The Department of Homeland Security (DHS) is republishing the Privacy Act system of records notice for the Arrival and Departure Information System (ADIS) in order to expand its authority and capability to serve additional programs that require information on individuals throughout the immigrant and non-immigrant pre-entry, entry, status management, and exit processes. These changes include the addition of a routine use to allow sharing of information with the intelligence community in support of the DHS mission to protect the United States from potential terrorist activities; the addition of a routine use for cases of identity theft; clarification on the sources of data in ADIS, potentially including foreign governments; and a reduction of the retention period for ADIS data. The notice for this system of records was last published in the Federal Register on December 12, 2003 (68 FR 69412). In this notice of proposed rulemaking, DHS now is proposing to exempt ADIS from certain provisions of the Privacy Act.

The Privacy Act embodies fair information principles in a statutory framework governing the means by which the United States Government collects, maintains, uses, and disseminates personally identifiable information. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. Individuals may request their own records that are maintained in a system of records in the possession or under the control of DHS by complying with DHS Privacy Act regulations, 6 CFR part 5.

The Privacy Act requires each agency to publish in the Federal Register a description of the type and character of each system of records that the agency maintains, and the routine uses that are contained in each system in order to make agency recordkeeping practices transparent, to notify individuals regarding the uses to which personally identifiable information is put, and to assist individuals in finding such files within the agency.

The Privacy Act allows Government agencies to exempt certain records from the access and amendment provisions. If an agency claims an exemption, however, it must issue a notice of proposed rulemaking to make clear to the public the reasons why a particular exemption is claimed.

DHS is claiming exemption from certain requirements of the Privacy Act for ADIS. Information in ADIS relates to official DHS national security, law enforcement, immigration, and intelligence activities. These exemptions are needed to protect information relating to DHS investigatory and enforcement activities from disclosure to subjects or others related to these activities. Specifically, the exemptions are required to preclude subjects of these activities from frustrating these processes; to avoid disclosure of activity techniques; to protect the identities and physical safety of confidential informants and of immigration and border management and law enforcement personnel; to ensure DHS's ability to obtain information from third parties and other sources; to protect the privacy of third parties; and to safeguard classified information. Disclosure of information to the subject of an inquiry could also permit the subject to avoid detection or apprehension.

The exemptions proposed here are standard law enforcement and national security exemptions exercised by a large number of Federal law enforcement and intelligence agencies. In appropriate circumstances, where compliance would not appear to interfere with or adversely affect the law enforcement purposes of this system and the overall law enforcement process, the applicable exemptions may be waived.

For the reasons stated in the preamble, DHS proposes to amend Chapter I of Title 6, Code of Federal Regulations, as follows:

I. Public Participation

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the proposed rule. The Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) also invite comments that relate to the economic or federalism effects that might result from this proposed rule. Comments that will provide the most assistance to USCIS will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority to support such recommended change.

Instructions: All submissions received must include the agency name and DHS docket No. USCIS-2005-0056 for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided. See ADDRESSES above for information on how to submit comments.

Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov. Submitted comments may also be inspected at the office of the Director, Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529.

A lawful permanent resident (LPR) is an alien who has been granted the privilege of permanently living and working in the United States (lawful permanent resident status), either by adjusting status from a prior immigration status within the United States or by being admitted to the United States on an immigrant visa issued abroad by the U.S. Department of State (DOS). In most cases, USCIS must first approve an immigrant petition for the intending immigrant. Typically, these petitions are filed by an employer (e.g., Form I-140, Immigrant Petition for Alien Worker) or relative (Form I-130, Petition for Alien Relative). After the petition is granted, individuals living within the United States can apply for adjustment of status with USCIS or, for those in removal proceedings, the immigration court, using Form I-485, “Application to Register Permanent Residence or Adjust Status.” Individuals living abroad must file an application for an immigrant visa with a DOS consular office. See 22 CFR 42.63(a)(1) (DS-230, Application for Immigrant Visa and Alien Registration).

As part of the adjustment of status application process, applicants are required to appear at a local USCIS Application Support Center (ASC) and submit to registration and biometrics capture by USCIS. Biometrics capture currently includes fingerprint imaging and a digital photograph. Following approval of an adjustment application or after admission to the United States on an immigration visa, the new LPR will receive a Form I-551, Permanent Resident Card. 1 (commonly referred to as a “green card”). A Form I-551 is evidence of the holder's authorization to live and work in the United States. See Immigration and Nationality Act (INA) sections 264(d), 274A(b)(1)(B)(ii) (8 U.S.C. 1304(d), 1324a(b)(1)(B)(ii)); 8 CFR 264.1(b); 8 CFR 274a.2(b)(1)(v)(A)(2).

USCIS has been authorized to collect information and require the registration of aliens under section 262 of the INA, 8 U.S.C. 1302. Aliens registering with USCIS are required to provide information regarding the date and place of the alien's entry into the United States; the activities in which the alien has been and intends to be engaged; the length of time the alien expects to remain in the United States; the police and criminal record, if any, of the alien; and any additional matters prescribed by DHS or DOS. INA sec. 264(a), 8 U.S.C. 1304(a). All registered aliens over 18 years of age must carry evidence of registration. INA sec. 264(e), 8 U.S.C. 1304(e). The failure to carry evidence of registration is a misdemeanor offense. Id. The Form I-551 is a form of evidence of registration issued to individuals who are LPRs. 8 CFR 264.1(b). The Form I-551 also serves as evidence of employment authorization and identity (see 8 CFR 274a.2(b)(1)(v)(A)(2)), and is used as an entry document upon return from a trip outside the United States (see 8 CFR 211.1(a)(2)).

Until 1989, Forms I-551 issued to LPRs did not contain expiration dates; therefore, those still in circulation do not require periodic replacement. See Memorandum from Commissioner James L. Buck on Alien Registration Documentation (Form I-551) (July 18, 1989). 2 In August 1989, however, the then-Immigration and Naturalization Service (INS) began issuing Forms I-551 with a 10-year expiration date, thereby requiring the cardholder to apply periodically for a new card, and, in so doing, appear before USCIS to update personal information, the photograph contained on the card, and other biometric information, such as fingerprints. See 8 CFR 264.5(a), (b), (c); Instructions to Form I-90, “Application to Replace Permanent Resident Card.” The Form I-551 replacement process gives DHS an opportunity to collect updated biometric information, conduct background checks, and issue updated cards.

When the 10-year Form I-551 was introduced in 1989, it was not administratively feasible for the INS to terminate the validity of all the millions of Forms I-551 in circulation that did not have expiration dates. USCIS now has established processes to enable it to require LPRs with Forms I-551 without expiration dates to apply for new cards and terminate the validity of Forms I-551 without expiration dates. These processes include the establishment, in 1997 and 1998, of Application Support Centers (ASCs) across the United States that, through electronic scheduling of appointments, currently serve as efficient intake centers. In addition, biometrics began to be captured electronically in 1999. Finally, USCIS implemented a new, highly-automated filing procedure in May 2005 where applicants file their Forms I-90 with a U.S. Treasury Department-designated and operated lockbox provider that allows USCIS to process the applications and associated fees more expeditiously. As a result of these improvements, USCIS now has the capability to process a large influx of Forms I-90 over a short period of time.

The need to remove Forms I-551 without expiration dates from circulation is supported by the Enhanced Border Security and Visa Entry Reform Act of 2002 (“BSA”), Public Law 107-173, 116 Stat. 543 (May 14, 2002), amended by Public Law 108-299, 118 Stat. 1100 (Aug. 9, 2004). Section 302(b)(1) of the BSA, 8 U.S.C. 1732(b)(1), requires the Secretary of Homeland Security and the Secretary of State, to issue, not later than October 26, 2004, only machine-readable, tamper-resistant visas and other travel and entry documents that use biometrics identifiers. The Form I-551 falls within the scope of the BSA because, in addition to serving as evidence of registration, it also serves as an entry document for LPRs returning to the United States after a trip abroad. See 8 CFR 211.1(a)(2).

Prior to October 26, 2004, USCIS determined that the Form I-551 was compliant with the requirements of section 302(b)(1) of the BSA, 8 U.S.C. 1732(b)(1). The Form I-551, including the version that does not contain an expiration date, is machine-readable and contains tamper-resistant features and biometrics identifiers. While compliant, older versions of the Form I-551 without expiration dates do not contain the same level of tamper-resistant features and biometric identifiers as the current version. Forms I-551 with expiration dates must be renewed periodically, at which point USCIS can issue new cards containing updated technologies and biometrics information. This is not possible for Forms I-551 without expiration dates. Consequently, in order to ensure that the Forms I-551 in circulation contain the higher level of tamper-resistant features and biometric identifiers that currently-issued cards contain, USCIS intends to terminate the validity of Forms I-551 without expiration dates. In addition, USCIS must ensure that it maintains current biometrics to enable it to conduct background checks on Form I-551 holders to confirm that they are compliant with the laws of the United States and that they are not a threat to national security. By periodically requiring all Form I-551 holders to apply for replacement cards, USCIS will be able to confirm this information and update background and biometric information.

For these reasons, USCIS proposes to set the form, manner and time that alien registration receipt cards are issued as authorized under section 264(d) of the INA, 8 U.S.C. 1304(d). The rule proposes to amend the regulations to require bearers of Forms I-551 without expiration dates to apply for a replacement card during a 120-day application period. This proposed rule also amends the regulations governing the application process for replacing Forms I-551 and makes technical corrections to the title of the application used to replace Forms I-551. Finally, this rule proposes a mechanism for terminating Forms I-551 without an expiration date by notice in the Federal Register .

This rule proposes to amend 8 CFR 264.5(c)(1) to add Form I-551 without an expiration date to the current list of outdated permanent resident cards that are required to be replaced by the filing of Form I-90, “Application to Replace Permanent Resident Card.” The current list consists of Forms AR-3, AR-103, and I-151. This proposed amendment also would impose a 120-day application period for those LPRs holding Forms I-551 without an expiration date to apply for a replacement card. Through the Form I-90 application process, applicants would be required to provide their current biographic and biometric information. Based on this information, USCIS would conduct security checks to verify the identity of card recipients and continued eligibility for LPR status. USCIS would charge the standard, Form I-90 application fee and the biometric information collection service fee to cover all associated costs. The current fees are $290 for the Form I-90 and $80 for the biometric information collection service. 3 After completion of the 120-day application period, USCIS would set a termination date for the validity of such Forms I-551.

USCIS believes that an application period of 120 days will be sufficient for affected LPRs to learn of the new requirement and to complete the required Form I-90. USCIS plans to conduct an extensive outreach program to alert the affected group of LPRs of the need to apply for new cards. This outreach program would include issuing press releases, posting program announcements and question-and-answer (Q&A) documents to the USCIS website, distributing fliers and pamphlets at USCIS field offices, and conducting informational meetings with community-based organizations (CBOs). USCIS also will encourage applicants to file the Form I-90 electronically, rather than on paper. In general, USCIS can process I-90 applications submitted electronically faster than those applications filed on paper. The application form itself is not complicated and takes an estimated average time of 55 minutes to complete. USCIS seeks public comment on the application period.

After the 120-day application period expires, LPRs who failed to timely file Forms I-90 to replace their Forms I-551 would still be required to apply for a replacement card. An alien who fails to file a Form I-90 during this application period will still hold the status of an alien who has been lawfully admitted for permanent residence, since this status continues until it is terminated by entry of a removal order against the alien. 8 CFR 1.1(p). The alien will not, however, be in compliance with the requirement under section 264(e) of the Act, 8 U.S.C. 1304(e), that the alien must have in his or her possession at all times the evidence of his or her having registered. To obtain new evidence of registration, the alien will need to file a Form I-90. For any alien who does not file before the application period expires, however, USCIS would not be able to ensure that the alien will receive a new Form I-551 before the old Form I-551 is deemed to have expired. Strictly speaking, an alien who is at least 18 years old, who fails to file a timely Form I-90, and whose current Form I-551, therefore, expires, could be prosecuted for violating section 264(e). If convicted, the person could be sentenced to pay a fine of up to $100, to imprisonment for up to 30 days, or both. It is also a misdemeanor under section 266(a) of the Act, 8 U.S.C. 1306(a), for an alien to fail to register as required. The alien can be prosecuted for failure to register, however, only if the failure to register is proven to be willful. USCIS does not anticipate that either of these criminal sanctions would be routinely used against aliens who fail to obtain new Forms I-551. The far more common action, should USCIS discover that an alien's Form I-551 has expired, will be to advise the alien to file a Form I-551 to obtain a new Form I-551. If the alien still fails to apply for a new Form I-551, it may become feasible to prove that the failure to do so is willful. USCIS anticipates, however, that aliens will, generally, comply with the requirement to obtain a new Form I-551, once they become aware of the requirement.

Once implemented as a final rule, LPRs affected by the requirements proposed under this rule may choose to apply for naturalization during the 120-day application period instead of a new Form I-551. However, USCIS would not be able to guarantee the completion of its adjudication of such naturalization applications before it terminates the validity of Forms I-551 without expiration dates. For those LPRs who have applied for, but do not receive, a grant of naturalization by the time USCIS sets the termination date, USCIS may issue interim evidence of registration.

Forms I-551 without an expiration date will remain valid throughout the 120-day application period that will be set by the final rule for replacing such Forms I-551. After the 120-day application period, USCIS will assess the number of applications received and the timeframes for application processing and card production. Once USCIS has processed the applications and issued replacement Forms I-551, USCIS will be in a position to set a date for terminating the validity of Forms I-551 without expiration dates. This rule proposes amendments to 8 CFR 264.5(c)(1) to provide that USCIS will announce the termination date after the 120-day application period through a Notice published in the Federal Register .

USCIS is proceeding in this way to minimize the possibility that applicants will not have received a replacement Form I-551 in hand when the validity of their previous Form I-551 is terminated. USCIS cannot precisely estimate the number of applications it will receive to allow USCIS to plan exact timelines for card production and, in turn, a termination date. USCIS will only be able to set timelines based upon the actual volume of applications received. Issuing a separate Notice published in the Federal Register to advise the public of the termination of the validity of Forms I-551 without expiration dates would allow USCIS to implement a termination date that accommodates USCIS's processing needs and applicants' need for valid documentation.

In addition to establishing the mechanism for terminating Forms I-551 without expiration dates, this rule also clarifies that “Form I-551,” when used elsewhere in the regulations, means a valid, unexpired Form I-551. To do so, this proposed rule would amend the list of terms defined in 8 CFR 1.1 by adding a limiting definition of Form I-551. Current regulations do not define Form I-551; instead, the regulations identify its uses. As stated earlier in this Supplementary Information, the regulations identify Form I-551 as an entry document in 8 CFR 211.1(a)(2), evidence of registration in 8 CFR 264.1(b), an immigration status document in 8 CFR 274a.12(a)(1), and a combination identity and employment authorization document in 8 CFR 274a.2(b)(1)(v)(A)(2). These references to Form I-551 apply to both the version of the card with an expiration date and the version of the card without an expiration date. This rule proposes introducing a limiting definition of Form I-551 rather than amend each reference so that it is clear to the public what constitutes a valid Form I-551 with respect to any of its uses, particularly following the termination date of the validity of Forms I-551 without an expiration date. This rule proposes to limit the term, “Form I-551” to mean the version of the form with an expiration date. See proposed 8 CFR 1.1(AA). A Form I-551 that does not bear an expiration date would not be valid for any use under the regulations unless otherwise specifically provided in the regulations. Id.

Until the validity of Forms I-551 without an expiration is terminated via Notice published in the Federal Register , this rule, at 8 CFR 264.1(c)(1), proposes that such Forms I-551 would remain valid. To do otherwise would have the effect of prematurely terminating the validity of Forms I-551. The current regulations permit the use of expired Forms I-551 in other circumstances as well. For example, an expired Form I-551 may be used for entry to the United States and for presenting evidence of identity to an employer. 8 CFR 211.3 (entry); 8 CFR 274a.2(b)(1)(v)(B)(1)(v) (identity). Under this proposed rule, such Forms I-551 and those without expiration dates would remain valid in these instances.

It is important to note that the planned termination of Forms I-551 without expiration dates as proposed under this rule would not affect the immigration status and employment authorization of the holders of such cards; they remain LPRs and their employment is authorized incident to status. See INA 274A(h)(3)(A), 8 U.S.C. 1324a(h)(3)(A); 8 CFR 274a.12(a).

Under the requirements proposed in this rule, an LPR who fails to obtain a new Form I-551 by the I-551 termination date would not be in possession of a valid Form I-551. As a result, he or she may experience difficulties in meeting other requirements where valid documentation is necessary. For example, the LPR with an invalid Form I-551 may experience difficulty returning to the United States after a trip abroad or in obtaining new employment, and would not be in possession of valid registration documentation. See 8 CFR 211.1(a) (entry to the United States); 8 CFR 274a.2(b)(1)(v)(A) (employment ); 8 CFR 264.1(b) (registration).

This rule also proposes amending the regulations at 8 CFR 264.5(e) to update the application procedures for replacing Forms I-551. Current regulations at 8 CFR 264.5(e) cover the following application requirements: The documentation that must accompany Form I-90 upon filing, including the Permanent Resident Card being replaced, photographs, evidence of name change, and signature on the Data Collection Form (Form I-89); proper filing locations; fingerprint submissions; interviews; and waiver of the photograph, in-person filing, and signature requirements. Form I-90 processing procedures are also provided in the instructions to the Form I-90. Because the form instructions are more current, some of the information in the form instructions reflect changes to procedures that are not also reflected in 8 CFR 264.5(e). Whereas 8 CFR 264.5(e)(1) requires the submission of photographs and supporting documentary evidence with the application upon filing, current form instructions provide that this biometric information and evidence will be accepted by USCIS when the applicant appears at an Application Support Center (ASC) (a USCIS facility that captures biometrics) following submission of the application. In addition, 8 CFR 264.5(e)(2)(i) provides that applicants must file Forms I-90 with the local office or Service Center having jurisdiction over their place of residence; instructions to the Form I-90 provide that the application must be submitted to the lockbox address specified in the instructions or filed electronically. Finally, while 8 CFR 264.5(e)(3)(i) only requires applicants who are replacing their Permanent Resident Cards because they have reached 14 years of age to submit to fingerprinting, the instructions to the Form I-90 require all applicants to appear at a USCIS ASC to submit to biometrics capture. Biometrics capture is a broader term than fingerprinting and covers fingerprints, photographs, and signatures. 69 FR 5088, 5090 (Feb. 3, 2004) (proposing a fee increase for biometric capture services, as well as other immigration and naturalization benefits and services).

To ensure that applicants receive clear and consistent filing information, this rule proposes to revise 8 CFR 264.5(e) in its entirety to remove outdated filing instructions, refer applicants to the instructions accompanying the form, and update biometrics capture requirements. Proposed 8 CFR 264.5(e) includes a paragraph on filing requirements, biometrics capture, and interviews. Rather than specify the filing requirements, this proposed rule refers applicants to the Form I-90 instructions. Proposed 8 CFR 264.5(e)(1). The Form I-90, including the filing instructions, is available on the USCIS Web site at http://www.uscis.gov. USCIS has determined that filing information is better placed in form instructions alone, which are reviewed and updated periodically and are more accessible to the public than regulatory provisions. By providing one source for stating the filing requirements, USCIS will avoid confusion and potential conflict between the requirements stated in the regulations and those stated in the form instructions.

This rule also proposes to amend USCIS regulations to reflect the biometrics capture requirements in the current Form I-90 instructions. Proposed 8 CFR 264.5(e)(2). Those instructions require all applicants to appear at an ASC for biometrics capture and pay a separate biometrics fee with the Form I-90 filing. By contrast, the current regulations require all applicants to provide a photograph and signature, but only require individuals replacing their Form I-551 on the basis that they have turned 14 years of age to be subject to fingerprinting. See 8 CFR 264.5(e)(3)(i). This rule proposes to amend the regulations to require all applicants to submit to all of the types of biometrics capture, including fingerprinting. USCIS is proposing to expand the fingerprinting requirement to all Form I-90 applicants to enable USCIS to obtain current biometrics information needed for Form I-551 card production, conduct appropriate background checks before cards are issued, and store this information for biometrics comparison and authentication purposes required by section 302(b)(2)(A) of the BSA, 8 U.S.C. 1732(b)(2)(A).

Note, in particular, that this proposed rule would change the current provision in current 8 CFR 264.5(e)(3)(iii) concerning the USCIS authority to waive the submission of biometric information. In light of the security concerns arising from the September 11, 2001, terrorist attack on the United States, it has been USCIS policy not to exercise this authority by actually waiving the photograph or other requirements. See Memorandum from William R. Yates for Regional Directors and Center Directors, Alterations to the ADIT photograph requirements (September 4, 2003) Memorandum from Johnny N. Williams for Regional Directors, Waiver of Photograph for I-90 Applicants Seeking Replacement or Renewal Form I-551 (February 14, 2003). The Memoranda are included in the public docket for this rule at http://www.regulations.gov, DHS Docket No. USCIS-2005-56. A Form I-551 without a photograph of the person to whom it relates does not serve the essential purpose of the Form I-551: To provide for a ready means of identifying the actual person who has been lawfully admitted for permanent residence. In the case of an alien who is physically unable to come to a USCIS facility due to advanced age or physical infirmity, the practice has not been actually to waive the photograph and other biometrics requirements. Instead, the practice has been to provide an alternative means for collecting this evidence. The most common practice is to permit the applicant to provide passport-style photographs, police clearance letters, and other appropriate evidence.

The rule, once final, would retain the provisions governing waivers of the biometrics capture requirement in current 8 CFR 264.5(e)(3)(iii) and interviews in current 8 CFR 264.5(e)(3)(ii), except that the provisions are renumbered to new 8 CFR 264.5(e)(2) and (e)(3). In addition, the rule simplifies the text of these provisions; no substantive changes are proposed.

This rule also proposes technical corrections to 8 CFR 299.1 and 299.5 by adding the updated edition date (03/31/05) and title of the Form I-90 to those sections. The Form I-90's proper title is “Application to Replace Permanent Resident Card.” The form was revised to reflect this title; however, the regulations listing immigration forms were never revised.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 605(b)), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996 (SBRFA), requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). DHS has considered the impact of this rule on small entities and has determined that this rule will not have a significant economic impact on a substantial number of small entities. The individual lawful permanent residents to whom this rule applies are not small entities as that term is defined in 5 U.S.C. 601(6). There is no change expected in any process as a result of this rule that would have a direct effect, either positive or negative, on a small entity. Accordingly, this rule, once final, will not have a significant economic impact on a substantial number of small entities.

This rule will not result in the expenditure by State, local and tribal governments in the aggregate of $100 million or more in any one year. However, as discussed below under Executive Order 12866, this action will result in the expenditure by the private sector of more than $100 million over the period of time that the program is in place. Only holders of Forms I-551, “Permanent Resident Cards,” without expiration dates will bear the costs of this rule.

This rule is a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule, once final, will result in an effect on the economy of approximately $290 million in the first year after this rule is published, $24 million in the second year after this rule is published, and $13 million in the third year after this rule is published. This increase is directly associated with the expected increase in the number of Forms I-90 and amount of accompanying filing and biometrics fees that USCIS will receive to replace Forms I-551, “ Permanent Resident Cards,” without expiration dates prior to termination of such cards.

This rule has been identified as an economically significant rule under Executive Order 12866, section 3(f)(1), Regulatory Planning and Review. Accordingly, this rule has been submitted to the Office of Management and Budget for review. USCIS has assessed both the costs and benefits of this rule, as required by Executive Order 12866, and has made a reasoned determination that the benefits justify the costs.

USCIS estimates that 750,000 persons will apply for a replacement Form I-551, “Permanent Resident Card,” in accordance with this rule. The most likely estimated cost of this rule for these persons is $327 million over a three-year period of analysis (2007-2009). Over the three-year period of analysis, the present value cost of this proposed rule is approximately $267 million at 7%. A three-year period of analysis was chosen since those aliens who are required by this rulemaking to obtain a new Form I-551 will do so only in 2007, 2008, and 2009. The $327 million estimate consists of $278 million in fees associated with the Form I-90, $42 million in opportunity cost for an applicant's time, and $7 million in transportation costs for round trip transit to the nearest USCIS Application Support Center (ASC). The calendar year breakdown of these costs is $290 million for Calendar Year (CY) 2007 ($278 million in fees plus $12 million in applicant time and transportation costs), $24 million for CY 2008 (applicant time and transportation costs), and $13 million for CY 2009 (applicant time and transportation costs). The cost assessment, which includes a discussion of both the maximum and most likely estimated costs of this rule, follows.

In an effort to improve the security of the documents that USCIS issues for use by the public, this rule calls for a 120-day period, beginning 30 days from the date of publication of the final rule in the Federal Register , within which time LPRs holding Forms I-551 without expiration dates must apply to replace their card. To apply, they must file Form I-90 with a fee of $290 and an additional biometrics capture fee of $80. The total current cost is $370.

Those who apply for a replacement Form I-551 under this rule must submit biometrics that will be used for background checks and stored for future use. Based on technology and processes being developed by DHS, stored biometrics will be available for access by DHS for other immigration and law enforcement uses (a security benefit to the public at large), and these applicants might not need to return to an ASC for purposes of triggering certain background checks such as FBI fingerprints, should they decide to naturalize or apply for a replacement Form I-551 in the future.

The primary benefit to the government resulting from this rule is enhanced national security. Once the program is complete, all LPRs will have Forms I-551 with late-model technology. The biometrics of the rightful holder will be electronically stored in a secure DHS database that is easily retrievable and that can be used for data matching purposes among the DHS components. The card itself will bear a current photograph, facilitating its use by employers and the travel industry.

USCIS considered a number of alternatives to this proposed rulemaking. One alternative was for USCIS to maintain the current regulations. However, such an action would result in the agency's failure to fully meet the goals of section 303(b) of the BSA, 8 U.S.C. 1732(b). Another alternative was to expire pre-1989 cards, but lower the fees for replacing the cards. However, under this alternative, the agency would fail to meet its general obligation to ensure that the fees for such services are established at rates that allow the agency to recoup its costs, and would unfairly transfer the costs of this program to all other applicants for benefits and services from USCIS. See OMB Circular A-25 (available at http://www.whitehouse.gov/omb/circulars/a025/a025.html ).

USCIS data indicates that the number of Forms I-551 without an expiration date issued, minus the number of persons known to have held these cards before naturalizing, is 1.9 million. Consequently, the maximum number of aliens impacted by this rule is 1.9 million. 4 The direct cost to each applicant for replacement of a card under this program is $370 in fees ($290 for the application plus $80 for the biometrics capture fee). These costs fall exclusively upon individuals who possess cards issued before August of 1989 and which do not have an expiration date. Because these persons would not otherwise have to acquire new cards, and would not otherwise have all their biometrics captured, we believe these fees would be generated only by this new rule. Based upon these figures, this rule will cost applicants a maximum of $703 million in fees ($370 × 1.9 million).

Furthermore, each member of this group would be required to spend two hours and 55 minutes complying with this rule. USCIS estimates that each applicant will spend ten minutes reading the application Form I-90 instructions. Each applicant also will take ten minutes to complete the form and thirty-five minutes to assemble and submit the form, for a total of 55 minutes of each applicant's time.

Applicants will also be required to travel to the nearest USCIS Application Support Center (ASC). While travel times and distances will vary, USCIS estimates the average round-trip to an ASC will be 20 miles, and that the average time for that trip will be an hour. It will take an average of one hour for an applicant to wait for service, and to have his or her biometrics collected.

Total time for each applicant to comply with this requirement is two hours and fifty-five minutes. The Bureau of Labor Statistics reports in its 2006 national compensation survey that the average, U.S.-employed person earned $19.29 an hour (BLS Web site). In addition, the average wage of this large group should mimic the national average. Consequently, USCIS believes that $19.29 an hour is a reasonable proxy to use to value the opportunity cost of time for the applicants subject to this rule. The total cost for applicant time spent is calculated as $107 million (1.9 million persons × 2.916 hours × $19.29).

Additionally, there is the cost of travel. USCIS anticipates most applicants will drive privately-owned vehicles to the ASCs. GSA's published decision of February 1, 2007, on this subject calculates the cost of operating a privately-owned vehicle as 48.5 cents a mile. (GSA Web site, reporting on findings for February 1, 2007). Therefore, USCIS calculates the transportation costs as $19 million (1.9 million persons × 48.5 cents per mile × 20 miles).

Thus, if all holders of cards issued without expiration dates filed a replacement application, the total maximum cost of the program would consist of $703 million in fees, $107 million in time, and $19 million in transportation costs. The total maximum cost of compliance to this rule by 1.9 million persons is $829 million ($703 million + $107 million + $19 million).

Notwithstanding, experience from the replacement program for an earlier, now-invalid version of the Permanent Resident Card (Form I-151) has shown that a portion of these applicants will apply for naturalization rather than replace their Permanent Resident Cards and thus significantly reduce the overall cost of this rule. Other holders of affected cards may be deceased, may have relinquished their United States residence, or may have previously replaced their cards for other reasons, such as the replacement of a lost or mutilated card. In addition, some potential applicants may choose not to spend time and money to replace their cards, because they do not habitually travel outside the United States. Some potential applicants, in spite of USCIS's public relations efforts, may not learn of the requirement that such cards be changed. Also, some cards may be in possession of persons who obtained them fraudulently or who have committed serious criminal offenses since obtaining their cards. USCIS theorizes that these persons may choose not to take the perceived risk of contacting DHS and of calling into question their right to be in the United States.

USCIS accordingly estimates the most likely outcome of this program is that 750,000 persons issued cards without expiration dates, but not yet recorded as naturalized, will apply for replacement cards under this rule. USCIS calculates the cost of the primary estimate as $327 million ($829 million × 0.395 or 750,000 of 1.9 million maximum applicants). Based on the formulas provided above, USCIS's $327 million estimate consists of $278 million in fees associated with the Form I-90, $42 million in opportunity costs for an applicant's time, and $7 million in transportation costs for round trip transit to the nearest USCIS Application Support Center.

As required by OMB Circular A-4 (available at http://www.whitehouse.gov/omb/circulars/a004/a-4.html ), in Table 1, USCIS has prepared an accounting statement showing the classification of the expenditures associated with this economically significant rule. The table provides USCIS's primary or most likely estimate of the dollar amount of these costs expressed on an annualized basis and also includes USCIS's maximum annualized estimate at both the three percent and seven percent discount rates. The period of analysis is three years (2007, 2008, and 2009). Based on USCIS's primary or most likely estimate, the undiscounted total cost of this rule will be approximately $327 million. USCIS anticipates that the duration of the I-551 replacement card program implemented by the final rule will be three (3) years. Consequently, when the undiscounted total cost is broken down into calendar years, this rulemaking is expected to cost $290 million in 2007, $24 million in 2008, and $13 million in 2009. Below is the expected annualized cost of this rulemaking, at both 3% and 7%, over the three year period of analysis. Enhanced security and the capabilities accompanying the storage of full fingerprint sets for subsequent retrieval constitute non-quantified benefits.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2007-28869/Airspace Docket No. 07-ACE-11.” The postcard will be date/time stamped and returned to the commenter.

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

Additionally, any person may obtain a copy of this notice by submitting a request to the Federal Aviation Administration (FAA), Office of Air Traffic Airspace Management, ATA-400, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-8793. Communications must identify both docket numbers for this notice. Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is proposing to amend Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace at Tarkio, MO. Controlled airspace is necessary to accommodate aircraft using the new RNAV(GPS) IAP at Gould Peterson Municipal Airport. This action would enhance the safety and management of aircraft operations at Gould Peterson Municipal Airport, Tarkio, MO.

Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in Paragraph 6005 of FAA Order 7400.9P, dated September 1, 2006, and effective September 16, 2006, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document would be published subsequently in the Order.

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

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

The Lower Delaware extends from the southern boundary of the Delaware Water Gap National Recreation Area at River Mile (“RM”) 209.4 to the head of tide at Trenton, New Jersey, RM 144.4. The effect of temporary classification of the Lower Delaware as SRW has been to make this portion of the main stem Delaware River and its drainage area subject to all applicable provisions of the Commission's Special Protection Waters regulations, Section 3.10.3 A.2 of the Commission's Water Code and Water Quality Regulations, incorporated by reference at 18 CFR Part 410, except those that depend for implementation upon the use of numeric values for existing water quality.

Key provisions of the Special Protection Waters Regulations that will continue to apply within the drainage area to the Lower Delaware River if the proposed extension of the SRW classification is approved include but are not limited to the following: Subsections 3.10.3 A.2.c.1 through 3, in part requiring that no new or expanded wastewater discharges may be permitted in waters classified as Special Protection Waters until all non-discharge-load reduction alternatives have been fully evaluated and rejected because of technical or financial infeasibility; subsections 3.10.3 A.2.d.1. through 7., setting forth requirements for wastewater treatment facilities; and subsections 3.10.3 A.2.e.1. and 2., conditioning project approval on the existence of an approved Non-Point Source Pollution Control Plan for the project area and requiring that approval of a new or expanded withdrawal and/or wastewater discharge project be subject to the condition that new connections to the project system be limited to service areas regulated by a non-point source pollution control plan approved by the Commission.

Temporary SRW classification of the Lower Delaware was enacted by Commission Resolution No. 2005-2 on January 19, 2005 and initially was due to expire on September 30, 2005. By Resolution No. 2005-15 approved on September 26, 2005, the temporary classification was extended through September 30, 2006 in order to allow time for the Commission to evaluate implementation options and establish numeric values for existing water quality. By Resolution No. 2006-22 on September 27, 2006, the Commission extended temporary designation a second time, through September 30, 2007, because it had not completely resolved implementation issues. The Commission has nearly resolved all remaining issues with respect to implementation, but in order to allow time to complete this process and conduct notice and comment rulemaking on permanent designation of the Lower Delaware as Special Protection Waters, the Commission is proposing to extend the temporary classification for approximately eight months more. If approved, the classification would thus expire on May 15, 2008 unless the Commission should either permanently classify the Lower Delaware River or once again extend the temporary classification by rule amendment prior to that date.

Previous Federal Register notices concerning designation of the Lower Delaware River as Special Protection Waters include notices published on September 23, 2004 (69 FR 57008) (proposed Special Protection Waters designation), August 22, 2005 (70 FR 48923) (proposed extension through September 30, 2006), and August 21, 2006 (71 FR 48497) (proposed extension through September 30, 2007). The proposed and final versions of the initial designation, approved by Resolution No. 2005-2, and the subsequent extensions approved by Resolutions Nos. 2005-15 (extension through September 30, 2006) and 2006-22 (extension through September 30, 2007) were also published on the Commission's Web site, http://www.drbc.net.

Resolution No. 2005-2, temporarily amending the Water Quality Regulations, Water Code, and Comprehensive Plan of the Commission by designating the Lower Delaware River a Special Protection Water, and Resolutions Nos. 2005-15 and 2006-22, extending the temporary amendment approved by Resolution No. 2005-2, are available on the Commission's Web site at http://www.drbc.net or upon request from the Delaware River Basin Commission, P.O. Box 7360, West Trenton, NJ 08628-0360. Maps depicting the designated area are also available on the Web site.

Section 704(c)(1)(B) provides that a partner that contributes section 704(c) property to a partnership must recognize gain or loss on the distribution of such property to another partner within seven years of its contribution to the partnership in an amount equal to the gain or loss that would have been allocated to such partner under section 704(c) if the distributed property had been sold by the partnership to the distributee partner for its fair market value at the time of the distribution.

Section 737(a) provides that a partner that contributes section 704(c) property to the partnership and then receives a distribution of property (other than money) within seven years of its contribution must recognize gain in an amount equal to the lesser of (1) The excess (if any) of (A) the fair market value of property (other than money) received in the distribution over (B) the adjusted basis of the partner's interest in the partnership immediately before the distribution reduced (but not below zero) by the amount of money received in the distribution, or (2) the net precontribution gain of the partner.

Section 737(b) provides that for purposes of section 737, the term “net precontribution gain” means the net gain (if any) which would have been recognized by the distributee partner under section 704(c)(1)(B) if all property which (1) Had been contributed to the partnership by the distributee partner within seven years of the distribution, and (2) is held by the partnership immediately before the distribution, had been distributed by the partnership to another partner.

Rev. Rul. 2004-43, 2004-1 CB 842, ( see § 601.601(d)(2) of this chapter) issued on April 12, 2004, addressed the application of sections 704(c)(1)(B) and 737 in an assets-over partnership merger described in § 1.708-1(c)(3). Rev. Rul. 2004-43 held that section 704(c)(1)(B) applies to newly created section 704(c) gain or loss in property contributed by the transferor partnership to the transferee partnership in an assets-over partnership merger. The revenue ruling also held that for purposes of section 737(b), net precontribution gain includes newly created section 704(c) gain or loss in property contributed by the transferor partnership to the transferee partnership in an assets-over partnership merger. In addition, the revenue ruling held that section 704(c)(1)(B) will not apply to, and, for purposes of section 737, net precontribution gain will not include, reverse section 704(c) gain or loss resulting from a revaluation of property of the transferee partnership.

Some commentators argued that Rev. Rul. 2004-43 was not consistent with the existing regulations under sections 704(c)(1)(B) and 737, and that the conclusions contained in the ruling should not be applied retroactively. In response to these comments, the Treasury Department and the IRS issued Notice 2005-15, 2005-7 IRB 527, ( see § 601.601(d)(2) of this chapter) indicating their intent to issue regulations under sections 704(c)(1)(B) and 737 implementing the principles of the ruling, and issued Rev. Rul. 2005-10, 2005-7 IRB 492 ( see § 601.601(d)(2) of this chapter) officially revoking Rev. Rul. 2004-43. The Notice provided that any such regulations would be effective for distributions made after January 19, 2005.

These proposed regulations implement the principles articulated in Rev. Rul. 2004-43. The proposed regulations under § 1.704-4(c)(4) and § 1.737-2(b) provide that in an assets-over merger, sections 704(c)(1)(B) and 737 do not apply to the transfer by a partnership (the transferor partnership) of all of its assets and liabilities to another partnership (the transferee partnership), followed by a distribution of the interests in the transferee partnership in liquidation of the transferor partnership as part of the same plan or arrangement.

The proposed regulations, however, provide that section 704(c)(1)(B) applies to a subsequent distribution by the transferee partnership of section 704(c) property contributed in the assets-over merger by the transferor partnership to the transferee partnership. The proposed regulations also provide that section 737 applies when a partner of the transferor partnership receives a subsequent distribution of property (other than money) from the transferee partnership.

The proposed regulations provide that for property contributed to the transferor partnership (original contribution), the amount of original section 704(c) gain or loss is the difference between the property's fair market value and the contributing partner's adjusted basis at the time of contribution to the extent such difference has not been eliminated by section 704(c) allocations, prior revaluations, or in connection with the merger. In the case of property contributed with original section 704(c) loss, section 704(c)(1)(C) which was added by the American Jobs Creation Act of 2004 provides special rules for determining the basis of the property contributed. The Treasury Department and IRS are currently developing guidance that will implement the provisions of section 704(c)(1)(C). Thus, the proposed regulations do not address the impact of section 704(c)(1)(C) in applying these rules. However, when finalized, these regulations will clarify the application of section 704(c)(1)(C) to these rules.

The proposed regulations provide that the seven year period will not restart with respect to the original section 704(c) gain or loss as a result of the merger. Accordingly, a subsequent distribution by the transferee partnership of property with original section 704(c) gain or loss is subject to sections 704(c)(1)(B) and 737 if the distribution occurs within seven years of the contribution of the property to the transferor partnership (original contribution). However, with respect to new section 704(c) gain or loss, the regulations provide that the seven-year period in sections 704(c)(1)(B) and 737 begins on the date of merger. Thus, a subsequent distribution by the transferee partnership of property with new section 704(c) gain or loss is subject to sections 704(c)(1)(B) and 737 if the distribution occurs within seven years of the merger.

The regulations further provide that no original section 704(c) gain or loss will be recognized under section 704(c)(1)(B) or section 737 if property that was originally contributed to the transferor partnership is distributed to the original contributor. If property has new section 704(c) gain or loss, then a subsequent distribution of such property within seven years of the merger to one of the former partners of the transferor partnership (former partner) is subject to section 704(c)(1)(B) only to the extent of the other former partners' shares of such gain or loss.

New section 704(c) gain or loss shall be allocated among the partners of the transferor partnership in a manner consistent with the principles of §§ 1.704-3(a)(7) and newly designated 1.704-3(a)(10) (previously § 1.704-3(a)(9)). In addition, the partners of the transferor partnership are deemed to have contributed an undivided interest in the assets of the partnership. The proposed regulations provide that the determination of the partners' undivided interest for this purpose shall be made by the transferor partnership using any reasonable method. The Treasury Department and the IRS request comments on methods that should be considered reasonable for this purpose.

The proposed regulations also provide that if less than all of a section 704(c) property is distributed, then a proportionate amount of original and new section 704(c) gain or loss must be recognized under section 704(c)(1)(B). Similarly, if gain is required to be recognized under section 737, a proportionate amount of original and new section 704(c) gain must be recognized under section 737. Each partner must recognize its respective proportionate share of gain or loss required to be recognized.

The proposed regulations further provide a subsequent merger rule. This rule provides that if the transferee partnership is subsequently merged (a subsequent merger) the new section 704(c) gain or loss that resulted from the original merger shall be subject to section 704(c)(1)(B) for seven years from the time of the original merger and the new section 704(c) gain or loss that resulted from the subsequent merger will be subject to section 704(c)(1)(B) for seven years from the time of the subsequent merger.

In addition, the proposed regulations provide an identical ownership and a de minimis change in ownership exception to sections 704(c)(1)(B) and 737 with regard to assets-over partnership mergers. Under the identical ownership exception, section 704(c)(1)(B) will not apply to, and section 737 net precontribution gain will not include, new section 704(c) gain or loss in any property contributed in an assets-over partnership merger where the ownership of both partnerships is identical. In order for merging partnerships to qualify for the identical ownership exception, each partner must own identical interests in book capital and in each item of income, gain, loss, deductions and credit, and identical shares of distributions and liabilities in each of the transferor and transferee partnerships. Where ownership of both partnerships is identical, the merger more accurately represents a change in form, and should have no substantive tax consequences. The same principles apply where the change in ownership is de minimis. For purposes of the de minimis exception, a difference in ownership is de minimis if ninety seven percent of the interests in book capital, items of income, gain, loss, deduction and credit and share of distributions and liabilities of the transferor partnership and transferee partnership are owned by the same owners in the same proportions.

Proposed regulations under § 1.704-3(c)(4)(iii) provide that taxpayers may distinguish between the original and new portions of section 704(c) gain or loss. The proposed regulations provide that the transferee partnership may continue to use the section 704(c) allocation method adopted by the transferor partnership with respect to original section 704(c) property, or it may adopt another reasonable section 704(c) method. In addition, the transferee partnership may adopt any reasonable section 704(c) method with respect to new section 704(c) gain or loss. With respect to both the original and the new section 704(c) gain or loss, the transferee partnership must use a reasonable method that is consistent with the purpose of sections 704(b) and 704(c).

As part of this proposed regulation, the Treasury Department and the IRS are also making certain regulatory changes to reflect statutory changes that occurred as part of the Taxpayer Relief Act of 1997 (Public Law 105-34). Effective June 8, 1997, Congress lengthened the period of time from five years to seven for accounting for section 704(c) gain or loss with respect to distributions. Consistent with the statutory changes, various provisions in § 1.704-4 and § 1.737-1 have been amended.

Except as otherwise provided, these proposed regulations will be effective for any distributions of property after January 19, 2005, if such property was contributed in an assets-over merger after May 3, 2004. Provisions relating to the change in the regulations in § 1.704-4 and § 1.737-1 from the previous five-year rule to the seven-year rule will be effective August 22, 2007.

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The Treasury Department and IRS request comments on the clarity of the proposed rules and how they may be made easier to understand. All comments will be available for public inspection and copying.

A public hearing has been scheduled for December 5, 2007, 10 a.m. in the Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 15 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble.

The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit written or electronic comments by November 20, 2007 and an outline of the topics to be discussed and time to be devoted to each topic (a signed original and eight (8) copies) by November 21, 2007. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.

The principal authors of these proposed regulations are Jason Smyczek and Laura Fields, Office of the Associate Chief Counsel (Passthroughs and Special Industries), IRS. However, other personnel from the IRS and the Treasury Department participated in their development.

Accordingly, 26 CFR part 1 is proposed to be amended as follows:

For additional information see the direct final rule which is published in the Rules Section of this Federal Register .

This is a summary of the Commission's Further Notice of Proposed Rulemaking (FNPRM) in IB Docket No. 06-123, FCC 07-76, adopted May 2, 2007 and released on May 4, 2007. The full text of the FNPRM is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-488-5300, facsimile 202-488-5563, or via e-mail FCC@BCPIWEB.com.

Pursuant to the Regulatory Flexibility Act, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the rules adopted in the R&O and the proposals considered in the FNPRM. The text of the IRFA is set forth in Appendix H of the R&O and FNPRM. Written public comments are requested on the IRFA. Comments must be filed in accordance with the same filing deadlines for comments on the FNPRM, and they should have a separate and distinct heading designating them as responses to the IRFA.

In addition, the Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due October 22, 2007. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

OMB Control Number: 3060-1097.

Title: Service Rules and Policies for the Broadcasting Satellite Service (BSS).

Form No.: Not Applicable.

Type of Review: On-going collection.

Respondents: Businesses or other for-profit entities.

Number of Respondents: 4 respondents; 24 responses.

Estimated Time Per Response: 10 hours.

Frequency of Response: On occasion and annual reporting requirements.

Estimated Total Annual Burden: 240 hours.

Estimated Total Annual Costs: $12,451,700.00.

Privacy Act Impact Assessment: Not Applicable.

Needs and Uses: The purpose of this information collection is to address the Paperwork Reduction Act (PRA) requirements proposed in the Commission's Notice of Proposed Rulemaking (FCC 06-90) to establish policies and service rules for the new Broadcasting Satellite Service under IB Docket No. 06-123. In this FNPRM, the Commission proposes three new information collection requirements applicable to Broadcasting Satellite Service licensees: (1) Annual reporting requirement on status of space station construction and anticipated launch dates, (2) milestone schedules and (3) performance bonds that are posted within 30 days of the grant of the license.

Without the information collected through the Commission's satellite licensing procedures, we would not be able to determine whether to permit applicants for satellite licenses to provide telecommunications services in the U.S. Therefore, we would be unable to fulfill our statutory responsibilities in accordance with the Communications Act of 1934, as amended; as well as the obligations imposed on parties to the World Trade Organization (WTO) Basic Telecom Agreement.

1. Further Notice of Proposed Rulemaking: In the NPRM , the Commission sought comment on what measures were needed to address issues concerning reverse band operations. These included measures to mitigate against space-path interference between DBS and 17/24 GHz BSS satellites (space-path interference) and to protect 17/24 GHz BSS subscribers from DBS feeder links (ground-path interference). The record on these issues is insufficient to develop requirements. While most commenters advocate certain general approaches, we need more information to build on the generalities and derive specific requirements. Thus, we seek further comment on the issues concerning reverse band operations.

2. Ground-Path Interference in Reverse Band Operations. As discussed in the NPRM, ground path interference will occur when the signals from transmitting DBS feeder link earth stations operating in the 17.3-17.7 GHz band are detected at the receiving earth stations of 17/24 GHz BSS subscribers. This interference situation will be the most severe in areas surrounding the DBS feeder uplink stations. In addition, 17/24 GHz BSS operators who choose to co-locate their TT&C earth stations with DBS TT&C earth stations systems may experience difficulty in receiving the downlinked telemetry signal from the 17/24 GHz BSS spacecraft. Although at present there are a relatively small number of DBS feeder link and TT&C earth stations, the NPRM recognized that DBS feeder link earth stations that transmit in the Earth-to-space direction may increasingly locate in populated areas, thereby escalating the potential for interference into 17/24 GHz BSS subscriber antennas. The NPRM also anticipated that future entrants, such as short-spaced DBS systems, or non-U.S. DBS satellites serving the U.S. market, could result in the deployment of an even greater number of feeder link earth stations at multiple sites within the United States. The NPRM also raised concerns that the interference problem could be further exacerbated by the proliferation of small-diameter 17/24 GHz BSS subscriber receiving antennas with relatively poor off-axis discrimination properties.

3. Grandfathering Existing DBS Uplink Facilities. DIRECTV notes that, although DBS operators have recently sought authority for additional feeder link earth stations to uplink local broadcast signals from regional collection sites, the number of such sites is still very small. DIRECTV states, by way of illustration, that it operates DBS feeder links from only four sites across the country, and has no plans for additional regional sites. DIRECTV proposes that we “grandfather” licensed and operating DBS uplink facilities so that they may continue to operate in the manner in which they were designed in reliance on the rules then in effect. Accordingly, DIRECTV does not support off-axis EIRP density or other transmitting power limits for existing DBS feeder link antennas, or a requirement that such be shielded. EchoStar also advocates “grandfathering” of existing DBS feeder link earth stations, arguing that there are relatively few in number, and that the majority are located in less populated areas so that they pose little problem.

4. The Commission did not discuss this issue in the NPRM . Nevertheless, based on the record, we tentatively conclude that existing DBS feeder link earth stations should not be subject to new interference-mitigation requirements imposed as a result of this rulemaking. Accordingly, we intend to define an area around existing DBS feeder link earth stations that transmit in the 17.3-17.7 GHz band, within which 17/24 GHz BSS receiving earth stations cannot claim protection from the DBS feeder uplink transmissions. We discuss this issue in more detail below.

5. Protection Zones for Existing DBS Uplink Facilities. We propose to limit any protection zone to some area surrounding the specific geographic location and frequencies within the 17.3-17.7 GHz BSS band in which the DBS feeder link earth station licensee is already authorized to transmit. In addition, we agree that the feeder link operator should have some ability to upgrade facilities at existing sites, as long as the modification does not cause any increase in interference to 17/24 GHz BSS receiving antennas outside of the defined protection zone.

6. We seek comment on these tentative conclusions and on how a protection zone should be defined. One option is to define the boundary of the protection zone as a fixed distance away from the coordinates of the DBS Feeder Link Earth Station. DIRECTV presents an analysis demonstrating that, in the absence of shielding, the separation distance between a DBS feeder link earth station and a receiving 17/24 GHz subscriber antenna can become significant, i.e., on the order of 22 miles. EchoStar suggests that likely separation distances necessary to mitigate groundpath interference are on the order of 10 to 60 miles. SES Americom states that levels of interference could be harmful if the subscriber earth station is located within 20-30 km (12.5-18.6 miles) of the DBS feeder link station.

7. We note too that the DBS feeder link earth station's transmissions will not be equal in all directions, but will vary in part as a function of azimuth and elevation angle, and this picture may be complicated by the presence of multiple transmitting antennas at a particular site. In addition, we recognize that different areas of the country will have differing climate, rainfall and terrain conditions that will also mitigate groundpath interference. Accordingly, a second option is to employ a more detailed methodology that takes into account these site-specific characteristics, rather than impose a uniform radius around the earth station coordinates. Parties supporting this approach should explain in detail how exactly they would adjust for climate, rainfall, or terrain conditions, or any other variables that they believe should be reflected in the protection zone.

8. Thus, we invite comment on each of the two protection zone options set forth above: (1) To set the boundary at some fixed distance from the DBS feeder link earth station; or (2) to adjust that boundary to account for climate, terrain, or other considerations. We also seek comment on any other approaches we might adopt. Commenting parties should provide specific details on any such proposal.

9. Upgrades to Grandfathered Facilities. EchoStar urges the Commission to make clear that any protection is afforded to existing DBS uplink sites, and not just to currently licensed earth stations to protect the operator's ability to expand their existing uplink sites. EchoStar argues that this approach would promote efficiency by reducing the number of new geographically diverse sites. Specifically, EchoStar proposes that “grandfathering” would apply both to existing earth stations and to new earth stations located “within a mile of the easternmost, westernmost, northernmost and southernmost coordinates of existing earth stations in each site.” We seek comment on EchoStar's proposal to extend “grandfathered” status to any new earth stations located within a mile of an existing earth station site. Parties commenting on this proposal should explain in detail the reasons for their positions. Among other things, we invite comment on whether, and to what extent, adding new DBS feeder link earth stations within a mile of an existing DBS feeder link earth station is likely to increase the probability of harmful interference to 17/24 GHz BSS receivers.

10. As an alternative approach, we could define a pfd level at the boundary of the protection zone that would take into account the cumulative effect of any modified operations of the existing earth station site. If these modified operations do not exceed this pfd level, the modification would not be subject to the new coordination requirements. We seek comment on this approach. We also seek comment on what pfd level at the boundary might be suitable.

11. Coordination between DBS and 17/24 GHz BSS Operators. Commenters addressing the issue of new DBS feeder link earth stations recognize that to protect the interests of 17/24 GHz BSS consumers, these earth stations will need to be subject to some restrictions. As detailed below, we seek comment on developing a coordination zone and a coordination methodology.

12. Coordination Zone. In the NPRM , the Commission observed that its rules do not contain a procedure to coordinate co-frequency, DBS feeder link earth stations with BSS subscriber terminals. Consequently, the Commission proposed to establish “coordination zones” or, in other words, areas around DBS feeder link earth stations in which coordination would be required. The Commission proposed to define these areas based on the methodology outlined in Annex 3 of Appendix 7 of the ITU Radio Regulations.

13. The Commission further observed that it had used Appendix 7 as the basis of other coordination rules it had adopted. The Commission also noted, however, that Table 9b of Appendix 7, which includes data needed for determining the coordination zone for services in several frequency bands, does not include some data needed for determining the coordination zone for services in the 17.3-17.8 GHz band. Accordingly, the Commission invited parties to recommend data for a table based on Table 9b that would allow operators to calculate coordination areas for the 17.3-17.8 GHz band in a way comparable to the method operators in other frequency bands use Table 9b to determine their coordination distances.

14. Consistent with our proposal in the NPRM, we tentatively conclude that use of the procedure in Table 9b to establish the coordination zone for DBS feeder link earth stations and BSS subscriber terminals is appropriate. In this FNPRM, we seek comment on the specific values for Table 9b as set forth below. We seek comment on the appropriateness of this approach. Parties proposing an alternative set of values should provide a detailed justification for those values.

15. DIRECTV proposes that the Commission establish a coordination zone around any new DBS feeder uplink earth stations and that within this zone, a new the DBS operator would be required to coordinate its operations with 17/24 GHz BSS subscriber earth stations. DIRECTV asserts further that this process would be greatly facilitated if new DBS uplink facilities were required to operate with strict pfd limits on transmissions toward the horizon and/or to employ shielding. Although DIRECTV suggests that this coordination zone could be relatively large ( e.g. , 10 km) it proposes no specific methodology for how such a zone might be defined, nor does it propose pfd limits in the direction of the horizon.

16. However, EchoStar proposes that, rather than defining a coordination zone, the Commission should define an area around any new DBS feeder link earth station within which 17/24 GHz BSS earth stations would become, in effect, secondary to the DBS operation and thus would required to accept all interference. For this reason, EchoStar contends that the methodology of Appendix 7 is not likely to determine particularly realistic separation distances, as it is intended to calculate threshold separations to initiate coordination. EchoStar also contends that there are several other methodologies that the Commission might consider for determining the spacing between DBS feeder link stations and 17/24 GHz BSS earth stations. Specifically, EchoStar suggests that ITU-R Recommendation P.452 defines a general propagation model that could be applied, and ITU-R Recommendation S.1712, although intended for the 14 GHz band, might provide additional useful methodologies that could be extrapolated to the 17 GHz band. In addition, EchoStar proposes that the choice of methodology for computing the separation distance should be left to the operators concerned.

17. Accordingly, we seek comment on the above proposals, and which, if any we should adopt to facilitate reverse-band operations in the 17 GHz band. As an initial matter, we request interested parties to discuss whether the Commission should adopt a coordination zone of any type, or whether the defined zone should be an area in which the 17/24 GHz BSS is secondary to DBS as EchoStar recommends. We invite interested parties to discuss whether they prefer to define such a zone using a methodology based on Appendix 7, Annex 3 as proposed in the NPRM, or based on one of the ITU recommendations suggested by EchoStar ( i.e. , ITU-R Recommendation P.452 or S.1712). We request comment on all these proposals, and invite commenters to propose different coordination or separation distances, provided that they can provide adequate justification on the record for their proposals.

18. In addition, we seek comment on whether we should permit operators to determine jointly among themselves the choice of methodology to calculate the corresponding separation distance as EchoStar suggests. We also seek comment on how, under this approach, established 17/24 GHz BSS subscriber antennas might be protected from interference from newer DBS feeder link operations seeking to locate nearby. Such parties should explain in detail why they support their preferred methodology, and why they believe their methodology is superior to other options. Finally, we invite parties to recommend the appropriate parameter values necessary to employ the method they support.

19. Coordination Methodology. We invite comment here on the methodology to be used within that zone to coordinate DBS feeder links and 17/24 GHz BSS earth stations, should the Commission adopt a coordination zone as discussed above. The NPRM envisioned that both DBS operators and 17/24 GHz BSS operators will be deploying new earth stations over time, so that new stations of one service will continually be established among existing stations from the other. The Commission made a similar observation in the MVDDS Second R&O, in which it addressed a frequency sharing situation that presented ground path interference issues and gradual build-out of interspersed earth stations similar to those we envision in the 17.3-17.7 GHz band.

20. In the MVDDS Second R&O, the Commission concluded that careful MVDDS system design and the use of various mitigation techniques could achieve successful sharing of the 12 GHz frequency band by both services. To accomplish this goal, the Commission adopted, among other things, a coordination procedure that requires that a MVDDS operator entering a market where DBS receivers are already established must satisfy certain requirements in order to protect these customers. In addition, a mechanism is established for information exchange between the operators of both services, in particular to take into account recently acquired DBS customers. The NPRM sought comment on whether we should adopt a similar approach to sharing between DBS feeder link earth stations and 17/24 GHz BSS receiving earth stations. We seek further comment here. Specifically we ask whether we should adopt service rules similar to those in § 25.203(c), requiring all applications for new (non-grandfathered) DBS feeder link earth stations or new 17 GHz transmitting TT&C stations to complete prior frequency coordination with existing and planned 17/24 GHz BSS receiving stations.

21. The Commission recognizes that requiring 17/24 GHz BSS operators to make available a list of their subscriber earth stations raises issues of sensitive customer information, particularly if the DBS feeder link applicant is also a competitor. Accordingly, we tentatively conclude that use of a neutral, third-party frequency coordinator is appropriate to assuage such concerns. Thus, we propose that, prior to filing an application with the Commission, a DBS operator planning a new feeder link earth station or 17 GHz transmitting TT&C station must provide certain specified technical information to a qualified frequency coordinator. The frequency coordinator would make this technical information available to all licensed 17/24 GHz operators. Interested parties could obtain both a list of potentially-affected and active 17/24 GHz BSS customer locations that are within a defined coordination area, as well as a list of potentially-affected 17/24 GHz TT&C earth stations for which applications are on file with the Commission within the defined coordination area. The 17/24 GHz BSS operators would be required to provide these lists within 30 days upon receipt of the new DBS feeder link earth station technical information and the notice. A DBS operator would be allowed to file an application with the Commission for a new DBS feeder link or TT&C transmitting earth station within 6 months of successfully completing coordination with all stations on these lists. If the Commission grants a license for the newly proposed 17 GHz transmitting station, any 17/24 GHz receiving earth station not on these lists would be unable to claim protection from this new DBS feeder link earth station. We seek comment on this proposal, and on the method that should be employed to calculate such a coordination area.

22. We also seek comment on the types of technical information DBS feeder link earth station operators should make available for the purposes of earth station coordination with 17/24 GHz BSS operators. In the case of satellite and terrestrial earth station coordination, Commission rules now require that all transmitting satellite earth station applicants submit an interference analysis as required by § 25.203 of the Commission's rules, 47 CFR 25.203(c)(2). § 25.203(c)(2) requires that the earth station applicant provide each terrestrial station licensee with specific technical details. Similarly, we propose that DBS feeder link earth station applicants provide the following information to the qualified frequency coordinator:

i. The geographical coordinates of the proposed earth station antenna(s);

ii. Proposed operating frequency band(s) and emission(s);

iii. Antenna diameter (meters);

iv. Antenna center height above ground and ground elevation above mean sea level;

v. Antenna gain pattern(s) in the plane of the main beam;

vi. Longitude range of geostationary satellite orbit (GSO) satellites at which an antenna may be pointed, for proposed earth station antenna(s) accessing GSO satellites;

vii. Horizon elevation plot;

viii. Antenna horizon gain plot(s) determined in accordance with the procedure in section 2.1 of Annex 5 to Appendix 7 of the ITU Radio Regulations;

ix. Minimum elevation angle;

x. Maximum equivalent isotropically radiated power (EIRP) density in the main beam in any MHz band;

xi. Maximum available RF transmit power density in any 1 MHz band at the input terminals of the antenna(s);

xii. A plot of the coordination distance contour(s) and rain scatter coordination distance contour(s) as determined by Table 2 of section 3 to Appendix 7.

23. We ask what reference bandwidths would be appropriate in items (x) and (xi). In addition, we seek comment on whether the parameters listed here or other technical information would be appropriate to provide in order to facilitate coordination between new DBS feeder link earth stations and receiving 17/24 GHz BSS antennas.

24. Other Measures to Protect 17/24 GHz BSS Operations. In addition to the protection zone and coordination requirements proposed above, some commenters assert that further measures are necessary to protect 17/24 GHz BSS earth stations from harmful interference from DBS feeder link earth stations. Those measures include: (1) Limits on DBS feeder link earth station EIRP toward the horizon; (2) placement of new DBS feeder link facilities in low-population density areas; (3) technical showing requirements for co-located DBS and 17/24 GHz BSS earth stations; and (4) antenna shielding requirements. These proposed approaches are not necessarily mutually exclusive, and it is entirely possible that we might employ several methods in combination with each other, as well as adopting the protection zone and coordination requirements discussed above. Moreover, as DIRECTV correctly notes, a decision to employ one approach may influence the extent to which we simultaneously apply another. However, no commenter has been specific in its proposals, nor provided a comprehensive approach necessary to definitively address the issue. Consequently, we do not believe that the record is sufficiently developed so that we may determine whether to adopt requirements at this time.

25. Accordingly, we invite further comment on each of the additional measures suggested by commenters. In particular, commenters supporting any of these proposals should explain in detail why that additional measure would be necessary to protect 17/24 GHz BSS earth stations from harmful interference, in the event that we adopt coordination procedures of the kind discussed above. Moreover, such commenters should discuss whether they support adoption of all the additional measures discussed here, or whether some of the additional measures would provide adequate protection from harmful interference.

26. Power Level Limits. In the NPRM, the Commission noted that § 25.204(b) of the Commission's rules places limits on earth station EIRP in bands above 15 GHz shared coequally with terrestrial radiocommunication services, in order to facilitate sharing with these services. The Commission sought comment on whether the Commission should extend this requirement to new DBS feeder link earth stations operating in the entire 17.3-17.7 GHz band. The Commission also asked whether the EIRP density limits in § 25.204(b) through (e) would be sufficient to protect 17/24 GHz BSS earth stations, or if DBS feeder link earth stations should meet some more stringent requirements. We seek further comment on these questions.

27. Under EchoStar's power limit proposal, new DBS earth stations would be constrained only in terms of EIRP density toward the horizon. We invite comment on whether any such limit would be necessary if we adopt a coordination procedure as discussed above. Alternatively, we ask whether the adoption of EIRP density limits toward the horizon would obviate the need for coordination procedures. Advocates of EIRP density limits should include a specific limit in their discussions, and advocates of both approaches should provide adequate justification for their recommendations.

28. Restrictions on Placement of New DBS Earth Stations. DIRECTV and EchoStar advocate requiring DBS feeder link earth station operators to locate their earth stations only in areas of low population density. Although neither define precisely how such sparely populated locations would be determined, DIRECTV notes that counties with populations less that ten people per square mile comprise a significant portion of the contiguous United States. We seek comment on this approach, either alone, or in conjunction with other proposals, and ask how the Commission should determine what constitutes a low-population density site. We also request parties to explain how DBS feeder link operators would be able to protect 17/24 GHz BSS consumer earth stations that are already deployed in these areas.

29. EchoStar makes its proposal to restrict new DBS feeder link earth stations to low population-density areas in conjunction with its proposal to require those earth stations to meet strict off-axis EIRP density limits towards the horizon. Presumably however, even areas of low population density may contain 17/24 GHz BSS subscribers. Thus, although this approach might be applied to new DBS feeder uplink stations locating in areas yet unoccupied by 17/24 GHz BSS subscriber earth stations, EchoStar does not make clear how subscriber terminals would be protected if the DBS applicant sought to locate in an area where 17/24 GHz BSS consumer earth stations were already deployed. We request commenters to address this issue.

30. Technical Showing Requirement for Co-Located Earth Stations. The NPRM also addressed groundpath interference that may occur between transmitting DBS feeder uplinks and the receiving telemetry stations of 17/24 GHz BSS systems that choose to locate their TT&C facilities at or near to existing DBS feeder uplink sites. The Commission recognized that choice of facility site is a system design parameter that is under the control of the operator, and does not necessarily require a Commission action to remedy. Moreover, given the large financial investment required to launch and operate a satellite, we believe that 17/24 GHz BSS operators have strong incentive to make correct technical decisions with regard to their choice of TT&C facility sites and equipment design. However, the NPRM also recognized that interference into TT&C systems can present a serious problem due to the potential for loss of satellite control, and sought comment on whether the Commission should adopt requirements to guard against such scenarios.

31. Specifically, the Commission proposed to require earth station applicants planning to co-locate their 17/24 GHz BSS TT&C stations with DBS feeder link earth stations to make a technical showing to the Commission demonstrating their ability to maintain sufficient margin in their telemetry links in the presence of the interfering DBS signal. Similarly, the Commission proposed to require DBS feeder link earth station applicants planning to co-locate with their 17/24 GHz BSS telemetry earth stations to make an analogous technical showing to the Commission. The Commission sought comment on these proposals and asked what parameters would be appropriate in such a showing. It also asked whether it should preclude co-location of 17 GHz BSS TT&C and DBS feeder link facilities altogether, or whether it should require some minimum separation between such facilities.

32. DIRECTV responds that, with careful planning, it should be possible to coordinate the operations of these two services, even to the point where the facilities can be co-located. Accordingly, DIRECTV does not believe that the Commission should limit operator flexibility by precluding such co-location or by requiring some minimum separation distance. Rather, DIRECTV supports the Commission's proposal that operators seeking to co-locate such facilities should be required to make a technical showing demonstrating their ability to maintain sufficient margin in the 17/24 GHz BSS telemetry links in the presence of the interfering DBS signal. DIRECTV asserts that this will enable those operators who want to capture the efficiencies of co-location to do so, provided they can prove to the Commission that receipt of critical 17/24 GHz BSS telemetry data will not be subject to disruption. EchoStar also believes that such interference can be avoided by careful frequency planning of the 17 GHz uplink and downlink signals, and believes that this frequency planning can be conducted by the operator alone, within its own earth station complex. Accordingly, we will restate the proposal to require a technical showing to the Commission in the event of co-location of DBS feeder link and 17/24 GHz BSS telemetry earth stations, and seek any further comment on the issue.

33. Shielding. We also seek comment on whether we should impose any additional requirements on either DBS feeder link earth station operators or on 17/24 GHz BSS operators in order to mitigate interference into 17/24 GHz BSS subscriber receiving antennas. We ask whether, as most commenters suggest, a requirement to employ shielding should be adopted in conjunction with any of the approaches discussed above, and if so what form such a requirement might take.

34. Space Path Interference in Reverse Band Operations. The NPRM sought comment on how best to manage the problem of space path interference arising when the transmitted signals from 17/24 GHz BSS satellites are received by the feeder link receivers on satellites operating in the DBS service. In addition, the NPRM sought comment on the particular instance where applicants sought to locate within the same cluster as co-frequency receiving DBS satellites and asked whether this was feasible at all, and if so what measures might be required to facilitate such co-clustering. The Commission also sought comment on the more general question of locating 17/24 GHz BSS satellites at close distances to co-frequency DBS satellites and asked what measures, including a minimum orbital separation requirement, off-axis EIRP limits, antenna discrimination requirements, or other requirements might be adopted to protect DBS receiving antennas from unacceptable interference. Finally, the NPRM sought comment on the particular problem of interference to DBS TT&C transmissions in the 17 GHz band that could result in loss of satellite control. The Commission proposed to require 17/24 GHz BSS space station applicants seeking to co-locate with DBS satellites to make a technical showing demonstrating their ability to sufficiently minimize interference such that adequate margin is maintained in the DBS telecommand links. An analogous requirement was proposed for any future DBS applicant seeking to co-locate with 17/24 BSS satellites to make a similar technical showing demonstrating its ability to maintain sufficient TT&C link margin.

35. Commenters addressing these issues all realize the potential for space path interference between 17/24 GHz BSS and DBS satellites, but generally maintain that co-location is feasible at relatively small orbital separations, typically on the order of a few tenths of a degree. EchoStar asserts that a separation of 0.4 degrees is sufficient, however only if the DBS and 17/24 BSS satellites are operated by the same licensee. EchoStar argues that the risk of interference in such situations is most severe, and is best avoided by assigning space-to-Earth frequencies at that location only to the 17/24 GHz BSS operator that uses these same frequencies in the Earth-to-space direction for its DBS feeder link operations. DIRECTV also believes that co-frequency operation may be possible at small orbital separations, but that this will depend upon a number of factors including the gain toward the GSO of both transmitting and receiving satellites as well as the desired protection level of the DBS system. DIRECTV also believes that given the many uncertainties involved, it is best to permit only operators who control transmissions in both directions at a given location to locate in close proximity as they can best “self coordinate” their operations. DIRECTV also suggest that the Commission may want to consider a strict off-axis gain specification for 17/24 GHz BSS satellites wishing to locate within a certain distance of a DBS satellite.

36. SES Americom and Intelsat oppose the idea that 17/24 GHz BSS satellites seeking to operate at the same frequency and location as DBS satellites should only be licensed to the corresponding DBS licensee, arguing that this restriction is unnecessary and unfairly favors incumbent DBS operators. SES Americom believes that spacepath interference issues can be resolved through the use of offset orbital locations and coordination between operators. Similarly, Intelsat believes that a four-degree orbital spacing plan with small offsets in combination with coordination between operators will be sufficient to mitigate spacepath interference issues between closely spaced 17/24 GHz BSS and DBS satellites. In section III. D. of this Order, we require 17/24 GHz BSS satellite licensees to design their satellites to be capable of operating in a four-degree spacing environment. We will license satellites in this band only if they comply with the orbital spacing rules we adopt in this Order.

37. EchoStar also proposes that the spacepath interference into DBS receivers can be managed by establishing a pfd value at the victim ( i.e. , DBS) receiver above which coordination is required. Specifically, EchoStar proposes a pfd threshold level at the victim satellite receiver of -93 dBW/m 2 /24 MHz and derives this value from the ITU 6% ΔT/T requirement used to determine the need for coordination between Administrations, contained in Appendix 30A of the Radio Regulations. EchoStar also proposes that the Commission should require a minimum separation between DBS and 17/24 GHz BSS satellites of at least 0.2-0.3 degrees, although these parameters might be relaxed in the event of agreement among all affected parties.

38. We concur with EchoStar's proposed approach to managing spacepath interference between 17/24 GHz BSS and DBS satellites by requiring coordination when pfd values are exceeded at the DBS satellite receiver. This approach is consistent with the method used by the ITU, See Annex 4 of Appendix 30A of the ITU Radio Regulations, and has proved workable for international coordination of satellite systems. However, as EchoStar notes, its proposed pfd value depends in part on certain assumptions about the DBS off-axis receiving antenna gain and may not afford sufficient to protection to all systems, particularly as DBS off-axis antenna gain patterns are not necessarily well known. Accordingly, in order to protect receiving DBS satellites from unacceptable levels of interference, we propose to adopt an off-axis pfd coordination trigger of -93 dBW/m 2 /24 MHz at the DBS receiving antenna. Coordination with affected co-frequency licensees, both existing and planned, would be required in the event that the 17/24 GHz BSS satellite exceeds this level at the DBS receiving antenna; coordination would not be required in cases where no frequency overlap occurs. We seek comment on this proposal and ask whether it is sufficient to protect existing DBS operations from interference, or whether some other approach or additional requirement might better protect DBS receiving antennas from unwanted spacepath interference. We also ask how such a requirement might apply to future DBS operations that might be affected, including in particular any replacement satellites.

39. We also seek comment on the particular information that 17/24 GHz BSS applicants should be required to submit to the Commission. Clearly, reliable information concerning the off-axis transmitting antenna gain of the 17/24 GHz BSS satellite will need to be made available. Presumably this information will need to include all frequencies in the 17.3-17.7(8) GHz range so that any future DBS applicant will also have sufficient information to protect its operations from unwanted interference. We seek comment on what form this information should take ( i.e. , measured data, charts, graphs). We ask whether off-axis gain in the plane of the GSO is sufficient and over what angular range it should be provided ( e.g. , ±30°, ±45° with respect to the plane passing through the x- and y-axes of the satellite.)

40. In its reply comments EchoStar also proposes the Commission adopt a minimum orbital separation between 17/24 GHz BSS and DBS satellites of 0.2-0.3 degrees. SES Americom also believes that an orbital offset of at least 0.2-0.3 degrees is necessary for co-frequency operation of DBS and 17/24 GHz BSS satellites. DIRECTV however indicates that a minimum orbital separation value as small as 0.05 degrees would be sufficient to permit co-frequency operation, provided modest care in satellite antenna design is employed. We seek comment on EchoStar's proposal to require a minimum orbital separation between co-frequency operation of DBS and 17/24 GHz BSS satellites, and we ask what separation value is appropriate should we adopt such a requirement. We also seek comment on whether such a requirement is necessary should we adopt the pfd threshold and coordination requirements discussed above, particularly if, as EchoStar suggests, this separation value might be relaxed by agreement among the affected operators.

41. Finally, the NPRM sought comment on our proposal to protect DBS TT&C operations, particularly in recognition of the potential for loss of satellite control. DIRECTV comments on this proposal, asserting that the Commission should allow co-location of 17/24 GHz BSS and DBS space stations only if the affected DBS operator gives its consent, and only if the 17/24 GHz BSS applicant demonstrates its ability to maintain sufficient margin in the DBS telecommand links in the presence of the interfering 17/24 GHz BSS signal. We believe this proposal has merit, for both 17/24 GHz BSS operators seeking to locate in close proximity to DBS satellites, and also in the case where DBS operators may seek to locate in close proximity to established 17/24 BSS GHz satellites. Accordingly, we propose to adopt a requirement that a 17/24 GHz BSS applicant proposing to locate its satellite in the vicinity of a DBS space station make a technical showing to the Commission demonstrating its ability to sufficiently minimize interference into the DBS systems, such that adequate margin is maintained in the DBS telecommand links in the presence of the interfering BSS signal. Similarly we will require that a DBS applicant proposing to locate its satellite in the vicinity of existing 17/24 GHz BSS space station make a technical showing to the Commission demonstrating its ability to maintain sufficient margin in its telecommand links in the presence of the interfering BSS signal. We seek comment on these proposals. We ask under what circumstances such a technical showing should be required, e.g. , co-location at less than some minimum distance, or on the basis of a threshold pfd value. We seek comment on whether the threshold pfd level of -93 dBW/m 2 /MHz proposed above is also a suitable coordination trigger for DBS telecommand links, or whether some other value might be more appropriate. We also seek comment on the maximum orbital separation distance at which would be appropriate to require such a technical showing.

42. SES Americom also commented on 17/24 GHz BSS interference into DBS telecommand links, stating that issues relating to space path interference can be resolved through offset of orbital locations and coordination between the involved operators with respect to TT&C frequencies. SES Americom also stated that it believes that a frequency separation of as little as 500 kHz is adequate to prevent interference from the beacon of a 17/24 GHz BSS satellite into the command carrier of a DBS space station. We seek comment on whether some minimum frequency separation is required between the signals transmitted by a 17/24 GHz BSS space station and the telecommand frequencies of DBS space station located in close proximity to the 17/24 GHz BSS space station, or a combination of frequency separation and pfd limits, and what the appropriate parameters would be.

43. Conclusion. We adopt a Further Notice of Proposed Rulemaking to seek comment on technical issues related to reverse band operations to address potential interference concerns.

44. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one- or two-sentence description of the views and arguments presented is generally required. Other rules pertaining to oral and written presentations are set forth in § 1.1206(b) of the Commission's rules as well.

45. The actions contained herein have been analyzed with respect to the Paperwork Reduction Act of 1995 at the initiation of the Notice of Proposed Rulemaking in this proceeding, and we have previously received approval of the associated information collection requirements from the Office of Management and Budget (OMB) under OMB Control No. 3060-1097. The Report and Order and Further Notice of Proposed Rulemaking 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).

46. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this item, the Establishment of Policies and Service Rules for the Broadcasting-Satellite Service at the 17.3-17.7 GHz Frequency Band and at the 17.7-17.8 GHz Frequency Band Internationally, and at the 24.75-25.25 GHz Frequency Band for Fixed Satellite Services Providing Feeder Links to the Broadcasting-Satellite Service and for the Broadcasting Satellite Service Operating Bi-Directionally in the 17.3-17.8 GHz Frequency Band, Report and Order and Further Notice of Proposed Rulemaking ( R&O and FNPRM ). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the FNPRM provided in paragraph 194 of this NPRM . The Commission will send a copy of the FNPRM , including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the FNPRM and IRFA (or summaries thereof) will be published in the Federal Register .

47. The objective of the proposed rules is to address potential interference scenarios which arise in the reverse band operating environment. In the NPRM , we sought comment on what measures were needed to address issues concerning reverse band operations. These included measures to mitigate against space-path interference between DBS and 17/24 GHz BSS satellites (space-path interference) and to protect 17/24 GHz BSS subscribers from DBS feeder links (ground-path interference). The record on these issues is insufficient to develop requirements. While most commenters advocate certain general approaches, we need more information to build on the generalities and derive specific requirements. Thus, we seek further comment on the issues concerning reverse band operations.

48. The two types of interference which might occur in the reverse band operating environment are ground path interference and space path interference. Ground path interference will occur when the signals from transmitting DBS feeder link earth stations operating the 17.3-17.7 GHz band are detected at the receiving earth stations of 17/24 GHz BSS subscribers. This interference will be the most severe in areas surrounding the DBS feeder uplink stations. Space path interference will occur when the transmitted signals from 17/24 GHz BSS satellites are received by the feeder link receivers on satellites operating in the DBS service.

49. In order to mitigate against ground path and space path interference, we are proposing a variety of measures, such as the establishment of protection zones, coordination zones, power level limits, geographic restrictions of earth stations, informational requirements for coordination, and required technical showings.

50. This NPRM is adopted pursuant to sections 1, 4(i), 7(a), 301, 303(c), 303(f), 303(g), 303(r), 303(y), and 308 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 157(a), 301, 303(c), 303(f), 303(g), 303(r), 303(y), 308.

51. 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). Below, we further describe and estimate the number of small entity licensees that may be affected by the adopted rules.

52. Satellite Telecommunications. The SBA has developed a small business size standard for the two broad census categories of “Satellite Telecommunications” and “Other Telecommunications.” Under both categories, a business is considered small if it has $13.5 million or less in annual receipts. The category of Satellite Telecommunications “comprises establishments primarily engaged in providing point-to-point telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” For this category, Census Bureau data for 2002 show that there were a total of 371 firms that operated for the entire year. Of this total, 307 firms had annual receipts of under $10 million, and 26 firms had receipts of $10 million to $24,999,999. Consequently, we estimate that the majority of Satellite Telecommunications firms are small entities that might be affected by our action.

53. The category of Other Telecommunications “comprises establishments primarily engaged in (1) providing specialized telecommunications applications, such as satellite tracking, communications telemetry, and radar station operations; or (2) providing satellite terminal stations and associated facilities operationally connected with one or more terrestrial communications systems and capable of transmitting telecommunications to or receiving telecommunications from satellite systems.” For this category, Census Bureau data for 2002 show that there were a total of 332 firms that operated for the entire year. Of this total, 259 firms had annual receipts of under $10 million and 15 firms had annual receipts of $10 million to $24,999,999. Consequently, we estimate that the majority of Other Telecommunications firms are small entities that might be affected by our action.

54. Space Stations (Geostationary). Commission records reveal that there are 44 space station licensees. We do not request nor collect annual revenue information concerning such licensees, and thus are unable to estimate the number of geostationary space station licensees that would constitute a small business under the SBA definition cited above, or apply any rules providing special consideration for geostationary space station licensees that are small businesses.

55. 17 GHz Transmitting Earth Stations. Currently there are approximately 47 operational earth stations in the 17.3-17.7 GHz bands. The Commission does not request or collect annual revenue information, and thus is unable to estimate the number of earth stations that would constitute a small business under the SBA definition.

56. Cellular and Other Wireless Telecommunications. The SBA has developed a small business size standard for Cellular and Other Wireless Telecommunications, which consists of all such firms having 1,500 or fewer employees. According to Census Bureau data for 2002, in this category there were 1,397 firms that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this category and size standard, the majority of firms can be considered small.

57. In this Further Notice of Proposed Rulemaking, the Commission invites comment on various issues related to the mitigation of harmful interference in the reverse band operating environment, which is unique to operation in the 17/24 GHz BSS. None of the proposed methods are intended to increase the projected reporting, recordkeeping, and other compliance requirements.

58. The RFA requires that, to the extent consistent with the objectives of applicable statutes, the analysis shall discuss significant alternatives such as: (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 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.

59. The measures proposed are necessary to mitigate against space-path interference between DBS and 17/24 GHz BSS satellites (space-path interference) and to protect 17/24 GHz BSS subscribers from DBS feeder links (ground-path interference). The measures include the establishment of protection zones, coordination zones, power level limits, geographic restrictions of earth stations, and technical showings. We believe that these proposals are the most equitable solutions to the potential interference problems posed by operation in the 17/24 GHz BSS. We seek comment on viable alternatives to these rules or their reporting requirements that would lessen the economic impact on small entities. We also seek comment on the establishment of differing compliance or reporting requirements that take into account the resources available to small entities.

60. None.

61. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419 , interested parties may file comments in response to this FNPRM no later than on or before 75 days after Federal Register publication. Reply comments to these comments may be filed no later than on or before 105 days after Federal Register publication. All pleadings are to reference IB Docket No. 06-123. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. Parties are strongly encouraged to file electronically. See Electronic Filing of Documents in Rulemaking Proceedings , 63 FR 24121 (1998).

62. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc/gov/e-file/ecfs.html . Parties should transmit one copy of their comments to the docket in the caption of this rulemaking. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply.

63. Parties choosing to file by paper must file an original and four copies of each filing in IB Docket No. 06-123. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). If more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. The Commission's mail contractor, Natek, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

64. Comments submitted on diskette should be on a 3.5 inch diskette formatted in an IBM-compatible format using Word for Windows or compatible software. The diskette should be clearly labeled with the commenter's name, proceeding (including the docket number, in this case, IB Docket No. 06-123), type of pleading (comment or reply comment), date of submission, and the name of the electronic file on the diskette. The label should also include the following phrase “Disk Copy—Not an Original.” Each diskette should contain only one party's pleadings, preferably in a single electronic file.

65. All parties must file one copy of each pleading electronically or by paper to each of the following: (1) The Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 488-5300, facsimile (202) 488-5563, or via e-mail at FCC@BCPIWEB.COM.

66. Comments and reply comments and any other filed documents in this matter may be obtained from Best Copy and Printing, Inc., in person at 445 12th Street, SW., Room CY-B402, Washington, DC 20554, via telephone at (202) 488-5300, via facsimile (202) 488-5563, or via e-mail at FCC@BCPIWEB.COM. The pleadings will be also available for public inspection and copying during regular business hours in the FCC Reference Information Center, Room CY-A257, 445 Twelfth Street, SW., Washington, DC 20554 and through the Commission's Electronic Filing System (ECFS) accessible on the Commission's World Wide Web site, http://www.fcc.gov.

67. Comments and reply comments must include a short and concise summary of the substantive arguments raised in the pleading. Comments and reply comments must also comply with § 1.49 and all other applicable sections of the Commission's rules. All parties are encouraged to utilize a table of contents, and to include the name of the filing party and the date of the filing on each page of their submission. We also strongly encourage that parties track the organization set forth in this NPRM in order to facilitate our internal review process.

68. Commenters who file information that they believe is proprietary may request confidential treatment pursuant to § 0.459 of the Commission's rules. Commenters should file both their original comments for which they request confidentiality and redacted comments, along with their request for confidential treatment. Commenters should not file proprietary information electronically. See Examination of Current Policy Concerning the Treatment of Confidential Information Submitted to the Commission, Report and Order, 13 FCC Rcd 24816 (1998), Order on Reconsideration, 14 FCC Rcd 20128 (1999) . Even if the Commission grants confidential treatment, information that does not fall within a specific exemption pursuant to the Freedom of Information Act (FOIA) must be publicly disclosed pursuant to an appropriate request. See 47 CFR 0.461; 5 U.S.C. 552. We note that the Commission may grant requests for confidential treatment either conditionally or unconditionally. As such, we note that the Commission has the discretion to release information on public interest grounds that does fall within the scope of a FOIA exemption.

69. Accordingly, it is ordered that, pursuant to the authority contained in sections 1, 4(i), 4(j), 7(a), 301, 303(c), 303(f), 303(g), 303(r), 303(y), and 308 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 157(a), 301, 303(c), 303(f), 303(g), 303(r), 303(y), 308, this Further Notice of Proposed Rulemaking is adopted .

70. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center shall send a copy of this Further Notice Of Proposed Rulemaking , including the initial regulatory flexibility analysis, to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with section 603(a) of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. (1981) .

71. It is further ordered that the Commission shall send a copy of this Further Notice of Proposed Rulemaking 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).

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 07-165, adopted August 8, 2007, and released August 10, 2007. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 Twelfth Street, SW, Washington, DC 20554. This document may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com .

This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows:

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 07-163, adopted August 8, 2007, and released August 10, 2007. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 Twelfth Street, SW., Washington, DC 20554. This document may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com .

This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows:

Section 857 of the John Warner National Defense Authorization Act Fiscal Year 2007 (Pub. L. 109-364) created a higher ceiling for small businesses to use the small claims procedure to appeal a contracting officer’s final decision. This proposed rule amends the FAR to add the higher ceiling at 33.211(a)(4)(v).

This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

The Councils do not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because this proposed rule does not change the rules for buying and does not add an information collection requirement. An Initial Regulatory Flexibility Analysis has, therefore, not been performed. We invite comments from small businesses and other interested parties. The Councils will consider comments from small entities concerning the affected FAR Part 33 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601, et seq. (FAR case 2006-031), in correspondence.

The Paperwork Reduction Act does not apply because the proposed changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

Therefore, DoD, GSA, and NASA propose amending 48 CFR part 33 as set forth below:

1. The authority citation for 48 CFR part 33 continues to read as follows:

2. Amend section 33.211 by revising paragraph (a)(4) to read as follows:

(a) * * *

(4) Prepare a written decision that shall include a—

(i) A description of the claim or dispute;

(ii) A reference to the pertinent contract terms;

(iii) A statement of the factual areas of agreement and disagreement;

(iv) A statement of the contracting officer’s decision, with supporting rationale;

(v) Paragraphs substantially as follows:

“This is the final decision of the Contracting Officer. You may appeal this decision to the agency board of contract appeals. If you decide to appeal, you must, within 90 days from the date you receive this decision, mail or otherwise furnish written notice to the agency board of contract appeals and provide a copy to the Contracting Officer from whose decision this appeal is taken. The notice shall indicate that an appeal is intended, reference this decision, and identify the contract by number. With regard to appeals to the agency board of contract appeals, you may, solely at your election, proceed under the board’s—

(1) Small claim procedure for claims of $50,000 or less or, in the case of a small business concern (as defined in the Small Business Act and regulations under that Act), $150,000 or less; or

(2) Accelerated procedure for claims of $100,000 or less.

Instead of appealing to the agency board of contract appeals, you may bring an action directly in the United States Court of Federal Claims (except as provided in the Contract Disputes Act of 1978, 41 U.S.C. 603, regarding Maritime Contracts) within 12 months of the date you receive this decision”; and

(vi) Demand for payment prepared in accordance with 32.610(b) in all cases where the decision results in a finding that the contractor is indebted to the Government.