and Pennsylvania Avenue, NW., Washington, DC 20230.

In Title 21 of the Code of Federal Regulations, Parts 170 to 199, revised as of April 1, 2004, on page 207, in § 176.170, alphabetically add the following entry to the table in paragraph (b)(2):

Pharmacia & Upjohn Co., 7000 Portage Rd., Kalamazoo, MI 49001-0199, has informed FDA of a change of sponsor's name and mailing address to Pharmacia & Upjohn Co., a Division of Pfizer, Inc., 235 East 42d St., New York, NY 10017. Accordingly, the agency is amending the regulations in 21 CFR 510.600(c) to reflect these changes.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

(2) * * *

The act (21 U.S.C. 301 et seq. ) established a comprehensive system for the regulation of medical devices intended for human use. Section 513 of the act (21 U.S.C. 360c) established three categories (classes) of devices, depending on the regulatory controls needed to provide reasonable assurance of their safety and effectiveness. The three categories of devices are class I (general controls), class II (special controls), and class III (premarket approval).

Under section 513 of the act, FDA refers to devices that were in commercial distribution before May 28, 1976 (the date of enactment of the 1976 amendments), as “preamendments devices.” FDA classifies these devices after the agency initiates the following procedures: (1) Receives a recommendation from a device classification panel (an FDA advisory committee); (2) publishes the panel's recommendation for comment, along with a proposed regulation classifying the device; and (3) publishes a final regulation classifying the device. FDA has classified most preamendments devices under these procedures. FDA refers to devices that were not in commercial distribution before May 28, 1976, as “postamendments devices.”

These devices are classified automatically by statute (section 513(f) of the act) into class III without any FDA rulemaking process. The devices remain in class III and require premarket approval, unless FDA initiates the following procedures: (1) Reclassifies the device into class I or II; (2) issues an order classifying the device into class I or II in accordance with section 513(f)(2) of the act; or (3) issues, under section 513(i) of the act, an order finding the device substantially equivalent to a predicate device that does not require premarket approval. As described in section 510(k) of the act (21 U.S.C. 360(k)) and under part 807 of the regulations (21 CFR part 807), FDA determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures. Through premarket notification procedures, a person may, without submission of a premarket approval application (PMA), market a preamendments device that has been classified into class III until FDA issues a final regulation under section 515(b) of the act (21 U.S.C. 360e(b)) requiring premarket approval.

Section 513(e) of the act addresses the reclassification of classified devices. This section provides that FDA may, by rulemaking, reclassify a device based on “new information.” Under section 513(e) of the act, FDA can initiate reclassification or an interested person can petition FDA to reclassify a preamendments device. The term “new information,” as used in section 513(e) of the act, includes information developed after the date of the device's original classification. This information could include a reevalution of the original data or information from the time of the device's original classification that was not presented, available, or developed at that time. (See, e.g., Holland Rantos v. United States Department of Health, Education, and Welfare , 587 F.2d 1173, 1174 n.1 (D.C. Cir. 1978); Upjohn v. Finch , 422 F.2d 944 (6th Cir. 1970); Bell v. Goddard , 366 F.2d 177 (7th Cir. 1966).)

Reevaluation of the data previously used by FDA is an appropriate basis for subsequent regulatory action where the reevaluation is made in light of newly available regulatory authority (see Bell v. Goddard , supra, 366 F.2d at 181; Ethicon , Inc. v. FDA , 762 F.Supp. 382, 389-91 (D.D.C. 1991)), or in light of changes in “medical science.” (See Upjohn v. Finch , supra, 422 F.2d at 951.) Whether data before FDA are past or new data, the “new information” to support reclassification under section 513(e) of the act must be “valid scientific evidence,” as defined in section 513(a)(3) of the act and 21 CFR 860.7(c)(2). (See, e.g., General Medical Co. v. FDA , 770 F.2d 214 (D.C. Cir. 1985); Contact Lens Assoc. v. FDA , 766 F.2d 592 (D.C. Cir.), cert. denied, 474 U.S. 1062 (1985).) FDA relies upon “valid scientific evidence” in the classification process to determine the level of regulation for devices. When reclassifying a device, FDA can only consider valid scientific evidence that is publicly available. Publicly available information excludes trade secret and confidential commercial information, e.g., the contents of a pending PMA. (See section 520(c) of the act (21 U.S.C. 360j(c).)

In the Federal Register of February 25, 2004 (69 FR 8600), FDA issued a proposed rule to change the names, revise the identifications, and reclassify the two devices from class III (premarket approval) into class II (special controls). FDA identified the draft guidance document entitled “Class II Special Controls Guidance Document: Vascular and Neurovascular Embolization Devices” as the proposed special control capable of providing of providing reasonable assurance of the safety and effectiveness for these devices. The vascular embolization device (previously the arterial embolization device) is intended to control hemorrhaging due to aneurysms, certain types of tumors, and arteriovenous malformations. The neurovascular embolization device (previously the artificial embolization device) is intended to permanently occlude blood flow to cerebral aneurysms and cerebral arteriovenous malformations. FDA invited interested persons to comment on the proposed rule by May 25, 2004. FDA received one comment. The comment was supportive of the proposed reclassification but made suggestions on the guidance document's content. FDA considered the suggestions and made appropriate revisions to the guidance document.

Based on the information discussed in the preamble to the proposed rule, FDA concludes that special controls, in conjunction with general controls, will provide reasonable assurance of the safety and effectiveness for these devices. Elsewhere in this issue of the Federal Register , FDA is announcing the availability of the guidance document entitled “Class II Special Controls Guidance Document: Vascular and Neurovascular Embolization Devices” as the guidance document that will serve as the special control for these devices. FDA believes that this special controls guidance document in addition to the general controls will provide reasonable assurance of the safety and effectiveness of these devices. Following the effective date of this rule, any firm submitting a 510(k) submission for these embolization devices will need to address the issues covered in the class II special controls guidance document. However, the firm need only show that its device meets the recommendations of the class II special controls guidance document or in some other way provides equivalent assurances of safety and effectiveness.

In addition to reclassifying these devices from class III into class II, FDA has revised the name and identification of 21 CFR parts 870.330 and 882.5950. FDA believes that renaming the arterial embolization device as the “vascular embolization device” and the artificial embolization device as the “neurovascular embolization device” more accurately reflect the intended uses of these devices.

Section 870.1(e) (21 CFR 870.1(e)), which was included in the proposed rule, was previously added by a final rule published in the Federal Register of October 28, 2003 (68 FR 61342). Section 882.1(e) (21 CFR 882.1(e)), which was included in the proposed rule, was previously added by a final rule published in the Federal Register of December 18, 2003 (68 FR 70435).

The agency has determined under 21 CFR 25.34(b) that this reclassification action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

FDA has examined the impacts of the final rule under Executive Order 12866, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et. seq. ). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this final rule is not a significant regulatory action under the Executive order.

The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Reclassification of these devices from class III into class II will relieve all manufacturers of the devices of the cost of eventually complying with the premarket approval requirements in section 515 of the act. Because reclassification will therefore reduce the regulatory costs associated with these devices and may permit small potential competitors to enter the marketplace by lowering their costs, the agency certifies that this final rule will not have a significant economic impact on a substantial number of small entities.

Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $110 million. FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.

FDA has analyzed the final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies 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. Accordingly, FDA has concluded that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.

This final rule does not contain information collection provisions that are subject to review by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

On February 12, 2004, the Commonwealth submitted a revision to its State Implementation Plan (SIP). The SIP revision consists of regulations to control VOC emissions from Municipal Solid Waste Landfills (MSWLs) in the Northern Virginia portion of the Metropolitan Washington, D.C. Ozone Nonattainment Area. The regulation establishes emission standards for MSWLs, as well as operational, monitoring and reporting requirements. This revision applies to the Northern Virginia portion of the Metropolitan Washington, D.C. Ozone Nonattainment Area, and is not intended to apply to any other portion of the Commonwealth.

The Commonwealth's February 12, 2004 submittal includes regulations that apply to MSWLs which commenced construction, reconstruction, or modification before May 30, 1991 in the Northern Virginia VOC Control Area (Arlington County, Alexandria City, Fairfax County, Fairfax City, Falls Church City, Loudon County, Manassas City, Manassas Park City, Prince William County, and Stafford County) as designated in 9 VAC 5-20-206. The landfill design capacity applicability criteria is 1.0 million megagrams (Mg) or more and 1.0 million cubic meters. The emission rate applicability criteria is emissions of nonmethane organic compound (NMOCs) greater than or equal to 23 Mg per year. The primary components of MSWL emissions are methane and NMOCs. VOCs are a component of NMOCs.

Landfills that have a design capacity greater than or equal to 1.0 million Mg and 1.0 million cubic meters are required to test and report their emission rate annually. If the NMOC emission rate exceeds 23 Mg per year, the MSWL is required to submit plans for and to install a collection system and control system for the subject emissions. The regulation establishes specifications for the collection and control systems and provide test methods and calculation procedures for estimating NMOC emission rates. In addition, the regulation provides compliance schedules and reporting requirements, and incorporates control and equipment maintenance and malfunction provisions.

In 1995 Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law,Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law.

EPA is approving the revision to the Commonwealth's SIP which establish regulations for the control of emission of volatile organic compound (VOC) emissions from municipal solid waste landfills (MSWLs) located in Northern Virginia portion of the Metropolitan Washington, D.C. Ozone Nonattainment Area (Northern Virginia). This revision applies only to the Northern Virginia Ozone Nonattainment Area, and is not intended to apply to any other part of the Commonwealth.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on February 28, 2005 without further notice unless EPA receives adverse comment by January 28, 2005. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have tribal implications because it will 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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. EPA 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 prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 28, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action, approving the Commonwealth of Virginia's regulation to require municipal solid waste landfills in Northern Virginia to control emissions of volatile organic compounds may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On April 16, 2004, the District of Columbia (the District) submitted revisions to its SIP, including a regulation to control emissions from portable fuel containers. The standards and requirements contained in the District's regulation for portable fuel containers and spouts are based on the Ozone Transport Commission (OTC) model rule. The OTC developed control measures into model rules for a number of source categories. The OTC portable fuel container model rule is based on the existing rules developed by the California Air Resources Board, which were analyzed and modified by the OTC workgroup to address VOC reduction needs in the Ozone Transport Region (OTR).

The April 16, 2004 SIP revisions include both new regulations and amendments to Title 20 of the District of Columbia Municipal Regulations (20 DCMR). The new regulations in Title 20 DCMR (Environment), Subtitle A: Air Quality, Chapter 7, Volatile Organic Compounds are:

(1) New Section 718—“Mobile Equipment Repair and Refinishing”.

(2) New Sections 719 through 734—“Consumer Products”.

(3) New Sections 735 through 741—“Portable Fuel Containers and Spouts”.

(4) New Sections 742 through 748—“Solvent Cleaning”.

(5) New Sections 749 through 754—“Architectural and Industrial Maintenance Coating”.

The April 16, 2004 submittal also includes new definitions that were added in section 799, a new section 307 to Chapter 3—to provide for a fee penalty pursuant to section 185 of the Act, and amendments to Chapters 1, 2, 6, 7, and 8 to satisfy the Act's requirements for severe ozone nonattainment areas pursuant to the Metropolitan Washington DC 1-hour ozone nonattainment area's reclassification on January 24, 2003 from serious to severe nonattainment.

On September 20, 2004, the District supplemented its April 16, 2004 submittal. This supplemental submittal provides copies of standards that are incorporated by reference in the Districts's new and amended regulations and a copy of the District's responses to comments it received during its rule adoption process. On November 26, 2004, the District submitted another supplemental revision to its April 16, 2004 submittal. This supplemental submittal consists of revised versions of the new VOC regulations. These are minor revisions to the regulations which clarify the standards that are incorporated by reference and correct cross-referencing and typographical errors. This action concerns only new Sections 735 through 741 (Portable Fuel Containers and Spouts) and revised section 799 containing the associated definitions for the Portable Fuel Containers and Spouts rule. The remaining SIP revisions submitted on April 16, 2004 and supplemented on September 20, 2004 and November 26, 2004 are the subjects of separate rulemaking actions.

The standards and requirements contained in the District's portable fuel container and spouts rule are based on the OTC model rule. The provisions of the portable fuel containers and spouts rule will apply to any person who sells, supplies, offers for sale, or manufactures a portable fuel container or spout for use in the District of Columbia. Affected persons must comply by January 1, 2005. The rule does not apply to any portable fuel container and spout manufactured for shipment, sale and use outside of the District of Columbia.

This regulation requires that by January 1, 2005, each portable fuel container and spout sold in the District of Columbia meets the following requirements: (1) Have an automatic shut-off and closure device; (2) contain one opening for both filling and pouring; (3) meet minimal fuel flow rate based on nominal capacity; (4) meet a permeation standard, and (5) have a manufacturer's warranty against defects. The District's regulation includes standards, testing procedures, exemptions, recordkeeping requirements, and administrative requirements.

EPA is approving a revision to the District of Columbia SIP to establish a regulation for the control of VOC emissions from portable fuel containers and spouts. Implementation of this VOC control measure strengthens the District of Columbia SIP, and results in emission reductions in the District of Columbia. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on February 28, 2005 without further notice unless EPA receives adverse comment by January 28, 2005. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have tribal implications because it will 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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. EPA 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 prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 28, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action to approve the District of Columbia's portable fuel containers and spouts rule may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

I.

On April 16, 2004, the District of Columbia (the District) submitted revisions to its SIP, including a regulation to control emissions from solvent cleaning operations. The standards and requirements contained in the District's regulation for solvent cleaning are based on the Ozone Transport Commission (OTC) model rule. The OTC developed control measures into model rules for a number of source categories. The OTC solvent cleaning model rule is based on the existing rules developed by the California Air Resources Board, which were analyzed and modified by the OTC workgroup to address VOC reduction needs in the Ozone Transport Region (OTR).

The District's April 16, 2004 SIP revision includes both new regulations and amendments to Title 20 of the District of Columbia Municipal Regulations (20 DCMR). The new regulations in Title 20 DCMR (Environment), Subtitle A: Air Quality, Chapter 7, Volatile Organic Compounds are:

(1) New Section 718—“Mobile Equipment Repair and Refinishing”.

(2) New Sections 719 through 734—“Consumer Product”.

(3) New Sections 735 through 741—“Portable Fuel Containers and Spouts”.

(4) New Sections 742 through 748—“Solvent Cleaning”.

(5) New Sections 749 through 754—“Architectural and Industrial Maintenance Coating”.

The April 16, 2004 submittal also includes new definitions that were added in section 799, a new section 307 to Chapter 3—to provide for a fee penalty pursuant to section 185 of the Act, and amendments to Chapters 1, 2, 6, 7, and 8 to satisfy the Act's requirements for severe ozone nonattainment areas pursuant to the Metropolitan Washington, DC 1-hour ozone nonattainment area's reclassification on January 24, 2003 from serious to severe nonattainment.

On September 20, 2004, the District supplemented its April 16, 2004 submittal. This supplemental submittal provides copies of standards that are incorporated by reference in the Districts's new and amended regulations and a copy of the District's responses to comments it received during its rule adoption process. On November 26, 2004, the District submitted another supplemental revision to its April 16, 2004 submittal. This supplemental submittal consists of revised versions of the new VOC regulations. These are minor revisions to the regulations which clarify the standards that are incorporated by reference and correct cross-referencing and typographical errors. This action concerns only sections 742 through 748—Solvent Cleaning and revised section 799 containing the associated definitions for the solvent cleaning regulation. The remaining SIP revisions submitted on April 16, 2004 and supplemented on September 20, 2004 and November 26, 2004 are the subjects of separate rulemaking actions.

The District's solvent cleaning rule (sections 742 through 748) applies to any person who sells, supplies, offers for sale, or manufactures any solvent on or after January 1, 2005 for use in the District of Columbia. The regulation applies to all cold cleaning machines, batch vapor cleaning machines, in-line vapor cleaning machines, and airless and air-tight cleaning machines that process metal parts. The District's regulations for solvent cleaning include definitions, emission standards, equipment requirements, operating procedures, compliance requirements, and monitoring and recordkeeping requirements.

EPA is approving a revision to the District of Columbia SIP to establish a regulation for the control of VOC emissions from solvent cleaning. Implementation of this VOC control measure strengthens the SIP, and results in emission reductions in the District of Columbia. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on February 28, 2005 without further notice unless EPA receives adverse comment by January 28, 2005. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have tribal implications because it will 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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. EPA 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 prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 28, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action to approve the District of Columbia's solvent cleaning regulations may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2))

Throughout this document, “we,” “us,” and “our” refer to EPA. This supplementary information is organized as follows.

EPA is approving a revision to Virginia's ozone SIP. The SIP revision requires major stationary sources of VOC and NO X in the Virginia portion of the Metropolitan Washington D.C. Severe Ozone Nonattainment Area (Area) to pay a fee to the Commonwealth if the Area fails to attain the national ambient air quality standard (NAAQS) for ozone by November 15, 2005. The fee must be paid beginning in 2006 and in each calendar year thereafter, until the Area is redesignated to attainment for ozone. The payment is due by August 31 of each year.

We are approving this rule because it is consistent with the requirements of the Clean Air Act (Act).

EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipates no adverse comment, since no comments were received during the state's regulatory process. However, in the “Proposed Rules” section of today's Federal Register , we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on February 28, 2005 without further notice unless EPA receives adverse comment by January 28, 2005. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

This rule applies to major stationary VOC and NO X sources located in the Virginia portion of the Metropolitan Washington DC Severe Ozone Nonattainment Area. At this time, the counties of Arlington, Fairfax, Loudon, and Prince William; and the cities of Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park in Virginia are part of the Area, and are subject to this rule. Any owner of a major VOC or NO X stationary source, which is a stationary source that emits or has the potential to emit 25 tons or more per year of VOC or NO X , within the severe ozone nonattainment area is subject to this rule.

The fee is initially set at $5,000 per ton of VOC or NO X emitted by the source during the previous calendar year in excess of 80% of the baseline amount. The fee is to be adjusted annually, beginning in 1991, by the percentage by which the consumer price index has been adjusted. The baseline is the lower of the source's actual or allowable VOC or NO X emissions during calendar year 2005. Virginia may calculate the baseline amount using a period of more than one year, provided the determination is consistent with Federal requirements.

Under sections 182(d)(3), 182(e), and 185 of the Clean Air Act (the Act), states are required to adopt an excess emissions fee regulation for ozone nonattainment areas classified as severe or extreme. This SIP revision requires major stationary sources of VOC in the nonattainment area to pay a fee to the state if the area fails to attain the standard by the attainment date set forth in the Act. In Virginia, the Northern Virginia area that is part of the Metropolitan Washington, DC ozone nonattainment area is classified as severe.

Section 182(f) of the Act requires states to apply the same requirements to major stationary sources of oxides of nitrogen (NO X ) as are applied to major stationary sources of VOC.

As per section 185 of the Clean Air Act, the Commonwealth's SIP revision provides for an exception of the fee during any year that is treated as an extension year under section 181(a)(5) of the Clean Air Act.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec.10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,'since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts* * *” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have tribal implications because it will 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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. EPA 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 prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 28, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This approval of the Commonwealth of Virginia's Excess VOC and NOx Emission Fee SIP revision, as required under Section 185 and 182(f) of the Clean Air Act, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

This is a summary of the Commission's Report and Order (Order) in WC Docket No. 04-141, adopted on November 9, 2004, and released on November 12, 2004. The full text of this document is available on the Commission's Web site Electronic Comment Filing System and for public inspection Monday through Thursday from 8 a.m. to 4:30 p.m. and Friday from 8 a.m. to 11:30 a.m. in the FCC Reference Center, Room CY-A257, 445 Twelfth Street, SW., Washington, DC 20554. Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365. The full text of the NPRM may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Room CY-B402, 445 Twelfth Street, SW., Washington, DC 20554, telephone (202) 488-5300, facsimile (202) 488-5563, or through www.bcpiweb.com .

This Order contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to OMB for review under section 3507(d) of the PRA.

1. In this Order, we adopt rules and a standardized form to improve our Form 477 local competition and broadband data gathering program, including extending the program for five years beyond its currently designated sunset in March 2005, eliminating existing reporting thresholds, and gathering more granular data from service providers. The information collected in the Form 477 program helps the Commission and the public understand the extent of local telephone competition and broadband deployment, which is important to the nation's economic, educational, and social well-being. The improvements we adopt here, which include some but not all of the modifications proposed in our recent Data Collection NPRM , are necessary to ensure that the Commission can continue to effectively evaluate broadband and local competition developments as they affect all Americans. At the same time, we have acted to minimize, wherever possible, the administrative burdens imposed on reporting entities by the modified Form 477 program.

2. The Data Gathering Order established a reporting program (using the FCC Form 477) to collect basic information about two critical areas of the communications industry: the deployment of broadband services and the development of local telephone service competition. The Commission concluded that collecting this information would materially improve its ability to develop, evaluate, and revise policy in these rapidly changing areas and provide valuable benchmarks for Congress, the Commission, other policy makers, and consumers. Since adoption of the Form 477 in 2000, broadband service providers and local telephone service providers have reported data ten times, and we have issued regular reports based in significant part on this information. In the Data Gathering Order , the Commission adopted a sunset provision pursuant to which the collection program terminates after five years ( i.e. , in March 2005) unless the Commission acts to extend it.

3. Form 477 includes separate sections on broadband deployment, local telephone service competition, and mobile telephone service provision. In the Data Gathering Order , the Commission required entities to report only when they meet or exceed defined reporting thresholds, and, then, to complete only those portions of the form for which they meet or exceed the reporting thresholds. The Commission required entities that meet a threshold to file data on a state-by-state basis. The Commission also required facilities-based providers of broadband connections and local exchange carriers (LECs) to report lists of the Zip Codes in which they serve end users, for each state for which they complete a form. In the case of broadband connections, reporting entities include incumbent and competitive LECs, cable companies, operators of terrestrial and satellite wireless facilities, municipalities, and any other facilities-based provider of broadband connections to end users.

4. In the Data Collection NPRM , we proposed to: (1) Extend the data collection for an additional five years; (2) modify Form 477 to collect more-detailed information about broadband connection speeds and the localized deployment of broadband technologies; (3) collect information about subscribership to bundled local and interstate long distance telephone services; and (4) eliminate or revise those local telephone service questions that elicit imprecise or infrequently used information. We also invited comment on whether we should eliminate or lower the current reporting thresholds; modify our policies for publishing or sharing Form 477 data; require filers to categorize broadband connections according to the information transfer rates observed by end users; and require filers to report numbers of broadband connections in service by Zip Code or technology, or, alternatively, by Zip Code, technology, and speed.

5. We have considered the record of this proceeding, including comment about reporting burdens associated with current Form 477 reporting requirements, potential burdens associated with additional reporting requirements proposed or otherwise noticed for discussion in the Data Collection NPRM , and potential burdens associated with alternatives suggested by the parties, as well as our experience with the Form 477 to date. As discussed below, in this Order we: (1) Extend the Form 477 program for five years beyond its currently designated sunset in March 2005; (2) eliminate reporting thresholds; and (3) adopt various modifications to the Form 477.

6. Five-Year Extension. We conclude that it is reasonable to extend the Form 477 program for five years beyond the current March 2005 sunset given our statutory obligations to study and report on the availability of broadband capability, as well as our continuing obligations to promote telecommunications services competition generally. We conclude that extending the Form 477 program for an additional five years with the modifications discussed below will materially improve the Commission's ability to develop, evaluate, and revise policy in the rapidly changing areas of broadband deployment and local telephone competition, and provide valuable benchmarks for Congress, the Commission, other policy makers, and consumers. As discussed in more detail in the following sections and in the Final Regulatory Flexibility Analysis attached to this Order, we also conclude that extending the Form 477, as modified, will not impose an undue burden on the entities that are required to report. In this regard, we have taken or will take the following steps to reduce associated burdens: (1) We decline to adopt certain modifications to the Form 477 proposed in the Data Collection NPRM , including the proposed requirement that filers categorize broadband connections according to the information transfer rate (speed) actually observed by the end user; (2) we eliminate various questions from the wireline local telephone section of the form; (3) we eliminate the requirement that filers seeking confidential treatment of Form 477 data prepare and submit a separate, redacted Form 477; (4) responding to comments submitted by the Office of Advocacy of the Small Business Administration, we will publish a Small Entity Compliance Guide to provide a set of user-friendly explanations to direct small entities to those sections of the Form 477 relevant to their operations.

7. We reject calls for extending the Form 477 program for less than five years because our statutory responsibilities to study and report on broadband deployment and encourage the development of local telephone service competition are on-going. We find that a five-year extension is prudent given continuing and rapidly-evolving developments in broadband and local telephone services markets. Reviewing the adequacy of our form at regular intervals is essential to ensure that it is, in fact, capturing the most relevant and critical information given the dynamic nature of these markets. Accordingly, we affirm our analysis and conclusion in the Data Gathering Order , namely, that a five-year program best balances our continuing need to understand evolving market developments against our desire to minimize costs and ensure that adopted regulation does not outlive its usefulness. Moreover, we disagree with comments that the availability of alternative data sources is an adequate substitute for the Form 477. In our experience, most if not all commercially available studies of residential services adoption derive their data in significant part from the Commission's Form 477-based public reports. And, no nationwide studies of broadband deployment or of local telephone competition are based on better sources of data for rural and other hard-to-serve areas. Voluntary membership surveys conducted by commenters NTCA and OPASTCO, and also by the National Exchange Carrier Association (NECA), provide welcome evidence that the incumbent LECs that respond to the surveys are deploying broadband services to substantial—and increasing— percentages of their customer base. Entities that choose not to participate in these voluntary surveys may have a different experience. By contrast, surveys such as those about Internet use conducted by the Pew Internet & American Life Project, and the Census Bureau's Current Population Survey, use random samples that are constructed to avoid overlooking particular population groups. To obtain statistically significant results for particular rural populations, however, a large (and therefore expensive) random sample is required. For example, because the random sample (of about 57,000 households) for the Current Population Survey does not over-sample households located in rural areas in particular states, the Department of Commerce was able to discuss nationwide differences between rural and urban households in its report, A Nation Online: How Americans Are Expanding Their Use of the Internet (February 2002), but was not able to discuss such differences within particular states. Similarly, the Pew Internet & American Life Project has compared only nationwide differences in Internet use by residents of rural and urban areas on the basis of random samples of about 20,000 Americans age 18 and older.

8. Elimination of Reporting Thresholds . We also modify the Form 477 program to require all facilities-based providers of broadband connections to end users to report broadband data, all local exchange carriers to report local telephone service data, and all mobile telephone carriers to report mobile telephone data. In reaching this conclusion, we note that comments from state agencies, and from some service providers, generally supported eliminating, or substantially reducing, the reporting thresholds. As we stated in the Data Collection NPRM , we believe that the current data collection misses several hundred small facilities-based broadband providers, e.g. , rural incumbent LECs, wireless Internet service providers, and municipalities. Moreover, we agree with those commenters who argue that it is important to capture a more accurate picture of broadband deployment and local telephone competition in rural, sparsely populated areas, which are more likely to be served by small carriers.

9. In reaching our conclusion, we recognize that in the Data Gathering Order the Commission concluded that a reporting threshold for broadband and local competition appropriately balanced its need for an inclusive reporting requirement against the burdens imposed on small entities. At the same time, the Commission stated “[we] are committed to revising these thresholds (either upward or downward) should it be necessary based either on our experience or on changes in the relevant markets.” And, the Commission pointed out that “[by] excluding any providers we necessarily face the possibility of understating the amount of competitive activity and broadband deployment in smaller, rural areas.” Based on our experience with the Form 477 over the past nearly five years, we now conclude that the current thresholds render impossible a thorough understanding of the dynamics of broadband deployment in states with rural and/or underserved areas. We find that lowering the existing thresholds to some other, more or less arbitrary, number means that certain of these areas will continue to elude our scrutiny. Such a result seems inimical to Congress's charge, in section 706 of the Act, that we make determinations on the “availability of advanced telecommunications capability to all Americans.” Thus, we believe that are better equipped to make sound policy determinations affecting the broadband market to the extent we have the most accurate and comprehensive data possible upon which to base our decisions.

10. Similarly, based on our extensive experience in collection local competition data, we now conclude that we must gather an appropriate amount of information about the status of local competition from all areas of the country. We believe that the current 10,000 line reporting threshold significantly understates the amount of local competition in states that include rural and/or other underserved areas. As a result, our understanding of rural and underserved market development is not as precise as it could be. Having more accurate information about competition in rural markets will assist the Commission in its review of portability and eligibility policies. Merely lowering existing thresholds to some arbitrary number does not overcome this problem or mitigate its effects.

11. Moreover, this problem predictably will only get worse as networks continue to evolve, i.e. , as network architectures reflect the continued convergence of traditional telephony and broadband. Given such convergence, which was only at its initial stages when we adopted the Data Gathering Order almost five years ago, it becomes essential that our broadband and local competition data collection methodologies are equally comprehensive. We therefore conclude that we should collect local telephone service information on the same comprehensive basis upon which we collect information about broadband connections.

12. We conclude that the benefits to the policy making process that derive from the additional data outweigh the reporting burdens on new Form 477 filers ( i.e. , entities that would not be required to file Form 477 if we retained the current mandatory reporting thresholds). As we noted in the Data Collection NPRM , the small facilities-based broadband providers that currently file Form 477 on a voluntary basis find that only a few questions apply to their situations. Moreover, among the smaller entities that are currently required to report broadband data on Form 477 ( i.e. , entities that report between 250 and 499 broadband connections in a state), 68 percent reported connections in only one technology category, and 98 percent reported connections in two or fewer technology categories. Accordingly, we conclude that the broadband reporting requirements we adopt here are not overly burdensome for small providers. Similarly, among the smaller incumbent LECs that are currently required to report wireline local telephone data ( i.e. , carriers that report between 10,000 and 24,999 voice-grade equivalent local exchange lines), 95 percent report only one of the five rows of information that will appear in the modified form. Therefore, we conclude that the local telephone reporting requirements we adopt here are not overly burdensome for small carriers. We also note that, for many new incumbent LEC filers, some answers ( e.g. , percent of local exchange lines provided over the filer's own local loops) are unlikely to change from filing to filing, and that, more generally, filers will be able to complete their filings more efficiently as they gain experience with the data collection. We conclude that it is not possible to develop an adequately comprehensive picture of broadband deployment and local telephone competition in the United States without including information about the situation in rural, sparsely populated areas. As NECA emphasizes, the more than 1,100 rural carriers that belong to NECA's Traffic Sensitive pool generally serve sparse populations over wide geographical areas—frequently fewer than 10 customers per square mile. Therefore, we conclude that the benefits to policy making of developing a more accurate picture of broadband deployment and local telephone competition—including in rural, sparsely populated areas—outweigh the costs of reporting that we impose on carriers that have previously been exempt from filing Form 477.

13. We recognize, however, the particular concerns about reporting burden that have been raised by smaller incumbent LECs, and we consequently decide not to pursue at this time certain options about which we requested comment in the Data Collection NPRM . In particular, we decide not to require filers to determine what information transfer rate an end user actually observes on his or her broadband connection, and, as discussed below, we also decide to eliminate from the form several questions about local telephone service.

14. Broadband Data. Based on our review of the record in this proceeding and on our experience with the Form 477, we adopt a number of modifications to the broadband data collected by the Form 477. We conclude that these modifications are necessary to ensure that we have a full picture of developing broadband deployment trends nationwide. First, we modify the Form 477 to require filers to determine what percentage of their broadband or high-speed connections are faster than 200 kbps in both directions, and to categorize these connections into five “speed tiers” based on the information transfer rate in the connection's faster direction: (1) Greater than 200 kbps and less than 2.5 megabits per second (mbps); (2) greater than or equal to 2.5 mbps and less than 10 mbps; (3) greater than or equal to 10 mbps and less than 25 mbps; (4) greater than or equal to 25 mbps and less than 100 mbps; and (5) greater than or equal to 100 mbps. Some comments in this proceeding assert that collecting information about connections with very high speeds ( e.g. , above 10 mbps) would be irrelevant ( e.g. , because connections operating at such speeds are now not generally available to consumers in the United States). As we noted in the Fourth 706 Report , however, we have observed some service providers offering faster and faster connections, perhaps because they are able to do so at relatively little cost, and thereby differentiate their products from competitors' slower services. As these faster services are introduced, it is vitally important that we understand the evolving dynamics of higher speed broadband availability in order to fulfill our statutory responsibilities to report about whether broadband capability is available to all Americans.

15. We also modify Form 477 to require filers to report symmetric xDSL broadband connections separately from traditional wireline (such as T-carrier) connections, and to separately report broadband connections delivered over electric power lines. Thus, we require filers to report broadband connections in the following technology categories: asymmetric xDSL, symmetric xDSL, traditional wireline (such as T-carrier), cable modem, optical carrier (fiber to the end user), satellite, terrestrial fixed wireless, terrestrial mobile wireless, electric power line, or “all other.” In contrast to asymmetric xDSL, symmetric xDSL is well-suited to applications, such as videoconferencing, that require high-speed capacity in the upstream path as well as the downstream path. When Form 477 was implemented, it was the Commission's understanding that symmetric xDSL service was being deployed and marketed principally to businesses, as a substitute for the more traditional T-carrier services, and the Commission therefore specified that symmetric xDSL connections should be reported along with connections over “other traditional wireline” technologies. We now observe that some symmetric xDSL services are being offered to residential end users. For example, while we note that information about a broad range of symmetric high-speed xDSL services appears in marketing materials, such as Web pages, that are directed to business customers, we also observe that some relatively low priced symmetric xDSL connections are being advertised on Web pages identified specifically for residential customers. We therefore disagree with comments that it is unnecessary or meaningless to distinguish symmetric xDSL services from traditional wireline services in the data collection. We also decide to establish electric power line as a separate broadband technology category to enable us to monitor its deployment specifically.

16. Additionally, we modify Form 477 to require incumbent LECs that report DSL connections (or whose affiliates report DSL connections) to report the extent to which DSL connections are available to the residential end user premises to which the incumbent LEC offers local telephone service. Similarly, we modify Form 477 to require cable system operators that report cable modem connections (or whose affiliates report cable modem connections) to report the extent to which cable modem connections are available to the residential end user premises to which the cable system offers cable television service. We adopt these requirements in order to obtain state-level “availability” estimates from the major providers of the broadband services with the greatest residential acceptance in the United States to date, to better enable us to monitor the extent to which these broadband platforms are available to all Americans, and to ascertain with more precision the pattern of competition between these platforms.

17. In response to commenter concerns, we modify the availability metric that we proposed in the Data Collection NPRM to conform more closely with the system-wide metrics with which cable system operators are generally familiar. By relying as much as possible on such industry practices, we believe that we can collect, in a minimally burdensome manner, more-detailed information about the extent to which the widely deployed and widely utilized cable modem and DSL infrastructures are available to potential residential end users in a minimally burdensome manner. We note that residential broadband connections in service in the United States are primarily cable modem or DSL connections. Because of the relatively small numbers of residential subscribers to broadband services that are provided by means of satellite, fixed wireless, mobile wireless, optical carrier, and other technologies, at this time, we do not require providers of those services to report availability estimates. We may, however, propose to do so in the future if circumstances warrant.

18. We also modify Form 477 to require all filers that report information about wired or fixed wireless broadband connections to end user locations to report technology-specific lists of the Zip Codes in which at least one such connection is in service . Specifically, we require separate such lists for connections provided by mean of asymmetric xDSL, symmetric xDSL, cable modem, optical carrier (fiber to the end user), satellite, terrestrial fixed wireless, electric power line, and (as a single category) other wireline technologies. With respect to mobile wireless broadband services, which are now beginning to be deployed commercially, we note that the end user of such a service must be within a broadband service coverage area to make use of the service, but may move around within and among coverage areas. Particularly during the initial stages of commercial deployment, moreover, there may be a mismatch between the billing addresses of some early-adopter subscribers, such as persons who travel frequently on business, and the physical locations where the subscriber can actually use the service. Because of the particular characteristics of mobile services, some have argued that CMRS providers should be completely exempt from reporting broadband data on Form 477. We disagree. Rather, we acknowledge that mobile broadband services differ in particular respects from fixed broadband services and make provision for such differences in this data collection. In particular, we specify that mobile wireless service providers will report the number of subscribers to their mobile wireless broadband services. And, we require, at this time, that filers reporting mobile wireless broadband subscribers on Form 477 also provide a list of Zip Codes that best represent the filer's mobile wireless broadband coverage areas. We observe mobile wireless broadband service providers using Zip Code-based information in their own marketing initiatives, and we conclude that providing such information on Form 477 will not be overly burdensome.

19. Finally, we note that various commenters argued that the Commission did not adequately identify and justify the need for the broadband (and local competition) reporting modifications proposed in the Data Collection NPRM . We disagree. In the Data Collection NPRM , we carefully noted justifications for gathering information about broadband deployment and local telephone competition in the Form 477. We also stated that additional information “would be extremely useful” in identifying and tracking relevant developments, particularly in rural areas. Moreover, in the context of broadband deployment, we specifically noted “the emergence of competing platforms to deliver high-speed services, increasing data speeds of services offered, and a steady improvement in mass-market acceptance of services.” Our discussion of changes to the current Form 477 was clearly tied to these observations, as well as to the Commission's experience with the Form 477. We have carefully reviewed the record developed in response to these proposals, and find that it supports extending the Form 477 program with the modifications adopted in this Order. We also draw attention to the Commission's statements in its most recent Report to Congress, pursuant to section 706 of the 1996 Act, regarding the availability of broadband services in the United States. In that Report, the Commission affirmed the need to track broadband deployment in sparsely served, rural areas, as well as the need to better track the developing consumer appetite for broadband services at speeds well in excess of the Commission's current minimum 200 kbps speed. We find that all of the Form 477 modifications proposed in the Data Collection NPRM and adopted here derive from these two basic concerns, as well as from regulatory mandates imposed by section 706 of the Telecommunications Act of 1996 and, more generally, by the Communications Act.

20. Local Telephone Data. Based on our review of the record in this proceeding and our experience with the Form 477, we adopt far fewer modifications to the local telephone data reported on the form. In fact, we adopt only two. First, we modify Form 477 to require LECs to report the extent to which they are also the end user's default interstate long distance carrier. We disagree with those commenters that argued such information is not relevant for monitoring local telephone service competition. As we noted in the Data Collection NPRM , consumers increasingly can choose among telephone service offerings that permit both local and long distance calling, often for a single price. Indeed, it appears to us that offering combinations of services at attractive prices appears to be an important, rapidly evolving way for providers to compete by providing potential end users more, and higher value, choices. It is important for us to more precisely understand how such bundling affects the overall development of local telephone service competition.

21. Second, we modify Form 477 to require LECs to report their use of UNE loops to serve their own end-user customers separately from their use of UNE-Platform to do so. Because the current form does not require this distinction to be made, we are not able at this time to compare data and thereby evaluate, for accuracy and completeness, the information reported to us about the numbers of UNE loops and UNE-Platform provided to unaffiliated carriers. Therefore, we modify the form to require LECs to report the extent to which they provision voice-grade equivalent lines to their own local telephone service customers over their own local loop facilities (or the fixed wireless last-mile equivalent), over UNE loops obtained from an unaffiliated carrier without switching, over UNE-Platform, or by reselling another carrier's services (such as Centrex or special access) or facilities obtained under commercial arrangements.

22. Finally, to simplify the form and thus minimize reporting burdens where possible, we eliminate from the Form 477 several questions about local telephone service that, in our experience, have confused filers or otherwise have provided information of limited usefulness. Specifically, we eliminate current requirements that force LECs to: (1) Estimate the types of customers unaffiliated carriers serve by means of the lines and UNE arrangements the LEC provides; (2) report the extent to which they use local loop facilities they own and UNE loops they obtain from another carrier to provision the services the LEC provides to unaffiliated carriers for resale; and (3) report information related to “collocation” arrangements with unaffiliated carriers.

23. We also eliminate the current requirement that LECs report on the Form 477 information about special access circuits that they provide to unaffiliated carriers or to end users. (Filers' use of channelized special access circuits to provide local exchange service to their own end user customers will continue to be reflected in the Form 477 data, however.) The current Form 477 collects information about the number of special access circuits provided to unaffiliated carriers or end users irrespective of the capacity of those circuits ( e.g. , DS1, DS3, OCn), which seriously limits the usefulness of these data in evaluating the extent of competition. We may, however, consider collecting more precise information about special access services in the future if circumstances warrant. Finally, we decide not to adopt the proposal in the Data Collection NPRM to require mobile telephone carriers to report the extent to which they are the default interstate long distance carrier for the mobile telephone subscribers they report.

24. Other Issues. We will retain our current policies and procedures regarding the confidential treatment of submitted Form 477 data, including the exclusive use of aggregated data in our published reports. Moreover, we have decided not to adopt a different approach with regard to historical data. Almost all commenters supported our current data protection policies, and most argued that even historical data remains competitively sensitive. We believe our current policies and procedures afford more than adequate protection to any entity submitting competitively sensitive information in the Form 477. We will continue, however, our current practice of publishing most of the local telephone information reported by the Bell operating companies after consultation with the individual companies.

25. Because filers submitting Form 477 data routinely assert that some or all such data are competitively sensitive, we see no need to continue to require them to provide a separate, redacted file. Accordingly, we eliminate that requirement. We expect that this action by itself will substantially reduce the reporting burden imposed on a large number of individual filers.

26. We also decide to retain our current policies and procedures regarding the sharing of Form 477 data with state commissions. Such data sharing only occurs where state entities formally declare to us that they are willing and able to treat submitted information subject to restrictions on data release that are at least as stringent as federal requirements. Commenters generally do not oppose continuing data-sharing arrangements on these terms.

27. Upon careful consideration of the record in this proceeding, we decline to adopt certain modifications proposed or discussed in the Data Collection NPRM . We decide not to modify Form 477 to require filers to categorize broadband connections according to information transfer rate (speed) that is actually observed by the end user of the broadband connection. The record of this proceeding does not identify a methodology or practice that currently could be applied, consistently and by all types of broadband filers, to measure the information transfer rates actually observed by end users. Moreover, we expect broadband service providers to be mindful of general consumer protection law and to advertise their services with sufficient accuracy to enable end users to select the offering—as distinguished by “speed tier” and other features—that best fits the end user's needs and budget.

28. We also decide not to require filers to report the number of broadband connections, by technology, in particular Zip Codes, or to report, for each Zip Code, any information about the number of connections provided in various “speed tiers.” Rather, by requiring filers to report technology-specific lists of broadband Zip Codes in the modified Form 477—and removing the reporting threshold to require all facilities-based broadband providers to report—we believe we will substantially enhance our ability to monitor the deployment of established and emerging broadband platforms. Moreover, the comments of several broadband providers asserted that developing the software and systems necessary to generate such Zip Code-level data would impose a large burden on the filer's financial and personnel resources, or would require a number of months to implement. Accordingly, we decline to require broadband providers to report this level of detail at this time. We continue to recognize, however, that the presence of reported subscribers in a Zip Code does not necessarily mean service is available throughout the Zip Code, and we may revisit our decisions about reporting detailed Zip Code-level data in the future. To this end, we direct the Wireline Competition Bureau to assess more fully the extent to which our Zip Code data adequately reflect the availability of service throughout a Zip Code and to report its conclusions in the next section 706 report.

29. Similarly, we also decide not to adopt at this time any additional requirements that were not specifically proposed in the Data Collection NPRM . For example, we decide not to require broadband providers to report information about the prices at which they offer broadband services to end users in particular Zip Codes, to require mobile telephone carriers to estimate the percentage of wireless subscribers that use their service as a replacement for traditional landline service, or to require entities to report data according to city boundaries. We are not convinced at this time that potential benefits derived from collecting these additional data outweigh their associated costs.

1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Data Collection NPRM (Notice). The Commission sought written public comment on the proposals in the Notice, including comment on the IRFA. The comments received are discussed below. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

2. The Commission initiated this rulemaking and made specific proposals to improve its Form 477 local competition and broadband data-gathering program and to extend the program for five years beyond its currently designated sunset in March 2005. The Commission adopted the Form 477 in the Spring of 2000 to help the Commission and the public understand the extent of local telephone service competition and broadband services deployment, which is important to the nation's economic, educational, and social well-being. The decisions reached in this Order will further that goal while minimizing burdens on marketplace competitors and innovators, as well as small businesses.

3. In the IRFA, we stated that we would seek to minimize the burden imposed on smaller entities by establishing requirements for reporting that balanced the needs of the Commission to receive data on the development of local competition and deployment of broadband against the burden such reporting places on smaller entities. In response to the Notice, the Commission received comments from 14 parties and reply comments from 7 parties. In addition, the Office of Advocacy, U.S. Small Business Administration (SBA), Verizon and the Vermont Public Service Department (VPSD) made ex parte presentations. Among those parties, only the SBA, the National Cable Television Association (NCTA), the National Telecommunications Cooperative Association (NTCA), and the Organization for the Promotion and Advancement of Small Telecommunications Companies (OPASTCO) commented specifically on the IRFA. We note that many other commenters raised issues about the proposed rules and we encourage readers of this FRFA to consult the complete text of this Order, which describes in detail our analysis of commenter proposals.

4. In its ex parte presentation regarding the IRFA, the VPSD made recommendations to simplify the expanded Form 477 proposed in the Notice. In its ex parte presentation, SBA recommends that the Commission consider less burdensome alternatives for small carriers, such as simplifying the proposed Form 477 or establishing a “short form or Form 477-EZ” for small carriers previously exempt from reporting. OPASTCO stated that the Commission's estimated time to complete the proposed Form 477 of 15 hours is understated, and that the real number is 23 to 28 hours. NTCA agreed with OPASTCO and urged the Commission to develop a new Form 477 that will reduce the amount of information required from small carriers and take 30 minutes or less to complete. NTCA further stated that the lowering or removing of the current threshold exemption would result in an unwarranted burden on small carriers. NCTA further recommended that the Commission establish a new threshold of “not lower than 100 broadband lines per state” to reduce that burden, while at the same time achieving the Commission's objectives.

5. In an effort to balance the needs of the Commission with the costs our data gathering may place on smaller entities, the Commission has taken the suggestions of OPASTCO, NTCA and the SBA and simplified the Form 477 proposed in the Notice. By doing so, we will lessen the burden on all entities required to submit reports. We believe that these modifications satisfy SBA's request that we significantly reduce the burdens for those small entities that must comply. Moreover, we conclude that these modifications will allow the Commission to comply with Congress' charge in section 706 of the 1996 Act to determine whether advanced telecommunications capability, commonly known as “broadband,” is being deployed to all Americans. In order to gain the comprehensive understanding—as called for in section 706—of the broadband market, particularly in rural and inner-city areas and among demographic groups that are traditionally underserved, it is necessary to gather data from entities that are most likely to serve these areas and groups, which includes some smaller entities.

6. Among the other actions taken to reduce the overall burden on small entities, we retain the “decoupled” feature where the broadband and local competition reporting requirements are separate on the Form 477. Thus, we reduce reporting burdens on traditionally smaller providers by only requiring data that covers services they actually offer.

7. To further reduce the potential burden this data gathering program may place on smaller entities, we retain several of the time-saving and burden-reducing features of the original Form 477. Specifically, the report frequency remains semiannual. We still require carriers to report information about broadband connections and local telephone services on a state-by-state basis. To supplement this information, we ask providers of broadband connections and local exchange services to provide lists of the Zip Codes in which they serve at least one customer. Finally, we reaffirm that this reporting scheme continues to offer the best balance of our need to achieve geographically disaggregated information while minimizing burdens on all entities, including small entities.

8. Overall, we believe that our approach ( e.g. , simplifying the form and retaining the burden-reducing features of the original Form 477) will result in a program that is not overly burdensome on reporting entities, and thus balances the concerns raised by SBA and other commenters with the Commission's need to gain a better understanding of developments in these markets.

9. 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).

10. 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, is 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.

11. We have included small incumbent local exchange carriers (LECs) 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 LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent LECs in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

12. 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.

13. Incumbent Local Exchange Carriers (ILECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to incumbent local exchange services. 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 data, 1,310 carriers reported that they were engaged in the provision of 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 the rules and policies adopted herein.

14. Competitive Local Exchange Carriers (CLECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to providers of competitive exchange services or to competitive access providers or to “Other Local Exchange Carriers,” all of which are discrete categories under which TRS data are collected. 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 data, 563 companies reported that they were engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 563 companies, an estimated 472 have 1,500 or fewer employees and 91 have more than 1,500 employees. In addition, 37 carriers reported that they were “Other Local Exchange Carriers.” Of the 37 “Other Local Exchange Carriers,” 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, and “Other Local Exchange Carriers” are small entities that may be affected by the rules and policies adopted herein.

15. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to interexchange services. 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 data, 281 companies reported that their primary telecommunications service activity was the provision of interexchange services. Of these 281 companies, 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 interexchange service providers are small entities that may be affected by the rules and policies adopted herein.

16. Cellular Licensees. The SBA has developed a small business size standard for Cellular and Other Wireless Telecommunication, which consists of all such firms having 1,500 or fewer employees. 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 majority of firms can be considered small.

17. Broadband Personal Communications Service. The broadband Personal Communications Service (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. Based on this information, the Commission concludes that the number of small broadband PCS licenses will include the 90 winning C Block bidders, the 93 qualifying bidders in the D, E, and F Block auctions, the 48 winning bidders in the 1999 re-auction, and the 29 winning bidders in the 2001 re-auction, for a total of 260 small entity broadband PCS providers, as defined by the SBA small business size standards and the Commission's auction rules. Consequently, the Commission estimates that 260 broadband PCS providers are small entities that may be affected by the rules and policies adopted herein.

18. Narrowband Personal Communications Services. To date, two auctions of narrowband personal communications services (PCS) licenses have been conducted. For purposes of the two auctions that have already been held, “small businesses” were entities with average gross revenues for the prior three calendar years of $40 million or less. Through these auctions, the Commission has awarded a total of 41 licenses, out of which 11 were obtained by small businesses. To ensure meaningful participation of small business entities in future auctions, the Commission has adopted a two-tiered small business size standard in the Narrowband PCS Second Report and Order. 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. In the future, the Commission will auction 459 licenses to serve Metropolitan Trading Areas (MTAs) and 408 response channel licenses. There is also one megahertz of narrowband PCS spectrum that has been held in reserve and that the Commission has not yet decided to release for licensing. The Commission cannot predict accurately the number of licenses that will be awarded to small entities in future actions. However, four of the 16 winning bidders in the two previous narrowband PCS auctions were small businesses, as that term was defined under the Commission's rules. The Commission assumes, for purposes of this analysis, that a large portion of the remaining narrowband PCS licenses will be awarded to small entities. The Commission also assumes that at least some small businesses will acquire narrowband PCS licenses by means of the Commission's partitioning and disaggregation rules.

19. 220 MHz Radio Service—Phase I Licensees. The 220 MHz service has both Phase I and Phase II licenses. Phase I licensing was conducted by lotteries in 1992 and 1993. There are approximately 1,515 such non-nationwide licensees and four nationwide licensees currently authorized to operate in the 220 MHz band. The Commission has not developed a small business size standard for small entities specifically applicable to such incumbent 220 MHz Phase I licensees. To estimate the number of such licensees that are small businesses, we apply the small business size standard under the SBA rules applicable to “Cellular and Other Wireless Telecommunications” companies. This standard 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. If this general ratio continues in the context of Phase I 220 MHz licensees, the Commission estimates that nearly all such licensees are small businesses under the SBA's small business size standard.

20. 220 MHz Radio Service—Phase II Licensees. The 220 MHz service has both Phase I and Phase II licenses. The Phase II 220 MHz service is a new service, and is subject to spectrum auctions. In the 220 MHz Third Report and Order, we adopted a small business size standard for “small” and “very small” businesses for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. This small business size standard indicates that a “small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. A “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that do not exceed $3 million for the preceding three years. The SBA has approved these small business size standards. Auctions of Phase II licenses commenced on September 15, 1998, and closed on October 22, 1998. In the first auction, 908 licenses were auctioned in three different-sized geographic areas: three nationwide licenses, 30 Regional Economic Area Group (EAG) Licenses, and 875 Economic Area (EA) Licenses. Of the 908 licenses auctioned, 693 were sold. Thirty-nine small businesses won licenses in the first 220 MHz auction. The second auction included 225 licenses: 216 EA licenses and 9 EAG licenses. Fourteen companies claiming small business status won 158 licenses.

21. Fixed Microwave Services. Fixed microwave services include common carrier, private operational-fixed, and broadcast auxiliary radio services. At present, there are approximately 22,015 common carrier fixed licensees and 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission has not created a size standard for a small business specifically with respect to fixed microwave services. For purposes of this analysis, the Commission uses the SBA small business size standard for the category “Cellular and Other Telecommunications,” which is 1,500 or fewer employees. The Commission does not have data specifying the number of these licensees that have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA's small business size standard. Consequently, the Commission estimates that there are up to 22,015 common carrier fixed licensees and up to 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services that may be small and may be affected by the rules and policies adopted herein. We noted, however, that the common carrier microwave fixed licensee category includes some large entities.

22. Offshore Radiotelephone Service. This service operates on several UHF television broadcast channels that are not used for television broadcasting in the coastal areas of states bordering the Gulf of Mexico. There are presently approximately 55 licensees in this service. We are unable to estimate at this time the number of licensees that would qualify as small under the SBA's small business size standard for “Cellular and Other Wireless Telecommunications” services. Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees.

23. Wireless Communications Services. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission established small business size standards for the wireless communications services (WCS) auction. A “small business” is an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” is an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these small business size standards. The Commission auctioned geographic area licenses in the WCS service. In the auction, there were seven winning bidders that qualified as “very small business” entities, and one that qualified as a “small business” entity. We conclude that the number of geographic area WCS licensees affected by this analysis includes these eight entities.

24. Satellite Services. The SBA has developed a small business size standard for Satellite Telecommunications, which consists of all such firms having $12.5 million or less in annual receipts. According to Census Bureau data for 1997, in this category there was a total of 324 firms that operated for the entire year. Of this total, 273 firms had annual receipts of under $10 million, and an additional twenty-four firms had receipts of $10 million to $24,999,999. Thus, under this size standard, the majority of firms can be considered small.

25. In addition to the estimates provided above, we consider certain additional entities that may be affected by the data collection from broadband service providers. Because section 706 requires us to monitor the deployment of broadband regardless of technology or transmission media employed, we anticipate that some broadband service providers will not provide telephone service. Accordingly, we describe below other types of firms that may provide broadband services, including cable companies, MDS providers, and utilities, among others.

26. Cable Television Relay Service. This service includes transmitters generally used to relay cable programming within cable television system distribution systems. The SBA has defined a small business size standard for Cable and other Program Distribution, consisting of all such companies having annual receipts of no more than $12.5 million. According to Census Bureau data for 1997, there were 1,311 firms in the industry category Cable and Other Program Distribution, total, that operated for the entire year. Of this total, 1,180 firms had annual receipts of $10 million or less, and an additional 52 firms had receipts of $10 million or more but less than $25 million. Thus, under this standard, we estimate that the majority of providers in this service category are small businesses.

27. Cable System Operators (Rate Regulation Standard). The Commission has developed, with SBA approval, its own definition of a small cable system operator for purposes of rate regulation. Under the Commission's rules, a “small cable company” is one serving fewer than 400,000 subscribers nationwide. Based on our most recent information, we estimate that there were 1,439 cable operators that qualified as small cable companies at the end of 1995. Since then, some of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. The Commission's rules define a “small system,” for purposes of rate regulation, as a cable system with 15,000 or fewer subscribers. The Commission does not request nor does the Commission collect information concerning cable systems serving 15,000 or fewer subscribers, and thus is unable to estimate, at this time, the number of small cable systems nationwide.

28. Cable System Operators (Telecom Act Standard). The Communications Act, as amended, also contains a size standard for a small cable system operator, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that there are 68,500,000 subscribers in the United States. Therefore, an operator serving fewer than 685,000 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all of its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that the number of cable operators serving 685,000 subscribers or less totals approximately 1,450. Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

29. Multipoint Distribution Service, Multichannel Multipoint Distribution Service, and ITFS. 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 established a small business size standard as an entity that had annual average gross revenues of less than $40 million in the previous three calendar years. The MDS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition of a small business. MDS also includes licensees of stations authorized prior to the auction. 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 rules and policies adopted herein. This SBA small business size standard also appears applicable to ITFS. There are presently 2,032 ITFS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities. Thus, we tentatively conclude that at least 1,932 licensees are small businesses.

30. Local Multipoint Distribution Service. Local Multipoint Distribution Service (LMDS) is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications. The auction of the 1,030 Local Multipoint Distribution Service (LMDS) licenses began on February 18, 1998 and closed on March 25, 1998. The Commission established a small business size standard for LMDS licenses as an entity that has average gross revenues of less than $40 million in the three previous calendar years. An additional small business size standard for “very small business” was added as an entity that, together with its 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 in the context of LMDS auctions. There were 93 winning bidders that qualified as small entities in the LMDS auctions. A total of 93 small and very small business bidders won approximately 277 A Block licenses and 387 B Block licenses. On March 27, 1999, the Commission re-auctioned 161 licenses; there were 40 winning bidders. Based on this information, we conclude that the number of small LMDS licenses consists of the 93 winning bidders in the first auction and the 40 winning bidders in the re-auction, for a total of 133 small entity LMDS providers. The license terms require the licensees to build their wireless facilities within ten years of the grant. As a result, more information on the licensees will become available in the year 2008, when the licensees are required to show the Commission that they have achieved substantial service as part of the application renewal process.

31. Electric Power Generation, Transmission and Distribution. This industry group comprises establishments primarily engaged in generating, transmitting, and/or distributing electric power. Establishments in this industry group may perform one or more of the following activities: (1) Operate generation facilities that produce electric energy; (2) operate transmission systems that convey the electricity from the generation facility to the distribution system; and (3) operate distribution systems that convey electric power received from the generation facility or the transmission system to the final consumer. The SBA has developed a small business size standard for the category of Electric Power Generation, Transmission and Distribution. Under that standard, a firm is small if, including its affiliates, its total electric output for the preceding fiscal year did not exceed 4 million megawatt hours. According to Census Bureau data for 1997, there were 1,519 firms in this category that operated for the entire year. Census data do not track electric output and we have not determined how many of these firms fit the SBA definition for small, with fewer than 4 million megawatt hours of electric output. Consequently, the Commission estimates that all 1,519 firms may be considered small by the SBA definition.

32. The Order extends the data collection for five years and adopts changes to the Form 477 that will affect reporting, recordkeeping, and other compliance requirements. The Order requires all facilities-based providers of broadband connections to end users to report broadband data, all LECs to report local telephone service data, and all mobile telephone carriers to report mobile telephone data. The other changes to the Form 477 are described below.

33. The Form 477 changes:

• Require cable systems that use (or whose affiliates or agents use) the cable system's own plant to provide broadband cable modem connections also to report a best estimate of the extent to which those connections are available to the residential end user premises to which the cable system offers cable programming service.

• Require ILECs that use (or whose affiliates or agents use) the ILEC's own telephone plant to provide broadband DSL connections also to report a best estimate of the extent to which those connections are available to the residential end user premises to which the ILEC provides local telephone service.

• Require filers to report the percentage of connections that have information transfer rates exceeding 200 kilobits per second (kbps) in both directions and rates in the faster direction that are, respectively: (1) Greater than 200 kbps and less than 2.5 megabits per second (mbps); (2) greater than or equal to 2.5 mbps and less than 10 mbps; (3) greater than or equal to 10 mbps and less than 25 mbps; (4) greater than or equal to 25 mbps and less than 100 mbps; and (5) greater than or equal to 100 mbps. (In the current Form 477 program, filers report the percentage of connections that are faster than 2 mbps in both directions.)

• In place of the previous requirement that all filers report broadband connections over “other traditional wireline including symmetric xDSL technology” at the end user location, require filers to report broadband connections separately for “symmetric xDSL” and “traditional wireline such as T-carrier” technologies.

• Require filers to report Zip Code lists separately for asymmetric xDSL, symmetric xDSL, cable modem, optical carrier (fiber to the end user), satellite, terrestrial fixed wireless, terrestrial mobile wireless, electric power line, and (as a single category) other technologies. (In the current Form 477 program, filers report a single list of Zip Codes in which the filer has at least one subscriber to broadband service without indicating the type of technology used.)

• Require filers to estimate the percentage of reported broadband connections that have information transfer rates exceeding 200 kbps in both directions, and that connect to residential end user premises.

• Require reporting competitive LECs explicitly to distinguish their use of unbundled network element (UNE) loops from their use of the UNE-Platform, and explicitly to report the extent to which they provide telephone service lines by reselling another carriers' services (such as Centrex or special access) or facilities obtained under commercial arrangements. (In the current Form 477 program, competitive LECs report their use of all types of UNEs together, and competitive LECs' use of resold service and facilities obtained under commercial arrangements must be estimated, as a residual, from other data they report.)

• Remove the requirement, in the current Form 477 program, that LECs must estimate the types of customers unaffiliated carriers serve by means of the services and facilities the LEC provides under “Total Service Resale” arrangements, other resale arrangements, or as unbundled network elements (UNEs).

• Remove the requirement, in the current Form 477 program, that LECs must report the extent to which they use local loop facilities that they own and UNE loops that they obtain from another carrier to provision the services they provide to unaffiliated carriers for resale.

• Remove the requirement, in the current Form 477 program, that LECs must report information related to their “collocation” arrangements with unaffiliated carriers.

• Require LECs report the extent to which they are also the end user's default interstate long distance carrier.

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

35. We have had the benefit of four year's experience since the adoption of the original Form 477 reporting program. Accordingly, in the Notice, we sought comment on ways that the Commission might improve this data gathering effort. The Notice asked whether the collection of more granular data would enhance the Commission's ability to understand the status and degree of broadband deployment pursuant to section 706 of the 1996 Act. At the same time, the Notice asked for comment on ways by which the Commission can limit burdens imposed on providers, particularly with regard to smaller providers that may have limited resources, prevent the dissemination of competitively-sensitive information, and limit the data collection, wherever possible, to information that providers routinely keep in the ordinary course of business or that is easily derived from their records. The proposed changes to the Form 477 set forth in the Notice would minimize additional reporting burden by (1) focusing direct questions about service availability on the two major residential high-speed services and (2) allowing providers of those services to estimate state-level service availability using methodologies they may already employ to inform the investment community about system-wide service availability. As a practical matter, any additional reporting burdens on small entities should be minimal. The few small facilities-based broadband service providers that currently file Form 477 on a voluntary basis find that only a few questions apply to their situation.

36. The Notice asked whether eliminating—or lowering—the reporting threshold for broadband data ( i.e. , at least 250 high-speed lines (or wireless channels) in a state connecting end users to the Internet) would yield significantly improved data about broadband deployment, particularly in rural areas, and requested that parties identify with specificity any associated burdens. The Notice similarly asked about the benefits and specific associated burdens of lowering the reporting threshold for local telephone competition data ( i.e. , at least 10,000 local telephone service lines (or wireless channels), or at least 10,000 mobile telephone service subscribers, in a state). At the same time, the Notice expressly stated the Commission's desire and intention to work closely with service providers, including small entities, to minimize burdens wherever possible, particularly for smaller providers that may have limited resources.

37. In the Order, we take several significant steps to minimize the burdens of reporting broadband information on small entities. First, we simplify the new Form 477 from the one proposed in the Notice. We expect that this simplification will reduce the time and administrative burden to all carriers, including small entities. Next, we eliminate the proposed requirements for carriers to report the number of broadband connections, by technology, in particular Zip Codes, or to report, for each Zip Code, any information about the number of connections provided in various “speed tiers.”

38. In this Order, we also take several significant steps to minimize the burdens of reporting local telephone service data. We do this by eliminating several reporting requirements of the original Form 477. In the new and simplified Form 477, LECs are no longer required to report information about how they provision the wholesale local telephone service connections that they report they provide to unaffiliated carriers. Also, we no longer require LECs to report information about how they provision unbundled network elements (UNEs) that they report they provide to unaffiliated carriers. We will also no longer require LECs to report information about special access circuits that they provide. To the extent that carriers ( e.g. , competitive LECs) obtain special access circuits, or private line circuits, from unaffiliated LECs and use them to provision switched access lines to their own end-user customers, however, they will continue to include, in their own Form 477 filings, the switched access lines that they provision in this manner.

39. To further simplify the filing process and reduce the administrative burdens on all carriers, we will no longer require filers to provide a separate, redacted file when the filer requests confidential treatment of reported data. The new and simplified Form 477 promulgated by this Order will continue to enable filers to request confidential treatment of their data by using a drop-down box located on the first page of the Form 477 to indicate that claim. Then, if the Commission receives a request for, or proposes the disclosure of, information reported on that particular Form 477, the filer will be notified and afforded the opportunity to make the necessary showing that the data should not be disclosed. We will continue the current practice of releasing only aggregated broadband information in our published reports to protect against release of filer-specific information directly or indirectly, as might occur, for example, if published aggregates could be compared to redacted files.

40. The FCC Form 477 promulgated in this Order and the FCC Form 325 (Annual Report of Cable Systems) collect data on cable modem and cable-telephony service subscribers. The Form 325, however, focuses on cable physical system (PSID) data. A Form 325 is required from each PSID that has at least 20,000 subscribers and from a random sample of PSIDs that have fewer than 20,000 subscribers. The data are associated on the form with other aspects of physical system operation to give a complete picture of related aspects of PSID operation. By contrast, the requirement to report cable modem service connections on Form 477 applies to holding companies whose subsidiaries and affiliates provide high-speed connections to end users in a particular state, and the requirement to report cable-telephony lines applies when the holding company provides local telephone service lines in a particular state. Form 325 collects information based on operations as of a typical day in the last full week of June. Form 477 collects data as of June 30 and December 31. In the new Form 477 promulgated by this Order, facilities-based providers report information about high-speed connections on Form 477, which, for its intended purposes, focuses on and is analyzed on a holding company rather than PSID basis.

Accordingly, it is ordered that, pursuant to sections 1-5, 10, 11, 201-205, 215, 218-220, 251-271, 303(r), 332, 403, 502, and 503 of the Communications Act of 1934, as amended, 47 U.S.C. 151-155, 160, 161, 201-205, 215, 218-220, 251-271, 303(r), 332, 403, 502, and 503, and pursuant to section 706 of the Telecommunications Act of 1996, 47 U.S.C. 157nt, this ORDER, with all attachments, is hereby adopted.

The rules in this document contain information collection requirements that have not been approved by OMB. The Federal Communications Commission will publish a document in the Federal Register announcing the effective date.

It is further ordered that providers subject to the requirements and regulation established in this Order shall complete and file the amended Local Telephone Competition and Broadband Reporting Form (FCC Form 477) no later than September 1, 2005, and semiannually thereafter.

It is further ordered that the Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of the Local Telephone Competition and Broadband Reporting ORDER, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

OMB No: 3060-0816; Expiration Date: xx/xx/xxxx.

Estimated Average Burden Hours Per Response: 10 Hours.

FCC Form 477 collects information about broadband connections to end user locations, and about wired and wireless local telephone services, in individual states. The term “state” includes the District of Columbia and the “Territories and possessions” ( see 47 U.S.C. 153(40)). Data obtained from this form will be used to describe the deployment of broadband infrastructure and competition to provide local telecommunications services. See Local Telephone Competition and Broadband Reporting , Report and Order, FCC 04-266 (rel. Nov. 12, 2004) for additional information about this data collection.

Three types of entities must file this form. For purposes of this information collection, the term “entity” (and synonyms used in these instructions) includes all commonly-controlled or commonly-owned affiliates. ( See 47 U.S.C. 153(1) (establishing a 10 percent equity interest, or the equivalent thereof, as indicia of ownership.))

• Facilities-based Providers of Broadband Connections to End User Locations: Entities that are facilities-based providers of broadband connections—which, for purposes of this information collection, are wired “lines” or wireless “channels” that enable the end user to receive information from and/or send information to the Internet at information transfer rates exceeding 200 kilobits per second (kbps) in at least one direction—must complete and file the applicable portions of this form for each state in which the entity provides one or more such connections to end user locations. For the purposes of Form 477, an entity is a “facilities-based” provider of broadband connections to end user locations if it owns the portion of the physical facility that terminates at the end user location, if it obtains unbundled network elements (UNEs), special access lines, or other leased facilities that terminate at the end user location and provisions/equips them as broadband, or if it provisions/equips a broadband wireless channel to the end user location over licensed or unlicensed spectrum. Such entities include incumbent and competitive local exchange carriers (LECs), cable system operators, fixed wireless service providers (including “wireless ISPs”), terrestrial and satellite mobile wireless service providers, MMDS providers, electric utilities, municipalities, and other entities. (Such entities do not include equipment suppliers unless the equipment supplier uses the equipment to provision a broadband connection that it offers to the public for sale. Such entities also do not include providers of fixed wireless services ( e.g. , “Wi-Fi” and other wireless ethernet, or wireless local area network, applications) that only enable local distribution and sharing of a premises broadband facility.) For such entities, the applicable portions of the form are: (1) The Cover Page; (2) Part I; (3) Part IV (if necessary); and (4) The relevant portion(s) of Part V.

• Providers of Wired or Fixed Wireless Local Telephone Services: Incumbent and competitive LECs must complete and file the applicable portions of the form for each state in which they provide local exchange service to one or more end user customers (which may include “dial-up” ISPs). For such entities, the applicable portions of the form are: (1) The Cover Page; (2) Part II; (3) Part IV (if necessary); and (4) Column (j) of Part V.

• Providers of Mobile Telephony Services: Facilities-based providers of mobile telephony services ( see 47 CFR 20.15(b)(1)) must complete and file the applicable portions of this form for each state in which they serve one or more mobile telephony subscribers. A mobile telephony service is a real-time, two-way switched voice service that is interconnected with the public switched network using an in-network switching facility that enables the provider to reuse frequencies and accomplish seamless handoff of subscriber calls. A mobile telephony service provider is considered “facilities-based” if it serves a subscriber using spectrum for which the entity holds a license, that it manages, or for which it has obtained the right to use via lease or other arrangement with a Band Manager. For such entities, the applicable portions of this form. The applicable portions of the form are: (1) The Cover Page; (2) Part III; and (3) Part IV (if necessary).

Line 1: Provide the name of the company or operations whose data are reported in this form. (If the filer has a holding company or other controlling entity with a different name, that controlling entity's name must be reported in Line 3 of the Cover Page.)

Line 2: Use the drop-down box to indicate whether the data in this form are for incumbent LEC (ILEC) operations or for non-ILEC operations. (Data for affiliated operations in a single state may be combined in a single form, except that filers may not combine data for ILEC operations with data for non-ILEC operations.)

Line 3: Use the drop-down box to select the single name, such as a holding company name, that identifies all commonly-owned or commonly-controlled entities that are filing Form 477. (If the appropriate name is not included in the provided list, enter the appropriate name in the space provided. If you have no holding company or other controlling entity, enter in Line 3 the same name as you entered in Line 1 of the Cover Page.)

Line 4: Use the drop-down box to select the state for which data are reported in this form. (You may not combine, in a single form, data for operations in more than one state. For example, the only data that may be reported in a “headquarters state” form are data for operations within that specific state.)

Line 5: Provide a contact name for the person who prepared this filing.

Line 6: Provide the telephone number and e-mail address for the contact person listed in Line 5 of the Cover Page.

Line 7: Use the drop-down box in Line 7 to indicate whether this filing is an original or a revised filing. (You must file a revised form if you discover mistakes as specified in Section IV.D. of these instructions.)

Line 8: Use the drop-down box to indicate whether you request non-disclosure of information reported in this form. You may request non-disclosure if you believe some or all of the information reported in this form is privileged and confidential and that public disclosure of such information would likely cause substantial harm to the competitive position of the filer.

Include in Part I.A: In Part I.A., facilities-based providers of broadband connections to end user locations report information about those connections. See page 1 of these instructions for definitions of facilities-based provider and broadband connection. End users are residential, business, institutional and government entities who use broadband services for their own purposes and who do not resell such services to other entities or incorporate such services into retail Internet-access services that they market to end users. (Note that an Internet Service Provider is not an “end user” for purposes of Part I of FCC Form 477.) The end users of retail services delivered over the broadband connections reported in Part I.A. may be billed by the filer (including affiliates), by an agent of the filer, or by an unaffiliated entity. In categorizing lines as “broadband,” filers should consider the end user's authorized maximum information transfer rate (speed) on that connection. Do not convert into voice-grade equivalent measures any connections reported in Part I.A.

Exclude in Part I.A: Exclude subscribership connections for cable television service and other multi-channel video programming service; video-on-demand type service unless it is bundled with Internet-type access or uses Internet-type delivery protocols; and services that do connect to the Internet but restrict the end user to both transmitting data to the Internet and receiving data from the Internet at information transfer rates (speeds) of 200 kbps or less. Exclude connections between two locations of the same business or other end user entity (such as point-to-point connections within private or semi-private data networks or corporate telephone systems). Exclude high-capacity connections between network components within the public switched telephone network or the Internet (note that such connections do not terminate at an end user location). Exclude in Part I.A. high-capacity dedicated connections (special access circuits) between end users and interexchange (telephone) carrier points of presence.

Report broadband connections to end user locations on Lines A.I-1 through A.I-10 based on the technology employed by the part of the connection that actually connects to the end user location. If different technologies are used in the two directions of information transfer (downstream and upstream), report the connection in the technology category for the higher-rate direction. Count only connections that are in service, including connections over which you (including affiliates or agents) provide an Internet-access service to the end user and connections over which an unaffiliated entity (which is not your agent) provides an Internet-access service to the end user.

Line A.I-1: Report the number of broadband connections provided over asymmetric xDSL technologies. Do not convert these connections into a voice-grade equivalent measure.

Line A.I-2: Report the number of broadband connections provided over symmetric xDSL technologies. Do not convert these connections into a voice-grade equivalent measure.

Line A.I-3: Report the number of broadband connections provided over traditional wireline facilities, such as T-carrier. Do not include broadband connections provided over symmetric xDSL service, but report such connections in Line A.I-2. Do not convert these connections into a voice-grade equivalent measure.

Line A.I-4: Report the number of cable modem connections. Do not convert these connections into a voice-grade equivalent measure.

Line A.I-5: Report the number of broadband connections provided over optical carrier terminations at the end-user premises. (Note that broadband connections that are provisioned over optical fiber facilities used elsewhere in the network should not be reported in this category. For example, connections provisioned as “fiber to the curb” do not qualify because, by using a non-fiber “drop,” they are not “fiber to the home.”) Do not convert these connections into a voice-grade equivalent measure.

Line A.I-6: Report the number of broadband connections provided over satellite facilities. Do not convert these connections into a voice-grade equivalent measure.

Line A.I-7: Report the number of broadband connections provided over terrestrial fixed wireless facilities (whether provisioned/equipped over licensed spectrum or over spectrum used on an unlicensed basis). Do not convert these connections into a voice-grade equivalent measure. (Do not report those fixed wireless services ( e.g. , “Wi-Fi” and other wireless ethernet, or wireless local area network, applications) that only enable local distribution and sharing of a premises broadband facility.)

Line A.I-8: Report the number of subscribers to broadband services provided over terrestrial mobile wireless facilities (whether provisioned/equipped over licensed spectrum or over spectrum used on an unlicensed basis). Terrestrial wireless broadband providers should report the number of end users whose mobile devices, such as wireless modem laptop cards, smartphones, or handsets, are capable of sending or receiving data at speeds in excess of 200 kbps and whose billing addresses are within the areas of terrestrial mobile wireless broadband availability as reported in Part V.

Line A.I-9: Report the number of broadband connections provided over electric power lines. Do not convert these connections into a voice-grade equivalent measure.

Line A.I-10: Report the number of broadband connections provided over all other technologies. Do not convert these connections into a voice-grade equivalent measure. Note that the filer must identify each specific technology used to provide the connections reported in Line A.I-10, and the corresponding number of connections for each specific technology, in the comment section of Part IV of the form.

General Note about Reporting Percentage Breakouts: Parts I, II, and III of Form 477 direct filers to provide percentage breakouts for specific counts of connections. If disaggregated counts exist for another purpose, then these must be used to calculate the requested percentage breakouts. However, filers are not expected to calculate percentages based on exhaustive counts performed solely for this task. Rather, where disaggregated counts do not exist, filers may provide good faith estimates of percentages based on the best information available to the filer. For example, if there is a pricing distinction between services provided to residential end users, then billing information may be used to estimate the percentage of connections provided to such end users. In the absence of such information, however, filers should rely on studies done for other purposes such as marketing and business plan information, demographic data, etc. A filer should conduct limited special studies only in the event that it cannot provide estimates of percentage breakouts that it reasonably expects to be accurate within plus or minus five percentage points.

Column (a): Report the total number of broadband connections as described in each of Lines A.I-1 through A.I-10, above.

Column (b): Report the percentage of total connections reported in column (a) that are residential connections in the sense that these connections are used to deliver Internet-access services that are primarily purchased by, designed for, and/or marketed to residential end users. (Such Internet-access services may differ in price, “speed tier,” and other features from Internet-access services that are primarily purchased by, designed for, and/or marketed to non-residential end users.)

Column (c): Report the percentage of total connections reported in column (a) that are provided over your own local loop facilities, or the wireless last-mile equivalent. Your own such facilities include wired local loop facilities that you (including affiliates) owned, wireless connections to end user locations that you (including affiliates) have provisioned/equipped over spectrum that you use on an unlicensed basis or over spectrum for which you hold a license, manage, or have obtained the right to use via lease or other arrangement with a Band Manager, and facilities you obtained the right to use from unaffiliated entities as dark fiber or satellite transponder capacity (and that you used as part of your own system). Do not include, in column (c), broadband connections to end users that you provided over UNEs, special access lines, and other leased lines that you obtained from an unaffiliated entity and equipped as broadband.

Column (d): Report the percentage of total connections reported in column (a) that are billed (or incorporated in a service billed) to end users by the filer (including affiliates) or its agents. Do not include in this percentage any lines reported in column (a) that are billed to an unaffiliated Internet Service Provider (ISP) that has incorporated the filer's broadband service into a premium Internet-access service marketed under the unaffiliated ISP's own name.

Note on columns (e)-(j) of Part I.A: The percentages reported in columns (e)-(j) of Part I.A refer, in each case, to connections that carry information, at the end user location, at information transfer rates exceeding 200 kbps in both directions. In categorizing broadband connections in this manner, filers should consider the end user's authorized maximum information transfer rate (speed) on that connection.

Column (e): Report the percentage of total connections reported in column (a) that carry information, at the end user location, at information transfer rates exceeding 200 kbps in both directions and that are residential connections in the sense that they are used to deliver Internet-access services that are primarily purchased by, designed for, and/or marketed to residential end users. (As noted in the instructions for column (b), above, such Internet-access services may differ in price, “speed tier,” and other features from Internet-access services that are primarily purchased by, designed for, and/or marketed to non-residential end users.)

Column (f): Report the percentage of total connections reported in column (a) that carry information, at the end user location, at information transfer rates exceeding 200 kbps in both directions and, in the faster direction, at rates greater than 200 kbps and less than 2.5 mbps.

Column (g): Report the percentage of total connections reported in column (a) that carry information, at the end user location, at information transfer rates exceeding 200 kbps in both directions and, in the faster direction, at rates greater than or equal to 2.5 mbps and less than 10 mbps.

Column (h): Report the percentage of total connections reported in column (a) that carry information, at the end user location, at information transfer rates exceeding 200 kbps in both directions and, in the faster direction, at rates greater than or equal to 10 mbps and less than 25 mbps.

Column (i): Report the percentage of total connections reported in column (a) that carry information, at the end user location, at information transfer rates exceeding 200 kbps in both directions and, in the faster direction, at rates greater than or equal to 25 mbps and less than 100 mbps.

Column (j): Report the percentage of total connections reported in column (a) that carry information, at the end user location, at information transfer rates exceeding 200 kbps in both directions and, in the faster direction, at rates greater than or equal to 100 mbps.

Incumbent LECs that report xDSL (asymmetric or symmetric) connections in Part I.A (or whose affiliates report such connections) must complete Line B.I-11. Cable system operators that report cable modem connections (or whose affiliates report such connections) in Part I.A. must complete Line B.I-12.

Line B.I-11: Of those residential end user premises in this state to which you (including affiliates) can deliver telephone service over local loop facilities that you own (or over the fixed wireless last-mile equivalent), report your best estimate of the percentage of premises to which broadband (asymmetric or symmetric) xDSL service is also available from you (or your affiliate, or an agent of you or your affiliate) over those facilities.

Line B.I-12: Of those residential end user premises in this state to which you (including affiliates) can offer cable television service over cable plant that you own, report the best estimate of the percentage of premises to which broadband cable modem service also is available from you (or your affiliate, or an agent of you or your affiliate) over that plant.

Residential end user premises include residential living units ( e.g. , single family dwellings and individual households in multiple dwelling units such as apartments, condominiums, mobile home parks, etc.) and also individual living units in such institutional settings as college dormitories and nursing homes. For the purposes of this data collection, residential end user premises also include other end user locations to which you (including your affiliates and agents) market broadband services that are primarily designed for residential use.

Guidance on generating a “best estimate': Rather than setting out detailed methodologies to which filers must adhere in reporting information in Part I.B., we intend to rely on current “best practices” in the local exchange and cable television industries to provide us with carefully considered estimates. Filers should note the following points. (1) The reported estimate of xDSL or cable modem service availability should not require degradation, outside of normal operating parameters, of the service quality of the filer's most heavily purchased type(s) of xDSL or cable modem service. (2) Filers should take into account rule-of-thumb lessons from the experience of deploying particular broadband services in similar areas ( e.g. , differences between actual and theoretical availability of xDSL service to end user premises in areas in which the service already has been deployed, such as may arise due from loop conditioning factors and loop lengths).

Include in Part II: Report lines or wireless channels (hereafter, “lines”) that you (including affiliates) use to provide voice telephone service in this state. For purposes of this data collection, “voice telephone service” means local exchange or exchange access services that allow end users to originate and/or terminate local telephone calls on the public switched network, whether used by the end user for voice telephone calls or for other types of calls carried over the public switched network (for example, lines used for facsimile equipment or lines used occasionally or exclusively for “dial-up” connection to the Internet). See “Note for reporting channelized service,” below.

Exclude in Part II: Do not report in Part II lines not yet in service, lines used for interoffice trunking, company official lines, lines used for special access service, or lines that were reported in Part I of this form. Do not report in Part II any lines that connect two locations of the same end user customer, ISP, or communications carrier. Where you are already reporting the portion of a circuit between the end user and your switching center, do not separately count the portion of that circuit between your switching center and a circuit switched, Internet protocol, or ATM network, irrespective of whether you multiplexed the circuit onto a higher-capacity facility between your switching center and that network. Note for reporting channelized service: In Part II.A and Part II.B, providers must report voice-grade equivalent lines. Count as one voice-grade equivalent line: traditional analog POTS lines, Centrex-CO extensions, and Centrex-CU trunks.

Count lines based on how they are charged to the customer rather than how they are physically provisioned. That is, when a customer is charged for channelized service, report the number of activated, charged-for channels rather than the theoretical capacity of the line. Examples: Count Basic Rate Integrated (BRI) Services Digital Network (ISDN) lines as two voice-grade equivalent lines. Count fully-channelized PRI circuits (including PRIs that are used exclusively to provide local connectivity to “dial-up” ISPs) as 23 voice-grade equivalent lines. But report, for example, 8 voice-grade equivalent lines if a customer is charged for 8 trunks that happen to be provisioned over a DS1 circuit. If a customer is charged for a fully-channelized DS1 circuit, however, report 24 voice-grade equivalent lines. In Part II.C, however, any high-capacity UNEs should not be reported in voice-grade equivalents. UNEs should be reported as actual circuit counts. Note for competitive LECs providing local exchange service over hybrid fiber-coaxial cable systems: If you cannot determine the number of lines from your records, you may report the number of subscribers.

In Line A.II-1 (service provided to end users) and Lines B.II-2 through B.II-3 (service provided to unaffiliated carriers for resale), report voice-grade equivalent lines used to provide voice telephone service. See “Note for reporting channelized service,” above.

Line A.II-1: Report total voice-grade equivalent lines that you (including affiliates and agents) provided—that is, billed—directly to end users. Include lines provided to end users by your agents or under traditional marketing arrangements; for example, include lines provided to shared-tenant service providers. Note that an Internet Service Provider (ISP) may be an end user of local exchange service lines. (For example, a “dial-up” ISP may purchase channelized PRI circuits so that its customers can reach it via a local telephone call.)

Line B.II-2: Report total voice-grade equivalent local telephone service lines that you provided to unaffiliated telecommunications carriers under a Total Service Resale arrangement ( i.e. , provided pursuant to section 251(c)(4) of the Communications Act of 1934, as amended).

Line B.II-3: Report total voice-grade equivalent local telephone service lines that you provided to unaffiliated telecommunications carriers under other arrangements, such as Centrex/Centron or special access service, that provide the unaffiliated carrier with a connection to the end user premises and enable the unaffiliated carrier to provide local telephone service to the end user.

In Lines C.II-4 and C.II-5, report counts of circuits. Do not convert circuits to voice-grade equivalent measures.

Line C.II-4: Report the number of circuits you provided to unaffiliated telecommunications carriers under an unbundled network element (UNE) loop arrangement, where you do not provide switching for that circuit. Do not convert any high capacity circuits provided under such UNE arrangements into voice-grade equivalent measures.

Line C.II-5: Report the number of circuits you provided to unaffiliated telecommunications carriers under a UNE loop arrangement, where you also provide switching for that circuit ( i.e. , “UNE-Platform”). Do not convert any high-capacity circuits provided under such UNE arrangements into voice-grade equivalent measures.

Column (a): For Lines A.II-1 through B.II-3, report voice-grade equivalent lines used to provide voice telephone service, as defined above. For Lines C.II-4 and C.II-5, report the number of circuits ( i.e. , not the voice-grade equivalent of those circuits).

Columns (b)-(j): Complete columns (b)-(j) for Line A.II-1. See also “General note about reporting percentage breakouts,” above.

Column (b): Report the percentage of the lines reported in column (a) that are used for residential service. Include lines provided to shared-tenant service providers in apartment buildings and similar residential settings. ILEC filers may report based on the percentage of lines reported in column (a) that are tariffed residential lines, with an appropriate adjustment for lines provided under shared-tenant service arrangements. Carriers that do not have separate residential tariffs or price lists should use marketing or other information about the demographic characteristics of the areas they serve to develop a comparable estimate, or should undertake a limited special study.

Column (c): Report the percentage of the lines reported in column (a) for which you (including affiliates) are the default interstate long distance carrier, i.e. , the (facilities-based or reseller) carrier to which an interstate long distance call is routed automatically, without the use of any access code by the end user.

Column (d): Report the percentage of the lines reported in column (a) that are used for residential service (as specified in the instructions for column (b), above) and for which you (including affiliates) are the default interstate long distance carrier (as specified in the instructions for column (c), above).

Column (e): Report the percentage of the lines reported in column (a) that are provided over your own local loop facilities connecting to the end user's premises. Count as your own such facilities, those wired local loop facilities you (including affiliates) own, those facilities you obtain the right to use from unaffiliated entities as dark fiber or satellite transponder capacity (and that you use as part of your own system), those fixed-wireless connections to end user premises that are deployed over spectrum for which you hold a license, manage, or have obtained the right to use via lease or other agreement with a Band Manager, or those fixed-wireless connections that are deployed over spectrum that you use on an unlicensed basis. Do not include, in column (c), lines provided over UNE loops, special access lines, or other leased lines that you obtained from an unaffiliated carrier.

Note for competitive LECs that own telephone switches: A competitive LEC should include, in column (e), a line for which it provided its own switching only if it also owned (as just discussed) the local loop facilities that connect to the end user's premises.

Column (f): Report the percentage of lines reported in column (a) that are provided over UNE loops that you obtained from an unaffiliated carrier without also obtaining UNE switching from that carrier.

Column (g): Report the percentage of lines reported in column (a) that are provided over UNE-Platform ( i.e. , the combination of loop UNE, switching UNE, and transport UNE) that you obtained from an unaffiliated carrier.

Column (h): Report the percentage of lines reported in column (a) that are provided by reselling a telecommunications service (such as Centrex/Centron or special access) that you obtained from an unaffiliated carrier, or by using facilities that you obtained from an unaffiliated carrier under a commercial arrangement.

Column (i): Report the percentage of lines reported in column (a) that are delivered over coaxial cable facilities used in the part of the line that connects to the end user premises (“cable telephony”).

Column (j): Report the percentage of lines reported in column (a) that are delivered over fixed wireless facilities used in the part of the line that connects to the end user premises.

Line A. III-1: Report all mobile voice telephony subscribers served over your own facilities that give customers the ability to place or receive calls from the public switched telephone network. (See column (a), below, for how to count subscribers.) Include: satellite, cellular, and PCS telephone service and other terrestrial mobile services; and, units in service that combine voice telephone with other services. Report subscribers that you (including affiliates) serve using spectrum for which you hold a license, manage, or have obtained the right to use via lease or other agreement with a Band Manager. Do not report any subscribers that you serve by reselling an unaffiliated carrier's mobile telephone service.

Column (a): Report the total number of mobile voice telephony subscribers in the state that are served over your own facilities. Count as a subscriber a mobile handset, car-phone, or other revenue-generating, active, voice unit that has a unique phone number and that can place and receive calls from the public switched network. Include in column (a) subscribers that you (including affiliates) bill directly (including through agents), pre-paid subscribers, and subscribers served via unaffiliated mobile telephone service resellers. Subscriber counts by state should be based on the area codes of the phone numbers provided to subscribers.

Column (b): Report the percentage of subscribers in column (a) that you bill directly (including through agents) or serve on a pre-paid basis. Do not include subscribers that are billed by an unaffiliated mobile telephone service reseller.

Filers that must report: If there is a non-zero entry in column (a) of Line A.I-10 of Part I of a form, the filer must identify each specific technology used to provide the broadband connections reported in Line A.I-10, and the corresponding number of connections for each specific technology, in the comment section of Part IV of the form.

Other filers: Complete Part IV to furnish relevant explanatory information with your data. For example, an explanation should be provided if a percentage figure has changed noticeably from earlier filings. In Part IV, filers should identify the Part and Line to which their comment applies in the columns provided.

Line V-1: Report, in the appropriate column, the 5-digit Zip Codes—for this state—in which you provide at least one of the broadband connections reported in Part I.A, or at least one of the voice-grade telephone service lines provided to end users reported in Part II, Line II.A-1. Do not report line counts or subscriber counts by Zip Code.)

Column (a)-(i): If you file broadband information in Part I, you must provide, for each individual technology indicated by the column head, a list of Zip Codes in the state in which at least one of the broadband connections reported in Part I is in service—except that the Zip Codes reported in column (g) should be the Zip Codes in the state in which the mobile wireless broadband service provider's service is advertised and available to actual and potential subscribers.

Column (j): If you file local telephone service information in Part II, Line II.A-1, you must provide a list of Zip Codes in the state in which you have end user customers for your voice telephone service. (See the definition of “voice telephone service,” above.) Providers of mobile telephony services that report data in Part III should not report this Zip Code information.

• March 1st of each year: providers must file data as of December 31 of the preceding year.

• September 1st of each year: providers must file data as of June 30 of the same year.

All filers must deliver to the FCC the signed, original paper copy of the Certification Statement. The Certification Statement is the single page that constitutes Section V of these instructions. Filers must deliver completed Form 477(s) to the FCC on electronic media. Paper copies of completed Form 477s may not be submitted. Acceptable electronic media are spreadsheet files attached to an e-mail message, or one or more IBM format compact discs or 3.5-inch floppy diskettes containing such files. The latter should be clearly labeled to identify contents by (at a minimum): FCC Form 477 (6/30/05 data), name of filer, and the states for which data are included. In all cases, filers should use up-to-date virus detection software to ensure that electronic media are virus-free.

Attention: The United States Postal Service (USPS) requires all First Class, Priority, and Express Mail addressed to the Zip Code in which the FCC Headquarters is located to be irradiated (cleaned) prior to delivery. Because irradiation can damage compact discs and floppy diskettes, filers are encouraged to submit Form 477 using one of the following three alternatives—preferably e-mail. (Use only one filing method; do not make duplicate filings. A filer who is unable to use one of the following delivery methods should contact the Industry Analysis and Technology Division, Wireline Competition Bureau, at (202) 418-0940 or via TTY at (202) 417-0484.)

E-mail: Filers are encouraged to deliver completed Form 477(s) as attachments to one or more e-mail messages sent to FCC477@fcc.gov. Filers submitting multiple files may use a zip utility to compress them. The subject field of the e-mail should contain the phrase: FCC Form 477 due 9/1/05. If multiple e-mails must be sent, the subject line should so indicate; for example: FCC Form 477 due 9/1/05 (message 1 of 3). Filers submitting Form 477(s) by e-mail may deliver the signed, original paper copy of the Certification Statement by USPS first-class mail addressed to: FCC FORM 477 (ATTN: WCB/IATD, Room 6-A220), Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. (Alternatively, filers may deliver the signed, original copy of the Certification Statement by one of the following methods.)

Overnight delivery service other than USPS Express Mail or Priority Mail: Compact discs, or floppy diskettes, containing completed Form 477(s)—accompanied by the signed, original copy of the Certification Statement—may be delivered by an overnight delivery service other than USPS Express Mail or Priority Mail ( e.g. , UPS, DHL, Federal Express). Such deliveries must be addressed and delivered to: FCC FORM 477 (ATTN: WCB/IATD, Room 6-A220), Federal Communications Commission, 9300 East Hampton Drive, Capitol Heights, MD 20743. Filers who want a confirmation of receipt may include a stamped, self-addressed envelope and a photocopy of the Certification Statement, which will be receipt-stamped and returned by mail.

Hand delivery or messenger delivery: Local hand and messenger deliveries directed to the Commission's Secretary are accepted at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. All Form 477 filing materials delivered to this location must be clearly identified to be re-directed to: FCC FORM 477 (ATTN: WCB/IATD, Room 6-A220).

You must file your local competition and broadband deployment data using the electronic version of Form 477 that is available at www.fcc.gov/formpage.html or by purchase from the FCC's duplicating contractor, Best Copy and Printing, Inc. at (202) 488-5300, facsimile (202) 488-5563, or through www.bcpiweb.com. Form 477 will be updated for each filing round, and filers must obtain the latest version for each filing period. Filers should also obtain the latest version of Instructions for Form 477.

The electronic version of Form 477 is provided in Excel 2002 format. It contains drop-down boxes and some edit checks. Once you complete a filing, name the file in accordance with instructions provided below.

Each file name must adhere to the following convention: SST#Hyearname.xls, where:

SS is the two letter post office abbreviation for the state.

T is a single character that indicates whether the file contains incumbent LEC (ILEC) data or non-ILEC data (which must be filed separately) and whether the file contains revised data. Select the appropriate code from the following list:

# is a “sequence number” ( i.e. , 1, 2, 3, etc.) to be used to differentiate what would otherwise be identically named files when the file names are constructed according to the convention specified here. If no such redundancy of file names occurs, use the number “1” in place of the character “#”.

H is the half of the year of the data being filed. Use: “J” for data as of June 30; “D” for data as of December 31.

year is the last two digits of the year of the data being filed ( e.g. , for the filing due September 1, 2005, reported data will be as of June 30, 2005, so 2005 = 05).

name is the company name identified on Line 1 of the Cover Page of Form 477.

Example: NCB1J05BellSouth.xls

Filers must submit the original, signed paper copy of the Certification Statement (which is the single page that constitutes Section V of these Instructions). The Certification statement must be signed in ink by an officer of the filer of one of the legal entities whose data is included. An officer is a person who occupies a position specified in the articles of incorporation (or partnership agreement), and would typically be president, vice president for operations, vice president for finance, comptroller, treasurer or a comparable position. If the filer is a sole proprietorship, the owner must sign the certification.

Filers may submit a request that information on Form 477 not be made routinely available for public inspection by so indicating on Line 8 of the Cover Page of the form and on the Certification Statement. See also 47 CFR 0.457, 0.459, 1.7001(d), 43.11(c); Examination of the Current Policy Concerning the Treatment of Confidential Information Submitted to the Commission , FCC 98-184 (rel. Aug. 4, 1998).

Filers must submit a revised form if the filer discovers a significant error in the data. For counts, a difference amounting to 5 percent of the filed number must be re-filed. For percentages, a difference of 5 percentage points is significant and must be re-filed. Revisions should consist of a certification statement and one or more electronic files. Carriers should re-file all data for a state if one or more data element must be revised. A re-filed Form 477 spreadsheet should contain all appropriate data for the state, not just the corrected figures. Note that files containing revisions must be given different names from the original filings, as specified above, Section IV.B.1 of these instructions.

Service providers that are required to file the Form 477 but fail to do so may be subject to enforcement action under sections 502 and 503 of the Communications Act and any other applicable law, 47 U.S.C. 502, 503.

The following selected terms are noted on FCC Form 477. The filer must interpret these terms in the specific context of the detailed reporting instructions, above. All terms are as defined for the specific purposes of this information collection.

Broadband connections: Lines (or wireless channels) that terminate at an end user location and enable the end user to receive information from and/or send information to the Internet at information transfer rates exceeding 200 kilobits per second (kbps) in at least one direction.

End user: Residential, business, institutional and government entities who use services for their own purposes and who do not resell such services to other entities. For purposes of Part I of Form 477, an Internet Service Provider (ISP) is not an “end user” of a broadband connection.

Facilities-based broadband provider: A provider of broadband connections to end user locations that owns the portion of the physical facility that terminates at the end user location, obtains unbundled network elements (UNEs), special access lines, or other leased facilities that terminate at end user locations and provisions/equips them as broadband, or provisions/equips broadband wireless channels to end user location over licensed spectrum or over spectrum that the provider uses on an unlicensed basis.

Local loop: For purposes of this data collection, the “last mile” facilities (either wired facilities or the wireless equivalent) between a central office and the end user premises in a telephone network, a node and the end user premises in a cable network, or the analogous portion of the facilities of other providers of telephone service or broadband connections.

Own local loop facilities: Those wired local loop facilities that the filer (including affiliates) actually owns as well as facilities that the filer obtains the right to use from unaffiliated entities as dark fiber or satellite transponder capacity (and that the filer uses as part of its own system). Also, for purposes of Part I of Form 477, broadband wireless connections to end user locations that the filer provisions/equips as broadband over licensed spectrum or over spectrum that the filer uses on an unlicensed basis. For the purposes of Part I of Form 477, this term does not include unbundled network elements (UNEs), special access lines, or other leased lines that the filer obtains from an unaffiliated entity and equips as broadband.

Residential broadband connection: For the purposes of Part I of Form 477, broadband connections of a type (as indicated by, e.g. , price, “speed,” or other features) that is primarily purchased by, designed for, and/or marketed to residential end users.

Residential end user premises: Residential living units ( e.g. , single family dwellings and individual households in multiple dwelling units such as apartments, condominiums, mobile home parks, etc.) and also individual living units in such institutional settings as college dormitories and nursing homes. Also includes other end user locations to which you (including affiliates and agents) market broadband services that are primarily designed for residential use.

Default interstate long distance carrier: The (facilities-based or reseller) carrier to which an interstate long distance call is routed automatically, without the use of any access code by the end user.

End user: Residential, business, institutional and government entities who use services for their own purposes and who do not resell such services to other entities.

Local loop: See the definition provided for Part I, above.

Own local loop facilities: Those wired local loop facilities that the filer (including affiliates) actually owns as well as facilities that the filer obtains the right to use from unaffiliated entities as dark fiber or satellite transponder capacity (and that the filer uses as part of its own system). Also, for purposes of Part II of Form 477, fixed wireless voice-grade channels to end user locations that the filer provisions/equips over licensed spectrum or over spectrum that the filer uses on an unlicensed basis. For the purposes of Part II of Form 477, the term does not include voice-grade channels to end user premises that the filer provisions over UNE loops, special access lines, or other leased lines that the filer obtains from an unaffiliated carrier.

Residential lines: Lines provided to residential end user premises. Also includes any lines the filer provides to a shared-tenant service provider in an apartment building or similar residential setting.

UNE-Platform: The combination of unbundled network elements (UNEs) consisting of loop UNE, switching UNE, and transport UNE. (Unbundled network elements are defined in the FCC Rules. See 47 CFR 51.319.)

Voice-grade equivalent: Generally, the number of DS0 (64 kbps) lines/channels in a higher-capacity circuit. In the specific context of Part II of Form 477, see “Note for reporting channelized service” in the detailed instructions, above.

Voice telephone service: Local exchange or exchange access services that allow end users to originate and/or terminate local telephone calls on the public switched network, whether used by the end user for voice telephone calls or for other types of calls carried over the public switched network (for example, lines connected to facsimile equipment or lines used occasionally or exclusively for “dial-up” connection to the Internet).

Mobile voice telephony subscribers: A mobile handset, car-phone, or other revenue-generating, active, voice unit that has a unique phone number and that can place and receive calls from the public switched network.

Own facilities: Spectrum for which the filer (including affiliates) holds a license, manages, or has obtained the right to use via lease or other agreement with a Band Manager.

The Privacy Act of 1974 and the Paperwork Reduction Act of 1995 require that when we ask you for information, we must first tell you our legal right to ask for the information, why we are asking for it, and how it will be used. We must also tell you what could happen if we do not receive it and whether your response is voluntary, required to obtain a benefit, or mandatory under the law. See Privacy Act of 1974, Pub. L. 93-579, December 31, 1974, 5 U.S.C. 552a(e)(3), and the Paperwork Reduction Act of 1995, Pub. L. No. 104-13, 44 U.S.C. 3501, et seq.

Our legal right to ask for this information is § 1.7000-1.7002, 20.15, 43.01, 43.11 of the Commission's rules. 47 CFR 1.7000-1.7002, 20.15, 43.01, 43.11. Your response is mandatory.

This collection of information stems from the Commission's authority under sections 4(i), 201, 218-220, 251-252, 303(r), 332, and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 201, 218-220, 251-252, 303(r), 332, and 403, and section 706 of the Telecommunications Act of 1996. The data in the worksheet will be used to monitor the deployment of broadband services and the development of local telephone service competition. Selected information provided in the worksheet will be made available to the public in a manner consistent with the Commission's rules and orders.

We have estimated that each response to this collection of information will take, on average, 10 hours. Note that many companies will file multiple responses and that this estimated average reflects the fact that many companies will be required to file only a single service count that should be readily available from internal company records. Our estimate includes the time to read the instructions, look through existing records, gather and maintain the required data, enter the data in a Form 477 spreadsheet, prepare a floppy diskette or compact disc (if the filer decides to submit completed Form 477(s) by a method other than e-mail) and certification, and actually file the report. If you have any comments on this estimate, or how we can improve the collection and reduce the burden it causes you, please write the Federal Communications Commission, AMD-PERM, Washington, DC 20554, Paperwork Reduction Project (3060-0816). We also will accept your comments via the Internet if you send them to Judith-B.Herman@fcc.gov. Do not send completed FCC Form 477 to this address. Remember—You are not required to respond to a collection of information sponsored by the Federal government, and the government may not conduct or sponsor this collection, unless it displays a currently valid Office of Management and Budget (OMB) control number. This collection has been assigned an OMB control number of 3060-0816.

The Commission is authorized under the Communications Act of 1934, as amended, to collect the personal information we request in this form. If we believe there may be a violation or potential violation of a statute or a Commission regulation, rule, or order, your filing may be referred to the Federal, state, or local agency responsible for investigating, prosecuting, enforcing, or implementing the statute, rule, regulation, or order. In certain cases, the information in your worksheet may be disclosed to the Department of Justice, court, or other adjudicative body when (a) the Commission; or (b) any employee of the Commission; or (c) the United States government, is a party to a proceeding before the body or has an interest in the proceeding.

Reporting entities failing to file Form 477 in a timely fashion may be subject to penalties under the Communications Act, including sections 502 and 503(b).

This is a summary of the Commission's Seventh Report and Order , ET Docket No. 00-258 and WT Docket No. 02-8, FCC 04-246, adopted October 14, 2004, and released October 21, 2004. The full text of this Commission decision is available on the Commission's Internet site at www.fcc.gov. It is available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., Room CY-B402, 445 12th Street, SW., Washington, DC 20554. Alternate formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365.

1. In the Seventh Report and Order (7th R&O), we undertook a narrow and specific task—the reaccommodation of Federal Government users in order to make the 1710-1755 MHz band available for AWS use. However, the decisions we made are part of a larger and substantially more complex proceeding. The quest to make spectrum available for a variety of new and innovative wireless services has involved a variety of bodies, including this Commission, Federal Government stakeholders as represented through NTIA, and Congress.

2. In the Omnibus Budget Reconciliation Act of 1993 (“OBRA-93”), Congress directed the Secretary of Commerce to identify at least 200 megahertz of spectrum below 5 GHz for transfer to non-Federal Government services. NTIA identified 235 megahertz, including the bands 1710-1755 MHz and 2390-2400 MHz, for such transfer. At that time, the band 1710-1755 MHz, which was a Federal Government exclusive band, was to be reallocated as a mixed-use band. Specifically, Federal Government use of the band 1710-1755 MHz was to remain protected indefinitely at 333 fixed microwave stations used by Federal power agencies, as required by 47 U.S.C. 923(c)(4), and would additionally be protected indefinitely at 111 stations used for aviation-related safety communications and at 16 sites used by DOD for fixed point-to-point microwave, tactical radio relay, aeronautical mobile stations, etc.

3. The Report and Order accomplishes two main tasks. First, we allow Federal Government users access to new frequencies—generally grouped into frequencies in the band 2025-2110 MHz (“2 GHz”) and frequencies in the band 2360-2400 MHz—that will allow Federal users to relocate existing operations in such a way that will ultimately free spectrum for these users to relocate operations from the 1710-1755 MHz band. Second, we address the relocation procedures and policies that are necessary to make these relocations of Federal Government users possible.

4. Specifically, the 7th R&O adopts the following spectrum allocation decisions:

5. DOD Co-Primary Use of 2 GHz Band . We adopted, with minor changes, the proposals for the 2 GHz band set forth in the AWS Fourth NPRM. In so doing, we recognize the concerns of the broadcasting community that sharing of that band by TV Broadcast Auxiliary Service (“BAS”) stations and DOD TT&C uplink earth stations will be challenging in some instances. However, we are confident that such sharing is feasible and will promote the public interest, particularly in the ultimate provision of AWS to the public, provided that coordination procedures adequate to the protection of both incumbent BAS stations and DOD TT&C uplink earth stations are imposed. In this regard, we are maintaining in the 2 GHz band our longstanding policy that first-licensed facilities have the right of protection from later-licensed facilities operating in the same band. This means that a new DOD TT&C uplink earth station seeking to operate at 2 GHz must coordinate with all BAS stations that may be affected by the new earth station's operation. To ensure that the right of protection of first-licensed facilities is adequately maintained, we conclude that it is necessary to ensure that not too long a period of time elapses between the authorization and the commencement of operations of a DOD TT&C uplink earth station at 2 GHz. Thus, DOD must coordinate facilities at the 11 sites only when construction and/or implementation are anticipated, and prior to authorization. To ensure that such coordination occurs successfully, prior to authorization, DOD must coordinate the DOD TT&C uplink earth station with all potentially affected incumbent BAS, Cable Television Relay Service (“CARS”), and Local Television Transmission Service (“LTTS”) licensees of stations within the coordination contour of the earth station, consistent with Appendix 7 of the ITU Radio Regulations, and engage the local BAS frequency coordinator(s), where available, in support of achieving such coordination. DOD, at the time it submits its application for the authorization of a 2 GHz earth station to the Commission through NTIA's Frequency Assignment Subcommittee (“FAS”), must provide, with its application, a list of the entities with which coordination was undertaken. For those rare situations where no reasonable coordination can be negotiated, the issue may be raised to the FCC and NTIA to jointly arbitrate resolution. We will not concur with authorizing operation of any 2 GHz DOD TT&C uplink earth station in the absence of successful coordination between DOD and the affected BAS incumbents. Once the DOD TT&C uplink earth station has begun coordination, new BAS, CARS, and LTTS stations for which coordination begins later must accept interference from the DOD earth station, as is normally the case for new stations sharing spectrum on a co-primary basis. Finally, to ensure that future BAS, CARS, and LTTS licensees have a means for coordinating their proposed operations with the DOD TT&C uplink earth station, DOD earth stations must maintain a point of contact for coordination.

6. Accordingly, we adopted revisions generally as proposed for footnote US346. Additionally, we have corrected some of the geographic coordinates for the 11 DOD earth stations, originally listed in proposed footnote US346, and we have made several editorial changes to the footnote.

7. We acknowledge that recent data supplied by the Society of Broadcast Engineers, Inc. (“SBE”), indicate that there may be a significant potential for interference from DOD TT&C earth stations at the 11 sites that may use the 2 GHz band into 2 GHz fixed receive-only receivers used in connection with BAS electronic newsgathering (“ENG”) mobile TV pick-ups (“TVPUs”). However, as indicated in the AWS Fourth NPRM , sharing techniques currently exist that should enable 2 GHz earth stations to be engineered into the 11 sites without harming existing BAS operations. We also acknowledge that some sharing situations will be difficult and may require more restrictive techniques, such as limiting power, limiting the pointing direction and elevation of the DOD earth station, constructing berms or installing RF shielding, arranging time-sharing agreements for DOD use during off-peak hours when TV BAS use is at a minimum, and other mitigation techniques. Nonetheless, because these techniques, together with coordination with potentially affected licensees, can facilitate implementation of the DOD TT&C earth stations at the 11 sites, we see no insurmountable technical obstacles that would prevent us from implementing the proposed 2 GHz allocation.

8. We also observe that, as noted by Motorola, interference to 2 GHz TV BAS stations from DOD earth stations will not be an immediate issue because DOD satellites incorporating those frequencies will not be available for at least several years. Further, to ensure mission success, NTIA anticipates that new satellites will be built with dual tracking and command frequencies, i.e. , in both the band 1761-1842 MHz and the 2 GHz band. As DOD gains experience with TT&C operations in the 2 GHz band, use of the band 1761-1842 MHz for TT&C is expected to be reduced, but DOD requirements in that band may exist until the year 2030. Therefore, initial DOD use of the 2 GHz band is not expected to involve either immediate or full relocation of the current systems. However, enabling relocation of DOD operation from the band 1761-1842 MHz to the 2 GHz band will over time allow DOD the flexibility to accommodate additional systems in the band 1755-1850 MHz. Finally, DOD may choose not to use the 2 GHz band for some of its 11 existing sites that currently operate in the band 1761-1842 MHz due to coordination difficulties with incumbent operations.

9. Additionally, we observe that, by the time DOD earth stations begin to use the 2 GHz band, total or near-total conversion to digital BAS operations is likely to have occurred. That conversion promises to significantly reduce the potential for interference to BAS receivers because the digital technology to be used for BAS is far more robust than analog technology against undesired signals. As noted by SBE, use of digital technology by BAS licensees may permit the BAS desired/undesired (“D/U”) ratio to be relaxed by several orders of magnitude in some cases. While it is not possible to precisely forecast when digital BAS operations will be used in a particular geographic area, it is also not possible to precisely forecast when a DOD earth station may begin to use 2 GHz frequencies in that area. Given the uncertain timeframe for DOD implementation of the 2 GHz allocation for the 11 sites, possibly extending many years into the future, it may be appropriate for us to establish the specifics of a coordination process that will accommodate future developments, such as the digital conversion of BAS operations.

10. With regard to the specific concern of Gannett Co., Inc. (“Gannett”), about the DOD site at Buckley AFB, CO, we will not impose a priori conditions that would restrict DOD's options at that site. We find that requiring coordination to protect incumbent operations and maintaining flexibility on specific technical requirements will allow the spectrum sharing situation to be customized to meet the requirements at the time when DOD needs to use this spectrum.

11. Regarding the technical characteristics of the DOD TT&C operations, we observe that NTIA has updated the NTIA Manual to require that DOD TT&C earth stations operating in the band 2025-2110 MHz conform to operational limits specified in the ITU Radio Regulations for that band. These limits require that an earth station not transmit until the mainbeam of its antenna is pointing at least 3° above the horizon, unless affected parties have agreed to a lower elevation angle. In addition, we observe that NTIA has adopted the ITU limit on the effective isotropic radiated power (“EIRP”) transmitted in any direction towards the horizon by an earth station. Specifically, these limits require that an earth station be:

(1) Limited to an EIRP of 40 dBW at a 0° elevation angle, in any 4 kHz band;

(2) Permitted to increase its EIRP to 40 dBW plus 3 times their elevation angle between 0-5°, in any 4 kHz band;

(3) Unlimited in EIRP at elevation angles above 5°; and

(4) Restricted from exceeding these EIRP limits by more than 10 dB.

12. Adjacent Band Services . We reject the suggestion of Cingular Wireless LLC (“Cingular”) that DOD operations be limited to the central portion of the 2 GHz band because we find that it is technically feasible for those operations to use the entire band without causing interference to adjacent band fixed and mobile services. In this regard, we find that techniques such as power control, operation of earth stations at higher elevation angles, baseband filtering, berms or RF shielding, and other techniques, as well as frequency offsets, can mitigate interference from 2 GHz DOD earth stations to adjacent band fixed and mobile services at 1930-2025 MHz and 2110-2155 MHz. We also reject the recommendations of Motorola, Inc. (“Motorola”), that we add AWS in the upper adjacent band 2110-2120 MHz to the list of services that require coordination in footnote US346, or increase out-of-band emission (“OOBE”) limits for DOD 2 GHz earth stations. NTIA and DOD state that DOD 2 GHz earth stations' compliance with the OOBE limits in the NTIA Manual should provide adequate protection to out-of-band users. However, we recognize the likelihood that a variety of factors—such as high power operation on a frequency close to the adjacent band, combined with a momentarily low beam elevation angle to acquire or maintain communications with a non-geostationary satellite orbit (“NGSO”) satellite as it passes through elevation angles just above the horizon in a certain direction—may occur, increasing the potential for interference to AWS users in that direction. We accept NTIA's and DOD's position that additional measures will not generally be needed. However, we expect that DOD will be cognizant of the potential for interference into AWS operations in the adjacent band 2120-2155 MHz and take appropriate steps to control such interference for specific situations at DOD TT&C earth stations. In this regard, we note that the same measures exercised by the DOD 2 GHz earth station to protect BAS facilities, such as maintaining high elevation angles and erecting berms as described, should similarly mitigate against adjacent band interference with AWS operating in the same areas. We will address protection of new services in the lower adjacent band 2020-2025 MHz, which has been allocated for use by Fixed and Mobile services on a primary basis, in a future decision.

13. Finally, with regard to the potential for 2 GHz DOD earth stations to cause overload interference to adjacent band receivers, we recognize this potential but note that at present it is unclear what type of receivers will be used in these adjacent bands when DOD transmitters commence operations in several years. Further, as suggested by Cingular, the record in this proceeding is not sufficiently developed to warrant the adoption of receiver interference immunity standards at this time. However, we urge industry to contemplate the future development of such standards and will revisit this issue if the situation warrants.

14. Secondary DOD Use of 2 GHz Band. We find that permitting DOD to operate 2 GHz stations in the fixed and mobile except aeronautical mobile services on a secondary basis at six sites is in the public interest. These sites are all at remote locations in the southwestern United States and can operate without hindering 2 GHz BAS fixed and mobile operations. We are adopting Motorola's recommendation that we modify the wording of our proposed new footnote to clarify the status of the military operations and make some other minor editorial changes to the footnote.

15. EESS Use of 2 GHz Band. We are not requiring DOD to frequency coordinate its new 2 GHz uplink earth stations with existing 2 GHz EESS uplinks that operate under US347. While we concur with Space Imaging LLC that it and other commercial remote-sensing operators use the 2 GHz band for important purposes, their operations are on a non-interference basis, and such users of a frequency band do not have the right to be protected from interference caused by new, primary users of that same band. However, we urge DOD, prior to commencing 2 GHz operations, to consult with remote-sensing licensees that operate under US347. We observe that it is in DOD's self-interest to do so because these remote sensing licensees perform significant defense and intelligence work.

16. We are adopting our proposals for the band 2360-2400 MHz. Commenters generally support these proposals and we find that their adoption will play a major role in facilitating the introduction of AWS by permitting DOD to relocate essential aeronautical mobile systems to the band 2360-2395 MHz from the band 1710-1755 MHz. With regard to the concerns voiced by the Aerospace and Flight Test Radio Coordinating Council (“AFTRCC”), that new amateur use of the band 2390-2395 MHz should be precluded and existing amateur use of that band should be grandfathered, we decline to adopt such measures. We believe that shared use should not impose an undue constraint on either service. Amateur access to the band on a primary basis was established relatively recently—in 1995—and we note that amateur use of the band appears to be relatively light. Moreover, aeronautical mobile use of the band will likely be predominantly at remote facilities. We also will not impose coordination requirements between amateur and aeronautical flight testing operations. We observe that the potential for interference from amateur operations, even directional point-to-point operations, to flight testing operations, would be small, due to the high altitudes of aeronautical mobile flight testing transmitters, and the correspondingly high elevation and off-axis attenuation of high gain flight testing receive antennas on the ground. Although, as noted by AFTRCC, low antenna elevation angle and off-axis attenuation of flight testing receive antennas, and line-of-site conditions, could occur, and thus we cannot rule out the possibility of interference to flight testing from amateur operations, we believe the likelihood of such an occurrence is limited by the remoteness of flight testing facilities, and the relatively light use of the band 2390-2395 MHz band by amateurs. Also, as indicated by the current lack of agreement regarding coordination between the National Association for Amateur Radio (also known as the American Radio Relay League or “ARRL”) and AFTRRC, and especially given the flexibility of amateurs to operate without specific station authorization or registration on the Commission's database, it appears impractical to establish an effective coordination requirement at this time. We also conclude that, because most flight testing is conducted at high altitudes with low output power at remote facilities, the reverse potential for interference from flight testing operations into amateur operations is also small. Therefore, we will not require that flight testing operations be coordinated with amateur operations. Recognizing that this is a unique approach to shared use of the band, in the unlikely event that interference occurs to either flight testing or amateur operations, we expect that both parties will work together to identify and resolve the interference or find a mutually acceptable solution. Should these efforts not succeed, the matter should be referred to the FCC or NTIA for resolution.

17. We decline to adopt the recommendation of Sirius Satellite Radio Inc. and XM Radio, Inc. (“Sirius/XM”), that all new Government and non-Government aeronautical mobile operators in the band 2360-2395 MHz meet the OOBE limits that apply to WCS licensees at 2305-2320/2345-2360 MHz to protect Satellite Digital Audio Radio Service (“DARS”) receivers in the band 2320-2345 MHz from interference. We find those limits to be inappropriate for aeronautical mobile services at 2360-2395 MHz. It is extremely unlikely that aeronautical mobile transmitters would be in close enough proximity to Satellite DARS receivers so as to create a potential for harmful interference to those receivers. In this regard, we observe that aeronautical mobile operations will not be widespread and will often occur in the vicinity of test ranges. Thus, it is expected that there normally would be large separation distances between aeronautical mobile transmitters and Satellite DARS receivers. We also observe that Satellite DARS signal strength is generally sufficiently high to overcome potential interference from aeronautical mobile transmitters even in an unusual case where the DARS receiver is relatively close to the aeronautical transmitter. Further, Sirius/XM have provided no analysis or other information demonstrating that tighter emission limits are necessary to ensure that spurious emissions from aeronautical transmitters do not cause harmful interference to Satellite DARS receivers. We find that Sirius/XM have not established any basis or need for applying the WCS OOBE limits to aeronautical mobile services at 2360-2395 MHz. Accordingly, we will apply the OOBE limits specified in § 87.139 of our Rules to aeronautical mobile operations in the band 2360-2395 MHz.

18. Finally, no commenting party opposed the removal of the WCS from the band 2385-2390 MHz or UPCS from the band 2390-2400 MHz. Therefore, we adopt those proposals to help clear the spectrum for new uses.

19. Accordingly, as proposed in the AWS Fourth NPRM , we adopt footnote US276 to clearly indicate the allocations for the band 2360-2395 MHz.

20. In Appendix A to the AWS Fourth NPRM , we proposed changes to §§ 15.301, 15.303, 15.319, and 15.321 of our Rules. In those proposed rule sections, we erroneously deleted references to the asynchronous 1910-1920 MHz portion of the greater 1910-1930 MHz UPCS band. In the interim, in the 800 MHz/Nextel Order , we have adopted rules redesignating the 1910-1915 MHz lower half of the 1910-1920 MHz band for Nextel. We have also adopted rules redesignating the 1915-1920 MHz upper half of the 1910-1920 MHz band, See AWS 6th R&O , 69 FR 62615, October 27, 2004. The UPCS rules we adopt reflect those decisions.

21. As required by the Regulatory Flexibility Act (“RFA”), 1 an Initial Regulatory Flexibility Analysis (“IRFA”) was incorporated in the Fourth Notice of Proposed Rule Making (“AWS Fourth NPRM”) in this proceeding. The Commission sought written comment on the proposals in the AWS Fourth NPRM , including comments on the IRFA. 2 The present Final Regulatory Flexibility Analysis (“FRFA”) conforms to the RFA.

22. In this Seventh Report and Order, we allow the Department of Defense (“DOD”) to use the band 2025-2110 MHz (“2 GHz”) on a co-equal, primary basis with non-Federal Government operations for DOD earth stations at 11 sites that support DOD space operations. DOD access to the 2 GHz band may make more spectrum available in the band 1755-1850 MHz for absorbing certain DOD systems displaced from the band 1710-1755 MHz. In addition, we permit the DOD to operate stations in the fixed and mobile services in the 2 GHz band on a secondary (non-interference) basis at six sites in the southwestern region of the United States.

23. We also make numerous allocation changes to the band 2360-2400 MHz, the most significant of which rescinds the recent establishment of Wireless Communications Services at 2385-2390 MHz, allows Federal and non-Federal Government flight test stations to operate in the band 2385-2395 MHz, and no longer permits the band 2390-2400 MHz to be used by Unlicensed Personal Communications Services (“UPCS”) applications. These allocation changes permit DOD to relocate all aeronautical mobile systems out of the band 1710-1755 MHz, which is a major objective for facilitating the introduction of Advanced Wireless Services (“AWS”). In addition, these allocation changes provide needed replacement spectrum for use by DOD and commercial flight test stations, which recently lost access to the 35 megahertz of spectrum at 1525-1535 MHz and 2320-2345 MHz. Thus, these actions are a significant step forward toward the introduction of AWS while ensuring that the provision of important military services is not compromised.

24. We received no comments directly in response to the IRFA. We did, however, consider the potential impact of the proposed rules on smaller entities, and conclude that any impact will not be adverse. While new DOD use of the 2 GHz band will require coordination between DOD and existing TV Broadcasting Auxiliary Services (“BAS”) licensees, the burden will be on DOD to demonstrate that its new use can be accomplished on a non-interference basis.

25. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”  3 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 4 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). 5

26. A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.”  6 Nationwide, there are approximately 1.6 million small organizations. 7 “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.”  8 As of 1997, there were approximately 87,453 governmental entities in the United States. 9 This number includes 39,044 county governments, municipalities, and townships, of which 37,546 (approximately 96.2%) have populations of fewer then 50,000 and 1,498 have populations of 500,000 or more. Thus, we estimate the number of small governmental jurisdictions overall to be approximately 84,098 or fewer.

27. In the 2 GHz band, the rules adopted in this Report and Order affect licensees in the Television BAS, the Local Television Transmission Service (“LTTS”), and the Cable Television Relay Service (“CARS”).

BAS . This service uses a variety of transmitters to relay broadcast programming to the public (through translator and booster stations) or within the program distribution chain (from a remote news gathering unit back to the stations). There are approximately 712 TV BAS licensees in the 1990-2110 MHz band, and these licensees will ultimately be required to use only the 2 GHz portion of that band. 10 It is unclear how many of these will be affected by our new rules.

The Commission has not developed a definition of small entities specific to BAS licensees. The U.S. Small Business Administration (SBA) has developed small business size standards, as follows: For TV BAS, we use the size standard for Television Broadcasting, which consists of all such companies having annual receipts of no more than $12.0 million. 11 According to Census Bureau data for 1997, there were 906 Television Broadcasting firms, total that operated for the entire year. 12 Of this total, 734 firms had annual receipts of $9,999,999.00 or less and an additional 71 had receipts of $10 million to $24,999,999.00. 13 Thus, under this standard, the majority of firms can be considered small.

CARS. There are nine CARS mobile licensees in the 1990-2110 MHz band, and these licensees will ultimately be required to use only the 2 GHz portion of that band. 14 It is unclear how many of these will be affected by our new rules. The SBA has developed a small business size standard for Cable and other Program Distribution, which consists of all such companies having annual receipts of no more than $12.5 million. 15 According to Census Bureau data for 1997, there were 1,311 firms within the industry category Cable and Other Program Distribution, total, that operated for the entire year. 16 Of this total, 1,180 firms had annual receipts of $9,999,999.00 or less, and an additional 52 firms had receipts of $10 million to $24,999,999.00. 17 Thus, under this standard, the majority of firms can be considered small.

LTTS. There are 34 LTTS licensees in the 1990-2110 MHz band, and these licensees will ultimately be required to use only the 2 GHz portion of that band. 18 It is unclear how many of these will be affected by our new rules. The Commission has not yet defined a small business with respect to local television transmission services. For purposes of this FRFA, we will use the SBA's definition applicable to Cellular and Other Wireless Telecommunications— i.e. , an entity with no more than 1,500 persons. 19 According to Census Bureau data for 1997, there were 977 firms in this category, total, that operated for the entire year. 20 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. 21 Thus, under this size standard, the majority of firms can be considered small.

In the band 2360-2390 MHz, the rules adopted in this Report and Order are not expected to impact licensees of flight test stations, except to provide those licensees continued access to the sub-band 2385-2390 MHz. That is, Federal and non-Federal Government licensees of flight test stations have long shared the band 2360-2390 MHz and our new rules essentially return the sub-band 2385-2390 MHz to its state prior to reallocation. The additional flexibility given to Federal Government users is not expected to impact licensees of flight test stations because this use would be on a secondary basis.

In the band 2390-2400 MHz, the rules adopted in this Report and Order are not expected to greatly impact licensees in the amateur service. Federal and non-Federal Government use of the band 2390-2395 MHz is expected to occur at only a limited number of aeronautical telemetry ranges in remote areas. We have reviewed our files and have found that no unlicensed PCS device has been authorized in the band 2390-2400 MHz.

28. The new rules require that DOD coordinate a request for use of frequencies in the 2 GHz band prior to submitting an application to the Commission through the Frequency Assignment Subcommittee of the Interdepartment Radio Advisory Committee of the National Telecommunications and Information Administration. Commission licensees may choose to conduct studies or incur other expenses during the coordination process. 22 This will entail costs typically associated with the coordination process. In addition, we observe that DOD will be the party initiating coordination.

29. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (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. 23

30. We are requiring that the 11 DOD earth stations that will operate in the 2 GHz band prior coordinate their frequency use with existing TV BAS licensees. Such a requirement will ensure that these earth stations operate in a manner that minimizes the potential of causing harmful interference. This action is expected to protect incumbent BAS, LTTS, and CARS systems from service disruptions caused by receiving harmful interference. Some commenters recommended that we not relocate these earth stations to the 2 GHz band, 24 but we find that such relocation will not adversely impact incumbents and is essential to facilitate the introduction of AWS.

31. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

32. Pursuant to Sections 1, 4(i), 7(a), 302(a), 303(f), and 303(g) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 157(a), 302(a), 303(f), and 303(g), this Seventh Report and Order IS ADOPTED and that parts 1, 2, 15, 27, 87, and 97 of the Commission's Rules ARE AMENDED as specified in rules section, effective 30 days after publication in the Federal Register.

33. The Commission will send a copy of the Seventh Report and Order including FRFA, in a report to be sent to Congress and the Government Accountability Office (GAO) pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

This is a summary of the Commission's Order on Reconsideration in CC Docket No. 01-338, CC Docket No. 96-98, and CC Docket No. 98-147; FCC 04-248, adopted October 14, 2004, and released October 18, 2004. The full text of this document may 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, or via e-mail http://www.bcpiweb.com . It is also available on the Commission's website at http://www.fcc.gov . The complete text of this Order on Reconsideration 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. Further information may also be obtained by calling the Wireline Competition Bureau's TTY number: (202) 418-0484.

1. In the Triennial Review Order , 68 FR 52276, September 2, 2003, the Commission adopted rules pursuant to section 251 of the 1996 Act, requiring incumbent local exchange carriers (LECs) to make elements of their local network available to competitors on an unbundled basis. The Triennial Review Order imposed only limited unbundling obligations with respect to incumbent LECs' broadband loops. In USTA v. FCC , 359 F.3d 554 (D.C. Cir. 2004) ( USTA II ), the D.C. Circuit recently upheld these rules. The Commission granted the greatest unbundling relief for dark or lit fiber loops serving mass market customers that extend to the customer's premises (known as fiber-to-the-home or FTTH loops) in new build or “greenfield” situations. For those loops, the Commission determined that no unbundling is required. However, where a FTTH loop is deployed in overbuild, or “brownfield,” situations, the Commission determined that incumbent LECs must either provide unbundled access to a 64 kbps transmission path over the fiber loop or unbundled access to a spare copper loop.

2. In this Order, the Commission concludes that it is appropriate to apply the FTTH rules to FTTC loops, as well. With respect to new FTTC deployments (“greenfield” deployments), the Commission finds that competitive LECs face similar barriers to deployment as incumbent LECs. In the Triennial Review Order , the Commission found that entry barriers for FTTH deployments were largely the same for incumbent and competitive carriers. The Commission finds that this conclusion remains valid regardless of the loop technology deployed, and thus equally applies to greenfield deployments of FTTC loops. However, the Commission also finds that just as overbuild FTTH deployments “merit[] slightly different treatment than greenfield FTTH deployments,” so, too, do overbuild FTTC deployments. Thus, in the overbuild context, the Commission finds that competitive LECs face impairment to a limited extent, and requires that competitive LECs should have continued access to either a copper loop or a 64 kbps transmission path in those situations.

3. Second, the Commission utilizes its discretion under the section 251(d)(2) “at a minimum” authority to consider the statutory goals of section 706 which requires the Commission to encourage the deployment of advanced telecommunications capability to all Americans. The Commission concludes that subjecting FTTC loops to the same unbundling framework adopted for FTTH loops furthers the goals of section 706. The Commission finds that the record in this case demonstrates that further reducing the unbundling obligations associated with FTTC loops would eliminate disincentives to invest in broadband facilities and, therefore, furthers section 706's goals. The Commission, therefore, reconsiders its determination in the Triennial Review Order that FTTC loops should be characterized as hybrid loop architecture for the purpose of the unbundling regulations, and revises its broadband loop unbundling rules to regulate FTTC loops in the same manner as adopted for FTTH loops in the Triennial Review Order .

4. This Order tailors unbundling relief by defining a FTTC loop as a fiber transmission facility connecting to copper distribution plant that is not more than 500 feet from the customer's premises, and further specifying that the fiber transmission facility in a FTTC loop must connect to copper distribution plant at a serving area interface from which every other copper distribution subloop also is not more than 500 feet from the respective customer's premises.

5. Petitions by BellSouth and SureWest also sought clarification whether the Commission's existing unbundling rules require incumbent LECs to build time division multiplexing (TDM) capabilities into networks at the request of competitive LECs. Consequently, this Order clarifies that incumbent LECs are not required to add TDM capabilities into new packet-based networks or into existing packet-based networks that never had TDM capability. In addition, the Order also clarifies that where an incumbent LEC has deployed new FTTH or FTTC loops using packet-based equipment, and they nevertheless need to hand off a signal to some customers in TDM format in order to be compatible with an end user's customer premises equipment, this “TDM handoff” does not change the scope of unbundling relief.

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

7. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM . 67 FR 1947, January 15, 2002. The Commission sought written public comment on the proposals in the NPRM , including comment on the IRFA. In the Triennial Review Order , the Commission issued a Final Regulatory Flexibility Analysis (FRFA) addressing comments submitted with regard to the IRFA. This present Order addresses issues raised by two petitions for reconsideration of the Triennial Review Order . Specifically, the Order modifies the unbundling rules governing fiber-to-the-curb (FTTC) loops in response to a petition from BellSouth. The Order also clarifies existing rules regarding network modifications in response to petitions from BellSouth and SureWest. This present Supplemental FRFA (Supplemental FRFA) conforms to the RFA.

8. Need for, and Objectives of, the Rules . In response to BellSouth's petition for reconsideration of the Triennial Review Order , this Order promotes investment in broadband facilities through the implementation of the unbundling requirements of section 251 of the Act. Specifically, the Order concludes that the fiber-to-the-home (FTTH) rules, which relieve the incumbent LECs from certain unbundling obligations, will also apply to FTTC loops. Specifically, a FTTC loop is a fiber transmission facility connecting to copper distribution plant that is not more than 500 feet from the customer's premises. The Commission further specifies that the fiber transmission facility in a FTTC loop must connect to copper distribution plant at a serving area interface from which every other copper distribution subloop also is not more than 500 feet from the respective customer's premises. In the Triennial Review Order released last year, the Commission concluded that the broadband capabilities of FTTH loops would be relieved from unbundling under section 251 of the Act. Today's action builds on the broadband principles of the Triennial Review Order by further extending the unbundling relief to FTTC loops. In this Order, the Commission concludes that, as with FTTH, competitors are not impaired without access to FTTC loops in new build (“greenfield”) situations. While requesting carriers may face limited impairment in overbuild (“brownfield”) situations, that is addressed by requiring unbundled access to a 64 kbps channel or unbundled access to spare copper facilities. Based on this analysis of impairment and the section 706 balancing of investment incentives against the costs of unbundling for FTTC, the Commission concludes that FTTC loops should have the same unbundling relief as FTTH loops.

9. Petitions by BellSouth and SureWest also sought clarification whether the Commission's existing unbundling rules require incumbent LECs to build time division multiplexing (TDM) capabilities into networks at the request of competitive LECs. Consequently, this Order clarifies that incumbent LECs are not required to add TDM capabilities into new packetized transmission facilities. In addition, the Order also clarifies that where an incumbent LEC has deployed FTTH or FTTC loops using packet-based equipment, and they nevertheless need to hand off a signal to some customers in TDM format in order to be compatible with an end user's customer premises equipment, this “TDM handoff” does not change the scope of unbundling relief.

10. Summary of Significant Issues Raised by the Public . The subject petitions for reconsideration were not submitted in response to the previous FRFA, and did not address the FRFA.

11. Description and Estimate of the Number of Small Entities To Which the Proposed Rules Would Apply . 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).

12. In this section, we further describe and estimate the number of small entity licensees and regulatees that may be affected by the revised rule 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 small businesses within the commercial census category of Wired Telecommunications Carriers. Under this category, 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.

13. 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.

14. 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 majority of firms can be considered small.

15. Incumbent Local Exchange Carriers . 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, 1,337 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,337 carriers, an estimated 1,032 have 1,500 or fewer employees and 305 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.

16. Cable and Other Program Distribution . 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.

17. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities : In this Order, we conclude that FTTC loops will be subject to the same unbundling obligations as FTTH loops. This rule modification will relieve the providers of such broadband loops from unbundling obligations under section 251 of the Act. This relieved a section 251 unbundling requirement currently placed on such providers.

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

19. In this Order, we conclude that FTTC loops should be governed by the FTTH loop rules. The Order considered, and rejected, the alternative of retaining the existing unbundling obligations for FTTC. The Order reached this conclusion by applying principles established in the Triennial Review Order to more precisely calibrate the Commission's policy for broadband loops. In response to petitions for reconsideration requesting that the Commission look more closely at the unbundling requirements for FTTC loops, the Order considers potential impairment faced by requesting carriers and weighs section 706's broadband deployment goals, and concludes that the record demonstrates that FTTC loops should have the same unbundling relief as FTTH loops. Although this rule will deny unbundling to competitive carriers seeking to serve customers served by FTTC loops, the Commission concluded that requesting carriers face no impairment in greenfield situations and only limited impairment in brownfield situations, which is addressed through access to a 64 kbps channel or a spare copper facility. Further, such unbundling relief was necessary to remove disincentives for incumbent LECs to deploy FTTC facilities. Alternatives considered, including the denial of such unbundling relief to FTTC, were not adopted because they do not accomplish the Commission's objectives in this proceeding of promoting broadband deployment.

20. Report to Congress : The Commission will send a copy of the Order, including this Supplemental FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Order, including this Supplemental FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Order and Supplemental FRFA (or summaries thereof) will also be published in the Federal Register .

21. It is ordered that, pursuant to the authority contained in sections 2, 4(i)-4(j), 10(d), 201, 251, 303(r), and 706 of the Communications Act of 1934, as amended, 47 U.S.C. 152, 154(i)-4(j), 160(d), 201, 251, 303(r), 706 this Order on Reconsideration is adopted , and that part 51 of the Commission's rules, 47 CFR part 51, is amended as set forth in Appendix B of the Order. The requirements of this Order shall become effective 30 days after publication in the Federal Register .

22. It is further ordered that, pursuant to the authority contained in sections 2, 4(i)-4(j), 10(d), 201, 251, 303(r), and 706 of the Communications Act of 1934, as amended, 47 U.S.C. 152, 154(i)-4(j), 160(d), 201, 251, 303(r), and 706, the petitions for reconsideration filed by BellSouth and SureWest are granted in part.

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

This is a synopsis of the Commission's Report and Order, MB Docket No. 04-31, adopted December 2, 2004, and released December 14, 2004. The full text of this document is available for public inspection and copying during regular 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., 445 12th Street, SW, Room CY-B402, Washington, DC, 20554, telephone 301-816-2820, facsimile 301-816-0169, or via-e-mail joshir@erols.com.

This document does not contain [new or modified] information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new ore modified “information collection burden for small business concerns with fewer that 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Pub. L. 107-198, see 44 U.S.C. 3506(c)(4).

The Commission will send a copy of this Report & Order in a report to be sent to Congress and the General Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

Regulations governing the bluefish fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.100.

The final rule implementing Amendment 1 to the FMP (65 FR 45844, July 26, 2000) provided a mechanism for bluefish quota to be transferred from one state to another. The FMP allows two or more states, under mutual agreement and with the concurrence of the Administrator, Northeast Region, NMFS (Regional Administrator), to transfer or combine part or all of their annual commercial quota. The Regional Administrator must consider the criteria set forth in § 648.160 (f)(1) in the evaluation of requests for quota transfers or combinations.

The initial total commercial quota for bluefish for the 2004 calendar year was set equal to 10,500,014 lb (4,762,729 kg). The percent allocated to vessels landing bluefish in Maine was 0.6685 percent; Virginia, 11.8795 percent; New York, 10.3851 percent; North Carolina, 33.0608 percent. This resulted in an initial commercial quota for Maine of 70,193 lb (31,839 kg); Virginia, 1,247,348 lb (565,7931 kg); New York, 1,090,436 lb (494,619 kg); and North Carolina, 3,366,384 (1,526,982 kg) (69 FR 47798, August 4, 2004). The 2004 bluefish allocation for Maine was further reduced to 69,536 lb (31,541 kg); Virginia, to 1,235,687 lb (560,498 kg); New York, to 1,080,242 lb (489,990 kg); and North Carolina, to 3,334,913 lb (1,512,691 kg), due to quota allocation to support research projects through a research set-aside.

Virginia has agreed to transfer 300,000 lb (136,077 kg) and Maine has agreed to transfer 69,000 lb (31,297 kg) of their 2004 commercial bluefish quota to North Carolina. Virginia also has agreed to transfer 250,000 lb (113,398 kg) of bluefish quota to New York. The revised quotas for the calendar year 2004 are: Virginia, 685, 687 lb (560,498 kg); Maine, 536 lb (243 kg); New York, 1,330,242 lb (603,387 kg); and North Carolina, 3,703,913 lb (1,680,065 kg).

The Regional Administrator has determined that the criteria set forth in § 648.160(f)(1) have been met. This action does not alter any of the conclusions reached in the environmental assessment for the 2004 specifications for the Atlantic bluefish fishery. This is a routine administrative action that reallocates commercial quota within the scope of previously published environmental analyses.

This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.