On October 3, 2007 (72 FR 56275), the Nuclear Regulatory Commission (NRC) published for public comment a proposed rule that would amend its regulations to provide updated fracture toughness requirements for protection against PTS events for PWR pressure vessels. The proposed rule would provide new PTS requirements based on updated analysis methods. This action is desirable because the existing requirements are based on unnecessarily conservative probabilistic fracture mechanics analysis. This action would reduce regulatory burden for licensees, specifically those licensees that expect to exceed the existing requirements before the expiration of their licenses, while maintaining adequate safety. These new requirements would be voluntarily used by any PWR licensee as an alternative to complying with the existing requirements.

The NRC received several requests from public stakeholders to extend the comment period for the information collection aspects of the proposed rule. The comment period for the information collection is being reopened and now closes on December 17, 2007.

The IAEA periodically revises TS-R-1 to reflect new information and accumulated experience. The DOT is the U.S. competent authority before the IAEA for radioactive material transportation matters. The NRC provides technical support to the DOT in this regard, particularly with regard to Type B and fissile packages.

The IAEA recently released, for 120-day Member State review, a draft revision of TS-R-1 intended for publication in 2009. To assure opportunity for public involvement in the international regulatory development process, we are requesting input from the public on the proposed revisions to TS-R-1. At this time, comments are being solicited on the changes made from the 2005 edition which are included in the 2009 draft revision. To facilitate review, the IAEA has provided a summary Table of Changes document comparing the 2005 version of TS-R-1 to the proposed 2009 changes by paragraph. Any comments made should refer to the relevant paragraph number in the 2009 draft revision of TS-R-1, and when appropriate should propose alternative text.

The draft 2009 revision to TS-R-1 [ML073170348] and Table of Changes [ML073170368] documents are available at the NRC's Agencywide Document Access and Management System (ADAMS) Public Electronic Reading Room on the Internet, accessible through the NRC's public Web site at http://www.nrc.gov. This Web site provides text and image files of the NRC's public documents. The public can gain entry into ADAMS through the agency's public Web site at http://www.nrc.gov/reading-rm/adams.html , under Accession No. ML073170348, for the 2009 Draft version of TS-R-1, and Accession No. ML073170368, for the Table of Changes comparison document. The documents may also be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), One White Flint North, 11555 Rockville Pike, Room O1-F21, Rockville, Maryland. The PDR reproduction contractor will copy documents for a fee. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC PDR Reference Staff at (800) 397-4209, (301) 415-4737, or by e-mail to pdr@nrc.gov.

Comments should cite the publication date and page number of this Federal Register document. Comments must be submitted in writing (electronic file on disk in Microsoft Word format preferred) and are to include:

• Name;

• Address;

• Telephone number;

• E-mail address;

• Relevant paragraph number in the document being reviewed, and

• When appropriate, proposed alternative text.

The DOT and the NRC will review the comments received from industry and the public. Based in part on the information received, the U.S. will develop comments on the revised draft of TS-R-1 to be submitted to the IAEA by February 15, 2008.

Comments from the United States and other IAEA member states will be considered at an IAEA Transport Safety Standards Committee (TRANSSC) Meeting to be convened by IAEA on March 3-7, 2008, in Vienna, Austria. Subsequent domestic compatibility rulemakings by both NRC and DOT may be necessary after IAEA final publication of the 2009 revised TS-R-1.

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2007-0216; Directorate Identifier 2007-NM-122-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

On January 5, 2007, we issued AD 2007-02-02, amendment 39-14889 (72 FR 3044, January 24, 2007), for certain McDonnell Douglas Model DC-8-55, DC-8F-54, and DC-8F-55 airplanes; and Model DC-8-60, DC-8-70, DC-8-60F, and DC-8-70F series airplanes. That AD requires a one-time inspection for previous repairs of the aft fuselage skin panel at the longeron 28 skin splice; repetitive inspections for cracks of the same area; related investigative and corrective actions; and reporting inspection findings to the manufacturer. That AD also provides optional actions for extending the repetitive inspection intervals. That AD resulted from a report indicating that a crack has been found in the aft fuselage skin at the longeron 28 skin splice. We issued that AD to detect and correct cracks in the aft fuselage skin at the longeron 28 skin splice, which could lead to loss of structural integrity of the aft fuselage, resulting in rapid decompression of the airplane.

Since we issued AD 2007-02-02, we have determined that the inspections and optional modification/repair described in that AD do not adequately address the unsafe condition. We concluded that more careful inspection of areas already repaired and reinforced by the installation of doublers was needed. Accordingly, we propose to re-define and more clearly describe certain inspections and the optional modification/repair to completely address the unsafe condition described in that AD.

We have evaluated all pertinent information and identified an unsafe condition that is likely to develop on other airplanes of the same type design. For this reason, we are proposing this AD, which would supersede AD 2007-02-02, re-define the requirements of that AD, and clarify the optional modification/repair described in that AD which, if done, would allow extending the repetitive inspection intervals.

This proposed AD would re-define certain requirements and clarify the optional modification/repair of AD 2007-02-02. Since AD 2007-02-02 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:

There are approximately 508 airplanes of the affected design in the worldwide fleet. The FAA estimates that 244 airplanes of U.S. registry would be affected by this proposed AD. The average labor rate is $80 per work hour. This proposed AD would add no additional costs; however, we are repeating the costs from AD 2007-02-02 for the convenience of affected operators.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0215; Directorate Identifier 2007-NM-216-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

On August 14, 2006, we issued AD 2006-17-14, amendment 39-14735 (71 FR 49337, August 23, 2006), for certain Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. That AD requires inspecting contactors 1K4XD, 2K4XD, and K4XA to determine the type of terminal base plate, and applying sealant on the terminal base plates, if necessary. That AD resulted from incidents of short circuit failures of certain alternating current (AC) contactors located in the avionics bay. We issued that AD to prevent short circuit failures of certain AC contactors, which could result in arcing and consequent smoke or fire.

The preamble to AD 2006-17-14 explains that we consider the requirements “interim action” and were considering further rulemaking. We now have determined that further rulemaking is indeed necessary, and this proposed AD follows from that determination.

Bombardier has issued Service Bulletin 601R-24-123, Revision B, dated February 16, 2007. The service bulletin describes the following actions, depending on the airplane configuration:

• Doing a visual inspection to determine if AC utility bus contactors 1K4XD and 2K4XD, part number (P/N) D-18ZZA, and the AC service bus contactor K4XA, P/N D-7GRZ, have a terminal base plate made from non-G9 melamine material (Ultem 2200 material or black in color), and doing applicable corrective actions. The corrective actions include replacing damaged terminal lugs with new lugs, repairing or replacing damaged wire with new wire, and replacing a certain AC service or utility bus contactor with a new one; as applicable.

• Changing the service bulletin number on the mounting tray of the contactors.

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, mandated the service information and issued Canadian airworthiness directive CF-2006-17R1, dated May 30, 2007, to ensure the continued airworthiness of these airplanes in Canada.

These airplanes are manufactured in Canada and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, TCCA has kept the FAA informed of the situation described above. We have examined TCCA's findings, evaluated all pertinent information, and determined that AD action is necessary for airplanes of this type design that are certificated for operation in the United States.

This proposed AD would supersede AD 2006-17-14 and would continue to require inspecting contactors 1K4XD, 2K4XD, and K4XA to determine the type of terminal base plate, and applying sealant on the terminal base plates if necessary. This proposed AD also would require accomplishing the actions specified in the service bulletin described previously, which would constitute terminating action for the requirements of this proposed AD.

AD 2006-17-14 affects Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes, certificated in any category; serial numbers 7003 through 7990 inclusive and 8000 and subsequent. This proposed AD would limit the applicability to those airplanes having serial numbers 7003 through 7990 inclusive and 8000 through 8070 inclusive. This change parallels the applicability of the Canadian airworthiness directive CF-2006-17R1.

The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0213; Directorate Identifier 2007-NM-233-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2007-11, dated August 9, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Bombardier has issued Service Bulletins 8-33-53, Revision A; and 84-33-10, Revision A; both dated March 14, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 186 products of U.S. registry. We also estimate that it would take about 3 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $44,640, or $240 per product.

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0214; Directorate Identifier 2007-NM-224-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We have received reports of interference between the potable water supply hose and/or gray water drain hose at the aft lavatories with the fuel line and/or power feeder cables of the auxiliary power unit (APU) located below the aft cabin floor, on McDonnell Douglas Model 717-200 airplanes. A production quality line check determined that, due to a manufacturing process error, airplanes were delivered with a potable water drain hose that does not conform to design specifications. As a result, the potable water supply hose and/or gray water hose causes chafing with the fuel line and/or power feeder cables of the APU. These conditions, if not corrected, may cause arcing and sparking, and/or fuel leaking, and consequent fire or explosion.

We have reviewed Boeing Alert Service Bulletin 717-38A0004, Revision 1, dated August 15, 2007. The service bulletin describes the following procedures:

• Installing an additional support bracket for the gray water drain hose.

• Replacing the screw of the support bracket of the potable water supply hose with a new screw and installing a spacer.

• Doing detailed inspections to detect interference or wear damage of the potable water supply hose, gray water drain hose, and fuel lines and power feeder cables of the auxiliary power unit.

• Doing applicable corrective actions. The corrective actions include repairing power feeder cables and fuel lines of the APU, and contacting Boeing for repair, as applicable.

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between the Proposed AD and Service Bulletin.”

Although the service bulletin specifies that operators may contact the manufacturer for disposition of certain repair conditions, this proposed AD would require operators to repair those conditions using a method approved by the FAA.

There are about 123 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 95 airplanes of U.S. registry. The proposed actions would take about 70 work hours per airplane, at an average labor rate of $80 per work hour. The manufacturer states that it will supply required parts to the operators at no cost. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $532,000, or $5,600 per airplane.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0212; Directorate Identifier 2007-NM-237-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2007-0169, dated June 15, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).

Among other actions, SFAR 88 requires certain type design ( i.e. , type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.

In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.

The Joint Aviation Authorities (JAA) has issued a regulation that is similar to SFAR 88. (The JAA is an associated body of the European Civil Aviation Conference (ECAC) representing the civil aviation regulatory authorities of a number of European States who have agreed to co-operate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks.

We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

Saab has issued Service Bulletin 340-28-025, dated February 26, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 218 products of U.S. registry. We also estimate that it would take about 50 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $1,500 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $1,199,000, or $5,500 per product.

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The National Oceanic and Atmospheric Administration (NOAA) has proposed draft revised management plans, revised designation documents, and revised regulations for the Cordell Bank National Marine Sanctuary (CBNMS), Gulf of the Farallones National Marine Sanctuary (GFNMS), and Monterey Bay National Marine Sanctuary (MBNMS). The proposed regulations would revise and provide greater clarity to existing regulations. In particular, NOAA proposed changes to prohibitions regarding “discharge and deposit” in the MBNMS, and prohibiting discharging or depositing most matter from cruise ships.

On May 11, 2007 NOAA received a request from the California State Water Resources Control Board to prohibit discharges from certain vessels in national marine sanctuaries offshore California. In addition, on August 10, 2007, the California Coastal Commission voted to concur with the consistency finding the JMPR actions are consistent with the policies of the California Coastal Management Program, on the condition that NOAA revise the proposed discharge and deposit regulation to prohibit vessels of 300 gross registered tons (GRT) or more from discharging sewage or graywater into the waters of the sanctuaries. After reviewing public comments on the proposed regulations, considering the California Coastal Commission's federal consistency review (per the Coastal Zone Management Act; 16 U.S.C. 1451 et seq. ), and further analyzing vessel discharge issues, NOAA decided to revise the CBNMS, GFNMS, and MBNMS proposed discharge regulations to prohibit discharges of all sewage from vessels 300 gross registered tons (GRT) or more with the capacity to hold sewage while within the sanctuary; and in the MBNMS limit the exception for graywater discharges to vessels less than 300 GRT and vessels 300 GRT or more without the capacity to hold graywater while within the MBNMS. The revised proposed regulations will include prohibitions satisfying the request from the State of California for the CBNMS, GFNMS, and MBNMS.

The SDEIS, in conjunction with the concomitant supplemental proposed rule, will evaluate the revised proposed action and provide the public with an opportunity for additional review and comment.

The Commission has long established and enforced speculative position limits for futures contracts on various agricultural commodities. The Commission periodically reviews these Federal speculative position limits, which are set out in Commission regulation 150.2. 1 In this regard, the Commission has reviewed the existing levels for Federal speculative position limits and is now proposing to increase these limits for all single-month and all-months-combined positions in all commodity markets enumerated in Commission regulation 150.2, except Chicago Board of Trade (“CBT”) Oats, based on the formula set out in Commission Regulation 150.5(c). In particular, the Commission is proposing to increase levels for single-month and all-months-combined positions for CBT Corn, Soybeans, Wheat, Soybean Oil, and Soybean Meal; Minneapolis Grain Exchange (MGE) Hard Red Spring Wheat; Kansas City Board of Trade (KCBT) Hard Winter Wheat, and New York Board of Trade (NYBOT) Cotton No. 2. The spot month limits for all of these commodities would remain unchanged. In addition, the Commission is also proposing to aggregate traders' positions for purposes of ascertaining compliance with Federal speculative position limits when a DCM lists for trading a futures contract that shares substantially identical terms with a Regulation 150.2-enumerated contract listed on another DCM, including a futures contract that is cash-settled based on the settlement prices for a futures contract that is already enumerated.

Speculative position limits have been a tool for the regulation of the U.S. futures markets since the adoption of the Commodity Exchange Act of 1936. Section 4a(a) of the Commodity Exchange Act (Act), 7 U.S.C. 6a(a), states that:

Accordingly, section 4a(a) provides the Commission with the authority to:

This longstanding statutory framework providing for Federal speculative position limits was supplemented with the passage of the Futures Trading Act of 1982, which acknowledged the role of exchanges in setting their own speculative position limits. The 1982 legislation also provided, under section 4a(e) of the Act, that limits set by exchanges and approved by the Commission were subject to Commission enforcement.

Finally, the Commodity Futures Modernization Act of 2000 (“CFMA”) established designation criteria and core principles with which a DCM must comply to receive and maintain designation. Among these, Core Principle 5 in section 5(d) of the Act states:

As outlined above, the regulatory structure is administered under a two-pronged framework. Under the first prong, the Commission establishes and enforces speculative position limits for futures contracts on a limited group of agricultural commodities. These Federal speculative position limits are enumerated in Commission regulation 150.2, and apply to the following futures and option markets: CBT Corn, Oats, Soybeans, Wheat, Soybean Oil, and Soybean Meal; MGE Hard Red Spring Wheat; NYBOT Cotton No. 2; and KCBT Hard Winter Wheat. Under the second prong, individual DCMs establish and enforce their own speculative position limits or position accountability provisions, subject to Commission oversight and separate authority to enforce exchange-set speculative position limits approved by the Commission. Thus, responsibility for enforcement of speculative position limits is shared by the Commission and the DCMs. 2

The Commission is proposing several revisions to the Federal speculative position limit levels found in regulation 150.2 based upon its experience in administering these limits and the open interest formula found in Commission Regulation 150.5. Under the proposed revisions, spot month limits would remain unchanged from the current levels, but every single-month and all-months-combined position limit, except for CBT Oats, would be increased based upon open interest data for the most recent calendar year (2006). For all-months-combined levels, the Commission proposes to amend the limits set forth in Regulation 150.2 to the maximum levels permitted under the open interest formula, and to adjust the single month limits to reflect the existing ratio of single month to all-months-combined levels. With respect to the single month limits, a strict application of the open interest formula contained in regulation 150.5 would have resulted in somewhat lower single month limits for some commodities and higher limits for others than those proposed below. However, the Commission believes that maintaining the existing ratios between single-month and all-months-combined speculative position limit levels is of benefit to the marketplace, and thus the Commission is proposing to establish single-month limits that are consistent with that approach. 3 The open interest formula does not justify an increase in the CBT Oats single month or all-months-combined limits, and the Commission does not propose any change in their levels at this time.

In addition, with respect to the MGE and KCBT Wheat contracts, the Commission proposes to maintain parity with the levels proposed for CBT Wheat rather than establish different limits based on the open interest formula for each contract. The Commission first adopted this parity approach in an action to revise position limits in 1993. 4 At that time the Commission concluded that the breadth and liquidity of the cash markets underlying the KCBT and MGE Wheat contracts justified setting these limits at parity with little risk of regulatory harm from such action. 5 The Commission continues to believe that the breadth and liquidity of underlying cash markets, as well as continued growth in open interest, for the KCBT and MGE Wheat contracts support maintenance of these speculative position limit levels at parity with one another. 6

Finally, the Commission is also proposing to aggregate traders' positions for purposes of ascertaining compliance with Federal speculative position limits when a DCM lists for trading a futures contract that shares substantially identical terms with a Regulation 150.2-enumerated contract listed on another DCM, including a futures contract that is cash-settled based on the settlement prices for a futures contract that is already enumerated. In this regard, when the Commission last amended regulation 150.2, it clarified its practice of aggregating traders' positions when a single DCM lists for trading two or more contracts with substantially identical terms based on the same underlying commodity characteristics, such as the CBT Corn and Mini-Corn futures contracts. 7 At the time it adopted those clarifying amendments, the Commission noted, “that should a DCM list a contract that shared substantially identical terms with a Regulation 150.2-enumerated contract listed on another DCM, the Commission could consider at that time whether to amend regulation 150.2 to likewise apply Federal limits to the newly-listed contract.” Since then, the New York Mercantile Exchange (NYMEX) has listed for trading a Cotton futures contract that is cash-settled based on the settlement price for the NYBOT Cotton No. 2 futures contract. The Commission believes that aggregation of traders' positions in such circumstances is necessary to protect the integrity of the existing limits by removing the ability of a trader to flout the limits by taking a position in the non-encumbered market.

Based on the criteria noted above, the Commission is proposing the following changes to the Federal speculative position limits (additions are underlined, and deletions are struck through).

I. Public Participation

Interested persons are invited to participate in this proposed interpretation by submitting written data, views, or arguments on all aspects of the proposed interpretation. Customs and Border Protection (CBP) also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed interpretation. Comments that will provide the most assistance to CBP in developing these procedures will reference a specific portion of the proposed interpretation, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.

Instructions: All submissions received must include the agency name and docket number for this proposed interpretation. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

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 on regular business days between the hours of 9 a.m. and 4:30 p.m. at the Office of International Trade, Customs and Border Protection, 799 9th Street, NW., 5th Floor, Washington, DC. Arrangements to inspect submitted documents should be made in advance by calling Mr. Joseph Clark at (202) 572-8768.

The maritime cabotage law governing the transportation of passengers was first established by section 8 of the Passenger Vessel Services Act of June 19, 1886 (the “PVSA”), 24 Stat. 81; as amended by section 2 of the Act of February 17, 1898, 30 Stat. 248, formerly codified at 46 U.S.C. App. 289 (now codified at 46 U.S.C. 55103). That statute provided that no foreign vessel shall transport passengers between ports or places in the United States, either directly or by way of a foreign port, under a penalty of $200 (now $300, as promulgated in T.D. 03-11 pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note) for each passenger so transported and landed.

The intent of the maritime cabotage laws, including the PVSA, was to provide a “legal structure that guarantees a coastwise monopoly to American shipping and thereby promotes development of the American merchant marine.” Autolog Corp. v. Regan, 731 F.2d 25, 28 (DC Cir. 1984); see also The Granada, 35 F.Supp. 892, 893, 1940 AMC 1601 (DC Pa 1940) (stating that the legislative aim of section 289 [now 55102] was the creation of a practical monopoly of coastwise and domestic shipping business for United States ships). In other words, the PVSA was enacted to advance the United States merchant marine and fleet by restricting the use of foreign-owned/flagged passenger vessels in United States territorial waters.

Passenger vessel transportation between United States ports has historically been viewed to be part of the coastwise trade after the enactment of the PVSA. This view is premised on the concepts of continuity of the voyage and whether its intended purpose or objective was coastwise transportation. In other words, the PVSA was held to be violated if the coastwise movement was continuous or if the purpose of the trip was a coastwise voyage. (See 18 O.A.G. 445, September 4, 1886; 28 O.A.G. 204, February 16, 1910; 29 O.A.G. 318, February 12, 1912; 30 O.A.G. 44, February 1, 1913; 34 O.A.G. 340, December 24, 1924; and 36 O.A.G. 352, August 13, 1930.)

The CBP regulations promulgated pursuant to the PVSA are found at section 4.80a of title 19 of the Code of Federal Regulations (19 CFR 4.80a) and are reflective of the above cited Office of the Attorney General decisions. These regulations provide, among other things, that a non-coastwise-qualified vessel which “embarks” a passenger at a port in the United States embraced within the coastwise laws (a “coastwise port”) will be deemed to have landed that passenger in violation of the PVSA if the passenger “disembarks” at a different coastwise port on a voyage to one or more coastwise ports and a “nearby foreign port or ports” (as defined in 19 CFR 4.80a(a)(2); see also 19 CFR 4.80a(b)(2)). The terms “embark” and “disembark” are words of art which are defined as going on board a vessel for the duration of a specific voyage, and leaving a vessel at the conclusion of a specific voyage, respectively. ( See 19 CFR 4.80a(a)(4).)

The references in section 4.80a to “nearby foreign ports” (defined in 19 CFR 4.80a(a)(2)) are the results of attempts by CBP to apply an Office of the Attorney General's opinion dated February 26, 1910 (28 O.A.G. 204). In that case, a foreign-flag vessel transported 615 passengers on a voyage around the world, beginning in New York and concluding in San Francisco. The Attorney General opined that since the primary object of the voyage was to visit various parts of the world on a pleasure tour returning home via California, and not to be transported in domestic commerce, the transportation was not in violation of the PVSA.

The 1910 Attorney General's opinion was extended to voyages that included foreign ports other than nearby foreign ports. ( See Treasury Decision (T.D.) 68-285 (33 FR 16558), November 14, 1968.) However, voyages solely to one or more coastwise ports have always been considered predominantly coastwise. Therefore non-coastwise-qualified vessels engaging in such a voyage where passengers temporarily go ashore at a coastwise port have been deemed to have violated the PVSA.

Pursuant to Public Law 109-304, 120 Stat. 1632, enacted on October 6, 2006, Title 46, United States Code, was substantially reorganized and recodified. Consequently, the PVSA is now codified at 46 U.S.C. 55103 and provides that no vessel shall transport passengers between ports or places in the United States, either directly or by way of a foreign port, under a penalty of $300 for each person so transported and landed, except one that: (1) Is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade; and (2) has been issued a certificate of documentation with a coastwise endorsement or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement.

In 2003, Congress enacted Public Law 108-7, Division B, Title II, Section 211, for the purpose of revitalizing the oceangoing U.S.-flag cruise industry in Hawaii (the “2003 Act”). Three oceangoing U.S.-flag cruise ships, PRIDE OF ALOHA, PRIDE OF AMERICA and PRIDE OF HAWAII, were documented with coastwise privileges pursuant to the 2003 Act. These vessels entered regular service in Hawaii in 2004, 2005 and 2006, respectively, and pursuant to the express language of the 2003 Act, are limited in their operation to providing “* * * regular service transporting passengers between or among the islands of Hawaii * * *”

The CBP regulations promulgated pursuant to the PVSA are set forth in 19 CFR 4.80a and have remained unchanged throughout both the recodification of Title 46 of the United States Code and the enactment of the 2003 Act. They provide that a violation of the PVSA occurs when passengers “embark” (board a vessel for the duration of a voyage) a non-coastwise-qualified vessel at one U.S. port, and “disembark” (leave the vessel at the conclusion of a voyage) at a different U.S. port, unless they proceed with the vessel to a “distant foreign port” (i.e., any port not considered a “nearby foreign port” which is defined as any port located in North America, Central America, Bermuda, or the West Indies including the Bahamas). Currently, these regulations do not contain specific criteria for non-coastwise-qualified vessels on itineraries including U.S. ports and either “nearby” or “distant” foreign ports in order for such foreign port calls to be compliant with the PVSA.

To reiterate, the applicable CBP regulations provide that the PVSA is violated when a non-coastwise-qualified vessel transports a passenger on a voyage solely to one or more coastwise ports and the passenger disembarks or goes ashore temporarily at a coastwise port. (19 CFR 4.80a(b)(1).) Furthermore, a violation of the PVSA also occurs when a non-coastwise-qualified vessel transports a passenger on a voyage to one or more coastwise ports and a nearby foreign port or ports (but no other foreign port) and the passenger disembarks at a coastwise port other than the port of embarkation. (19 CFR 4.80a(b)(2).) However, there is no violation of the PVSA when a passenger is on a voyage to one or more coastwise ports and a distant foreign port or ports (whether or not the voyage includes a nearby foreign port or ports) and the passenger disembarks at a coastwise port, provided the passenger has proceeded with the vessel to a distant foreign port. (19 CFR 4.80a(b)(3).)

The U.S. Department of Transportation Maritime Administration (MARAD) has requested that CBP take action to ensure enforcement of the PVSA. MARAD has asked CBP to address the recent activities of foreign-flag passenger vessels in the Hawaiian Islands that are imposing economic hardship on the operations of coastwise-qualified cruise ship operators.

In April of 2007, the operator of the three U.S.-flag cruise vessels operating solely in Hawaii pursuant to the 2003 Act announced their intent to withdraw the PRIDE OF HAWAII from the Hawaii market and redeploy her to Europe. The operator intends to re-flag the vessel to foreign registry, directly resulting in the loss of over 1,100 crewmember jobs. The primary reason cited for this decision is the rapid increase in foreign-flag competition entering the Hawaii market from the West Coast. This competition is evidenced in published cruise itineraries of foreign-flag carriers offering a variety of round trip cruises that depart from a U.S. port, call at several Hawaiian ports, then proceed to Ensenada, Mexico for a brief period, usually in the early morning, and ultimately return to the original U.S. port of embarkation where the passengers disembark to complete their cruise. These cruises are often marketed as “Hawaii cruises” and except for the brief stop in the nearby foreign port of Ensenada, are purely coastwise in nature. It is these cruise itineraries that pose an imminent threat to the two remaining U.S.-flagged, coastwise endorsed passenger vessels that, pursuant to the 2003 Act, are currently engaging in cruise itineraries that include only ports of call within the Hawaiian Islands.

In response to MARAD's concerns, CBP sent letters to two carriers known to operate the itineraries in question, as well as to the Cruise Lines International Association, Inc., stating that CBP believes that these itineraries are contrary to the PVSA because it appears that the primary objective of the Ensenada stop is evasion of the PVSA. The letters further indicated that CBP is taking steps to publish this position.

Accordingly, in this document, CBP is proposing to provide that cruise itineraries for non-qualified coastwise vessels which allow passengers to board at a U.S. port, call at several Hawaiian ports, proceed to a foreign port or ports for a brief period, and then ultimately return to the original U.S. port of embarkation for disembarkation are not consistent with the PVSA and the regulations promulgated pursuant thereto. Specifically, CBP interprets a voyage to be “solely to one or more coastwise ports” even where it stops at a foreign port, unless the stop at the foreign port is a legitimate object of the cruise. CBP will presume that a stop at a foreign port is not a legitimate object of the cruise unless:

(1) The stop lasts at least 48 hours at the foreign port;

(2) The amount of time at the foreign port is more than 50 percent of the total amount of time at the U.S. ports of call; and

(3) The passengers are permitted to go ashore temporarily at the foreign port.

Accordingly, CBP proposes to adopt an interpretive rule under which it will presume that any cruise itinerary that does not include a foreign port call that satisfies each of these three criteria constitutes coastwise transportation of passengers in violation of 19 CFR 4.80a(b)(1).

Background on Viticultural Areas TTB Authority

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the regulations promulgated under the FAA Act.

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

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

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

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

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

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

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

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

Mr. Ralph Jens Carter submitted a petition for the 13.4 square mile Leona Valley viticultural area on behalf of the Antelope Valley Winegrowers Association, the Leona Valley Winery, and Donato Vineyards. The area currently includes 20 acres of vineyards, and more acreage for wine grape growing is under development.

The proposed boundary line defines an area where viticulture is already established or has potential for establishment. Consequently, the area defined is limited to the valley floor and side slopes. The distinguishing features of the proposed viticultural area include the physical characteristics of the San Andreas Fault system, the fault-controlled Leona Valley, and the surrounding, high-elevation mountains. The climate, geology, and soils distinguish the proposed viticultural area from areas outside of the proposed boundary line.

According to the petitioner, the name “Leona” derives from an early rancher named Miguel Leonis, and in the 1880s, a homesteader from Nebraska called the area “Leona Valley.” The “Leona Valley” name identifies a valley, a town within the valley, a ranch (the Leona Valley Ranch), and a festival (the annual Leona Valley Cherry Festival).

The petitioner provides maps that show that the Leona Valley is located in the northeast part of Los Angeles County, California. The “Leona Valley” name appears on the USGS Ritter Ridge, Sleepy Valley, and Del Sur quadrangle maps, which the petitioner uses to define the boundary line of the proposed viticultural area. The Sleepy Valley map also identifies a small town in the valley as “Leona Valley.” A recent atlas identifies both a valley and small town within the proposed viticultural area as “Leona Valley” (The DeLorme Southern and Central California Atlas and Gazetteer, 2005, page 79).

According to the petitioner, and as evidenced by the written boundary description and the USGS Sleepy Valley quadrangle map, the proposed viticultural area includes the town and valley which are both named “Leona Valley.” The proposed boundary line borders the Angeles National Forest to the west and the Antelope Valley and the Mojave Desert to the northeast. Mountains and hills surround all sides of the valley. The floor and side slopes of the Leona Valley influence the shape of the proposed viticultural area, which includes vineyards in remote, but suitable, areas, but excludes steep slopes where erosion is a hazard.

According to the petitioner, historically, the Native American Shoshone Tribe lived as hunters and gatherers in the Leona Valley area. In the mid-1800s, when the Shoshone departed the area, immigrants from Spain and Mexico started cattle ranching. During the 1880s, homesteaders from Nebraska, France, and Germany divided the ranches into smaller parcels for farms.

In the early 1900s the John Ritter family began to plant grapes in the Leona Valley area. The Ritter family winery, Belvino Vineyards, aged wine in a cave for at least 5 years before bottling and selling the wine on national and international markets. During Prohibition, the Ritters ceased producing wine. The petitioner notes that local residents report that zinfandel and mission vines planted in the early 1900s are still growing.

Currently, the proposed Leona Valley viticultural area contains 20 acres of commercial wine grape production on David Reynolds' Leona Valley Winery and an acreage of pinot noir grapes on land owned by Donato Vineyards. Donato Vineyards, at the southeast end of the Leona Valley, plans to develop another 10 acres for growing wine grapes and to start producing wine in 2007-8.

The petitioner states that the distinguishing features of the proposed Leona Valley viticultural area consist of climate, physical features, geology, and soils. As evidence of many of the distinguishing features of the proposed viticultural area, the petitioner cites the Soil Survey of the Antelope Valley Area, California (United States Department of Agriculture, Soil Conservation Service, in cooperation with the University of California Agricultural Experiment Station, 1970).

The soil survey designates the southern and western parts of the Antelope Valley and the Leona Valley, as Major Land Resource Area (MLRA) 19, Southern California Coastal Plain. The petitioner explains that MLRA 19 has a distinctive combination of climate, soils, and mild temperatures, including an annual, 210- to 300-day frost-free period. Also, MLRA 19 is hot and dry in summer and cool and moist in winter. It is suitable to a wide variety of field, fruit, and nut crops. Annual precipitation ranges from 9 to 16 inches in MLRA 19, and irrigation use is routine. According to the soil survey, the land management techniques and cropping systems used in MLRA 19 are different from those used in the adjacent MLRA 30, Mojave Basin and Range, and MLRA 20, Southern California Mountains.

The petitioner also cites the Sunset Western Garden Book, which classifies the Leona Valley area as Zone No. 18, Southern California's Interior Valleys (Sunset Publishing Corporation, Menlo Park, California, 1995). In this zone the continental air mass is a major influence on climate, and the Pacific Ocean determines the climate in the valley only about 15 percent of the time.

According to the petitioner, annual precipitation within the proposed Leona Valley viticultural area ranges from 9 to 12 inches. In the Mojave Desert to the east of the Leona Valley, the range is only 4 to 9 inches. In the mountainous areas surrounding Leona Valley to the south, west, and north, the range is between 12 and 20 inches.

The petitioner states that the growing season of the proposed viticultural area has warm days and cool nights. The cool nights slow the ripening of the grapes, helping the grapes to retain their natural acidity. Air drainage off the slopes of the hills and mountains helps prevent spring frost damage to grapes.

The petitioner submitted comparative data based on the Winkler Climate Classification System. In the Winkler climate classification system, heat accumulation per year defines climatic regions. As a measurement of heat accumulation during the growing season, 1 degree day accumulates for each degree Fahrenheit that a day's mean temperature is above 50 degrees, which is the minimum temperature required for grapevine growth; see “General Viticulture,” by Albert J. Winkler, University of California Press, 1974. Climatic region I has less than 2,500 degree days per year; region II, 2,501 to 3,000; region III, 3,001 to 3,500; region IV, 3,501 to 4,000; and region V, 4,001 or more.

The petitioner states that the air temperatures during the growing season in the proposed viticultural area have an average heat summation of 4,060 degree days, which falls into the low range of region V. The annual heat summation totals of the regions in and around the proposed Leona Valley viticultural area are listed in the table below.

According to USGS maps of the region, the Leona Valley is a low, sloping landform with elevations between 2,932 and 3,800 feet. It is surrounded by higher hills, Portal Ridge, Ritter Ridge, Sierra Pelona, and the mountains of the Angeles National Forest, the highest of which has an elevation of 4,215 feet. According to the petitioner, the Leona Valley has isolated knolls of significantly different elevations and, in places, narrows to a width of a mile.

The petitioner explains that the San Andreas Fault, a major continental fault system, is a significant distinguishing feature of the proposed Leona Valley viticultural area. As shown on the USGS maps of the region, the fault and its tributary faults in the Leona Valley trend southeast to northwest. The petitioner explains that the Leona Valley formed either when two parallel fault lines lifted mountains beside a drop-down area or when erosion over thousands of years caused a deep dissection in the fault zone. Seismic movement along the fault line has formed ridges and isolated hills and exposed various rocks.

The petitioner states that ground water provides a plentiful supply of water for vineyard irrigation within the proposed Leona Valley viticultural area. As shown on the Ritter Ridge, Sleepy Valley, and Del Sur quadrangle USGS maps, many agricultural wells tap into the ground water.

The petitioner explains that relative displacement and a lack of continuity of the rocks on either side of the San Andreas Fault contribute to the complexity, weakening, and erosion of the parent rock. Near some portions of the fault the varying sedimentary strata determine the geologic formation.

Citing a California Department of Conservation Geologic Map, the petitioner notes that the mostly nonmarine and unconsolidated alluvium on the Leona Valley floor is from the Quaternary Period, or about 2 million years old or less. The various types of schist, quartz, granite, and a complex of mixed, Precambrian igneous and metamorphic rocks in the valley contrast with the surrounding hills, which formed on Paleozoic or Mesozoic strata, 65 to 280 million years ago.

The petitioner explains that a fault increases the variety of rock exposed on the surface and eventually results in the formation of a greater variety of soil textures. Thus, the San Andreas fault influenced the properties and mineralogy of the soils in the Leona Valley.

The petitioner states that the soils on the Leona Valley floor differ from those beyond the boundary line of the proposed viticultural area. The surface layer of the soils in the Leona Valley formed in a mixture of soil material that originated on the surrounding mountains and decayed organic matter. Multiple rock types on the valley floor were the parent material of alluvial soils that have diverse mineralogy and texture. The soils on the valley floor are deep and moderately drained; those on the surrounding hills are shallow and excessively well drained.

According to the soil survey, the soils of the proposed Leona Valley viticultural area are mainly the Hanford-Ramona-Greenfield association on alluvial fans and terraces. This association consists of nearly level to moderately steep, well drained, very deep soils that have a surface layer of loamy sand to loam. Hanford soils are well drained. They do not have a hardpan or a compacted clay layer, and are easily worked. Included in this association are some areas of deep, poorly drained Chino loam, which does not have a seasonal high water table. The petitioner explains that to control wetness in poorly drained areas, growers may install artificial drainage or plant competing crops.

The petitioner explains that the Vista-Amagora association is among the dominant soils at higher elevations outside the boundary line of the proposed Leona Valley viticultural area. This association consists of strongly sloping to steep, well drained to excessively drained soils that have a surface layer of coarse sandy loam. South of the valley, in smaller areas, is the Anaverde-Godde association. It consists of moderately steep or steep, well drained soils that have a surface layer of sandy loam or loam.

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

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

TTB concludes that this petition to establish the 13.4 square mile Leona Valley viticultural area merits consideration and public comment, as invited in this notice.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. If we establish this proposed viticultural area, its name, “Leona Valley,” will be recognized as a name of viticultural significance under 27 CFR 4.39(i)(3). The text of the proposed regulation clarifies this point. Consequently, wine bottlers using “Leona Valley” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the viticultural area's name as an appellation of origin. On the other hand, we do not believe that the “Leona” part of the proposed viticultural area name, standing alone, should have viticultural significance if the new area is established. Accordingly, the proposed part 9 regulatory text set forth in this document specifies only the full “Leona Valley” name as a term of viticultural significance for purposes of part 4 of the TTB regulations.

For a wine to be eligible to use as an appellation of origin a viticultural area name or other term specified as being viticulturally significant in part 9 of the TTB regulations, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name or other term, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible to use the viticultural area name or other term as an appellation of origin and that name or other term appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name or other term appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Accordingly, if a new label or a previously approved label uses the name “Leona Valley” for a wine that does not meet the 85 percent standard, the new label will not be approved, and the previously approved label will be subject to revocation, upon the effective date of the approval of the Leona Valley viticultural area.

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

We invite comments from interested members of the public on whether we should establish the proposed viticultural area. We are also interested in receiving comments on the sufficiency and accuracy of the name, boundary, climatic, and other required information submitted in support of the petition. Please provide any available specific information in support of your comments.

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

Although TTB believes that only the full “Leona Valley” name should be considered to have viticultural significance upon establishment of the proposed new viticultural area, we also invite comments from those who believe that “Leona” standing alone would have viticultural significance upon establishment of the area. Comments in this regard should include documentation or other information supporting the conclusion that use of “Leona” on a wine label could cause consumers and vintners to attribute to the wine in question the quality, reputation, or other characteristic of wine made from grapes grown in the proposed Leona Valley viticultural area.

You may submit comments on this notice by one of the following two methods:

• Federal e-Rulemaking Portal: To submit a comment on this notice using the online Federal e-rulemaking portal, visit http://www.regulations.gov and select “Alcohol and Tobacco Tax and Trade Bureau” from the agency drop-down menu and click “Submit.” In the resulting docket list, click the “Add Comments” icon for Docket No. 2007-0066 and complete the resulting comment form. You may attach supplemental files to your comment. More complete information on using Regulations.gov, including instructions for accessing open and closed dockets and for submitting comments, is available through the site's “User Tips” link.

• Mail: You may send written comments to the Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412.

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

If you are commenting on behalf of an association, business, or other entity, your comment must include the entity's name as well as your name and position title. If you comment via http://www.regulations.gov , please enter the entity's name in the “Organization” blank of the comment form. If you comment via mail, please submit your entity's comment on letterhead.

You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.

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

On the Federal e-rulemaking portal, we will post, and you may view, copies of this notice, selected supporting materials, and any electronic or mailed comments we receive about this proposal. To view a posted document or comment, go to http://www.regulations.gov and select “Alcohol and Tobacco Tax and Trade Bureau” from the Agency drop-down menu and click “Submit.” In the resulting docket list, click the appropriate docket number, then click the “View” icon for any document or comment posted under that docket number.

All submitted and posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including e-mail addresses. We may omit voluminous attachments or material that we consider unsuitable for posting.

You also may view copies of this notice, all related petitions, maps, and other supporting materials, and any electronic or mailed comments we receive about this proposal by appointment at the TTB Information Resource Center, 1310 G Street, NW., Washington, DC 20220. You may also obtain copies at 20 cents per 8.5 x 11-inch page. Contact our information specialist at the above address or by telephone at 202-927-2400 to schedule an appointment or to request copies of comments or other materials.

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

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

N.A. Sutton of the Regulations and Rulings Division drafted this notice.

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

On October 17, 2007, the Commission published revisions to its rules implementing the FOIA. 72 FR 58790. The comment period ended on November 16, 2007. The Commission received a request that the comment period be reopened. Recognizing that the Commission's rules implementing the FOIA impact the public, the Commission has agreed to reopen the comment period in order to extend the opportunity of the interested public to express any comments on the proposed rules. Comments on the proposed rules must be submitted on or before November 30, 2007.

In the Final Rules Section of this Federal Register , EPA is approving the State's SIP submittals as a direct final rule without prior proposal because the Agency views them as noncontroversial and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM) in WT Docket No. 07-250 released November 7, 2007. The complete text of the NPRM is available for public inspection and copying from 8 a.m. to 4:30 p.m. Monday through Thursday or from 8 a.m. to 11:30 a.m. on Friday at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. [The NPRM may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-488-5300, facsimile 202-488-5563, or you may contact BCPI at its Web site: http://www.BCPIWEB.com. When ordering documents from BCPI please provide the appropriate FCC document number, FCC 07-250. The NPRM is also available on the Internet at the Commission's Web site through its Electronic Document Management System (EDOCS): http://hraunfoss.fcc.gov/edocs_public/SilverStream/Pages/edocs.html.

Initial Paperwork Reduction Act of 1995 Analysis: This document contains proposed information collection requirements. 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 (PRA) of 1995, Pub. L. 104-13. Public and agency comments are due on or before January 22, 2008. 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, Pub. L. 107-198 (see 44 U.S.C. 3506(c)(4)), the Commission seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” The Commission notes, however, that § 213 of the Consolidated Appropriations Act 2000, Pub. L. 106-113, provides that rules governing frequencies in the 746-806 MHz Band become effective immediately upon publication in the Federal Register without regard to certain sections of the Paperwork Reduction Act. The Commission is therefore not inviting comment on any information collections that concern frequencies in the 746-806 MHz Band.

To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the web page http://www.reginfo.gov/public/do/PRAMain, (2) look for the section of the web page called “Currently Under Review,” (3) click on the downward-pointing arrow in the “Select Agency” box below the “Currently Under Review” heading, (4) select “Federal Communications Commission” from the list of agencies presented in the “Select Agency” box, (5) click the “Submit” button to the right of the “Select Agency” box, (6) when the list of FCC ICRs currently under review appears, look for the title of this ICR (or its OMB control number, if there is one) and then click on the ICR Reference Number to view detailed information about this ICR.”

For additional information or copies of the information collection(s), contact Cathy Williams at (202) 418-2918.

Please send your PRA comments to Nicholas A. Fraser, Office of Management and Budget, via Internet at Nicholas_A._Fraser@omb.eop.gov or via fax at (202) 395-5167 and to Cathy Williams, Federal Communications Commission, Room 1-C823, 445 12th Street, SW., Washington, DC or via Internet at Cathy.Williams@fcc.gov.

The proposed information collection requirements that the Commission seeks public comment on are as follows:

OMB Control No.: 3060-0999.

Title: Section 20.19, Hearing Aid Compatible Mobile Handsets (Hearing Aid Compatibility Act).

Form Number: Not applicable.

Type of Review: Revision of a currently approved collection.

Respondents: Business or other for-profit.

Estimated Number of Respondents: 925.

Estimated Time per Response: 3 hours—160 hours.

Frequency of Response: Annual reporting requirement; Third party requirement.

Estimated Total Annual Burden: 6,975 hours.

Estimated Total Annual Costs: None.

Nature of Response: Mandatory.

Nature and Extent of Confidentiality: There is no need for confidentiality with this information collection.

Privacy Act Impact Assessment: No impact(s).

Needs and Usage: On November 7, 2007, the Commission released WT Docket No. 07-250; FCC 07-192. Commission rules require digital wireless phone manufacturers and service providers to make available a certain number of digital wireless phones that meet specific performance levels set forth in an established technical standard. The phones must be made available according to an implementation schedule specified in Commission rules. To monitor the progress of implementation, it is proposed that digital phone manufacturers and service providers submit reports annually from 2008 through 2012. These parties currently submit reports to the Commission; however, the Commission is proposing to revise the reporting criteria for these parties.

The Commission proposes to require that manufactures include in their reports to the Commission the following information: digital wireless phones tested; Compliant phone models using the FCC ID number and ratings according to C63.19; status of product labeling; outreach efforts; total numbers of compliant phone models offered as of the time of the report; and information pertaining to product refresh. The Commission is proposing that service providers include in their reports the following information: compliant phone models using the FCC ID number and ratings according to C63.19; status of product labeling; outreach efforts; information related to the retail availability of compliant phones; total numbers of compliant and non-compliant phone models offered as of the time of the report; and the “tiers” into which the compliant phones fall.

In addition to these criteria, the Commission proposes to require both manufacturers and service providers to provide the model number and FCC ID directly associated with each model that they are reporting as compatible, together with the “M” and “T” rating that each such model has been certified as achieving under the ANSI C63.19 standard. The Commission further proposes to require that these reports include the air interface(s) and frequency band(s) over which each compatible model operates.

The Commission is seeking OMB approval for the revised proposed reporting criteria, if adopted by the Commission, the reports will be submitted annually by digital phone manufacturers and services provider through 2012.

1. In this NPRM, the Commission takes steps to ensure that hearing aid users will continue to benefit from the convenience and features offered by the newest wireless communications systems being provided to American consumers. The actions proposed by the Commission are designed to take account of an evolving marketplace of new technologies and services. The proposals set forth in this NPRM draw upon recommendations proposed in the Staff Report. Several of these proposals, in turn, are based on an interconnected set of rule changes set forth in the Joint Consensus Plan recently developed jointly by industry and representatives for the deaf and hard of hearing community. The specifics of the Joint Consensus Plan, along with a proposed model rule, are contained in the Supplemental Comments of the Alliance for Telecommunications Industry Solutions (ATIS). ATIS states that its working group developed this comprehensive plan reflecting the joint input of the wireless industry and consumers with hearing loss. In a separate petition, American National Standards Institute (ANSI) supports the adoption of an updated technical standard as proposed in the Joint Consensus Plan, and it states that the new standard includes further improvements that reflect changes in technology, and efficiencies and improvements in testing procedures.

2. In the NPRM, the Commission seeks comment on recommendations in the Staff Report and on the various proposals set forth in the Joint Consensus Plan. The Commission makes a number of tentative conclusions based on the broad consensus established by those participating in the development of the Joint Consensus Plan. In the context of several of these tentative conclusions, the Commission requests comment regarding the appropriate deployment regime for Tier II/III carriers and other service providers that are not Tier I carriers, which generally were not included within the Joint Consensus Plan's framework. The Commission requests that manufacturers and service providers be as specific as possible regarding the impact of these proposals on their operations, and that any alternative proposals be supported by evidence as to their feasibility and effectiveness. Affected consumers, including those with hearing difficulties, should support any new proposals with explanations of not only the benefits but also the costs to service providers, manufacturers, or other consumers, and why such costs are outweighed by the benefits. The Joint Consensus Plan contains many interrelated provisions, and the Commission notes the emphasis that its proponents place on adopting the plan as a whole in order to maintain the balance achieved during negotiations by its various member participants.

3. Requirements and Deadlines for Hearing Aid-Compatible Handset Deployment.

4. The Commission seeks comment on a set of new requirements for manufacturers and certain carriers as they deploy hearing aid-compatible handsets in the years to come. The first proposal in the Joint Consensus Plan is to modify several deployment deadlines as set forth in § 20.19 of the Commission's rules, 47 CFR 20.19, including the requirement that manufacturers and wireless service providers ensure that, by February 18, 2008, at least 50 percent of their handset models over each air interface offered meet an M3 or better rating for RF interference reduction, as specified in ANSI Standard C63.19, as well as the requirements for deployment of handsets that meet a T3 rating for inductive coupling capability under the same standard. In this context, the plan also proposes new “product refresh” and “multiple tier” requirements in order to ensure people with hearing loss have access to new, advanced devices.

5. Deployment Benchmarks and Deadlines. The Commission seeks comment on tentative conclusions to adopt new hearing aid-compatible handset deployment benchmarks for manufacturers and service providers between 2008 and 2011, consistent with those recommended in the Staff Report and proposed as part of the Joint Consensus Plan. These include proposals (1) to modify requirements currently in effect for February 18, 2008, and establish future requirements to provide handsets that incorporate reduced RF interference in recognition of technology and market obstacles currently faced by manufacturers and service providers, and (2) to provide more options to consumers with severe hearing loss by imposing additional requirements on both service providers and manufacturers to make handsets available that are compatible with hearing aids operating in the telecoil mode. In addition to seeking comment on the recommendations and proposals in the Joint Consensus Plan, the Commission asks commenters to address specifically questions raised in the Staff Report, including those concerning appropriate benchmarks and deadlines to apply to service providers other than Tier I carriers, and those concerning whether staggering of deadlines between manufacturers and service providers is appropriate.

6. M3- and T3-Rated Benchmarks/Deadlines. Section 20.19(c) and (d) of the Commission's rules contains the current deadlines for deployment of public mobile radio service handset models that meet both the M3 (or higher) and T3 (or higher) ratings for compatibility with hearing aids. The Commission seeks comment on modifying these provisions consistent with the proposals in the Joint Consensus Plan, both by adopting reduced and alternative benchmarks for deploying handsets compatible with hearing aids operating in acoustic coupling (also known as microphone) mode and by increasing future benchmarks for compatibility with hearing aids operating in inductive coupling (also known as telecoil) mode.

7. With respect to acoustic coupling compatibility, in recognition of marketplace and technical realities, the Commission seeks comment on a tentative conclusion to adopt a lower threshold for equipment manufacturers to deploy M3-rated (or higher) handsets. In place of the current requirement that 50 percent of handset models per air interface meet hearing aid compatibility standards by February 18, 2008, the Commission proposes that manufacturers be obligated, for each air interface for which they offer handsets, to meet the requirement, as proposed in the Joint Consensus Plan, of 33% of manufacturers' non- de minimis portfolio models offered to service providers in the United States. Thus, for example, if a manufacturer produces a total of 12 models capable of operating over the GSM air interface (regardless of whether these are single-mode or multi-mode models), at least four of those models would have to meet an M3 or higher rating. Moreover, a multi-mode handset could not be counted as compatible over any air interface unless it is compatible in all air interfaces over which it operates.

8. The Commission notes that technological issues make it difficult to produce a wide variety of Global System for Mobile Communications (GSM) handsets that both meet the M3 standard for reduced RF interference for acoustic coupling and include certain popular features, and the Commission seeks to promulgate rules that are as technology-impartial as possible. The Commission tentatively concludes that, in context with the other proposals in the Joint Consensus Plan, these reduced thresholds strike an appropriate balance between maintaining technological neutrality and ensuring availability of hearing aid-compatible handsets to affected consumers. The Commission asks whether differences, in terms of the nature of the signals emitted and burdens of the formulae used to calculate compliance ratings under the ANSI technical standard, support its tentative conclusion and justify this lower benchmark. The Commission asks whether either the GSM or Code Division Multiple Access (CDMA) air interface have an advantage over the other in terms of rule compliance. The Commission asks whether any impacts to hard of hearing consumers due to the production of fewer numbers of compatible handset models would be offset by the requirement that manufacturers regularly include new compatible models in their product lines.

9. For Tier I (nationwide) carriers, the Commission seeks comment on a tentative conclusion to adopt an alternative schedule to the 50 percent M3-rated (or higher) February 18, 2008 deployment deadline. These carriers would have the choice of complying with either the current rule or a new schedule based on total numbers of compliant handset models. This schedule would create obligations for service providers to provide an increasing number of handset models per air interface over which they offer service by future dates as follows: February 18, 2008: eight M3-rated (or higher) handset models; February 18, 2009: nine M3-rated (or higher) handset models; February 18, 2010: ten M3-rated (or higher) handset models. The Commission seeks comment on its tentative conclusion to modify the rule as proposed.

10. Along with these proposals to modify the deployment requirements regarding reduced RF interference for acoustic coupling compatibility, the Commission also seeks comment on a tentative conclusion to increase the benchmarks for manufacturers' and Tier I carriers' deployment of handsets meeting a T3 (or higher) rating for inductive coupling capability. Because customers' options for handsets that enable inductive coupling with telecoils have been more limited than for acoustic coupling compatibility, additional requirements of this nature could benefit some of the most disadvantaged wireless users in the deaf and hard of hearing community, who are more likely to rely on telecoil-equipped hearing aids. Under its proposed rule changes, the Commission would now require manufacturers to meet the greater of two measures for each air interface for which they offer handsets in 2009 through 2011, as follows: a minimum of two T3-rated (or higher) models for each air interface for which the manufacturer offers four or more handset models to service providers; or at least 20%/25%/33% of models that the manufacturer offers over each air interface rated T3 (or higher) by February 18, 2009/2010/2011 respectively. As proposed, these percentage calculations would be rounded down to the nearest whole number in determining the minimum number of handsets to be produced. In addition, the Commission notes that each non- de minimis manufacturer would still be required to produce at least two or more T3-rated (or higher) handsets per air interface for which it offers handsets.

11. Service providers are currently not required to deploy additional T3-rated (or higher) handset models once they have met the September 18, 2006 deadline for offering two compliant handset models per air interface. Under its proposed rule changes, the Commission would now require Tier I carriers to meet the lesser of the following requirements for each air interface over which they offer service: (1) February 18, 2008: 33% of digital wireless handset models are T3-rated (or higher); or (2) a schedule as follows: February 18, 2008: three T3-rated (or higher) handsets; February 18, 2009: five T3-rated (or higher) handsets; February 18, 2010: seven T3-rated (or higher) handsets; and F ebruary 18, 2011: Ten T3-rated (or higher) handsets. The Commission tentatively concludes that these increased requirements for deployment of T3-rated (or higher) handsets are necessary and appropriate for both manufacturers and Tier I carriers. The Commission seeks comment on its tentative conclusion. The Commission also seeks comment on any additional deadlines or deployment milestones that may be appropriate to adopt at this time, such as any future M4 or T4 handset compliance requirements.

12. Service Providers Other than Tier I Carriers. As explained in the Staff Report, the Joint Consensus Plan is silent with respect to service providers that are not Tier I carriers. Accordingly, the Commission seeks comment generally on the appropriate deployment regime for these wireless service providers. As a general matter, in order to make the benefits of compatible handsets available to all consumers who need them, all service providers should be expected to meet the same benchmarks unless they cannot reasonably do so. At the same time, the Commission notes that in the past numerous Tier II and Tier III carriers have requested, and many have been granted, extension of compatible handset deployment deadlines because they were unable timely to obtain compliant handsets in sufficient quantities from manufacturers. The Commission therefore asks commenters to address whether there is anything inherent in the characteristics of Tier II and Tier III carriers, resellers, and mobile virtual network operators (MVNOs), or other categories of smaller service providers, that would prevent them from meeting either the RF interference reduction or inductive coupling-capable handset numbers and percentages set out for Tier I carriers.

13. Staggered Deadlines for Deployment. The Commission also specifically seeks comment on whether, with respect to offering compliant handsets, the Commission should require different, staggered deployment deadlines for manufacturers and service providers, such as whether manufacturers should be required to offer compliant handsets at some time prior to all service providers, or to some subset of smaller providers. The Commission notes that many Tier II and Tier III carriers have requested waivers of hearing aid compatibility deadlines, complaining among other things that manufacturers have not made compliant handsets available sufficiently in advance of the deadline so that these service providers could, in turn, make them available to consumers. Instituting a short interval between the manufacturers' and some or all service providers' deadlines might be appropriate to address the circumstances that have engendered these waiver requests. Because of market realities, Tier II and Tier III carriers may have more difficulty than Tier I carriers in obtaining handsets. The Commission notes that the Joint Consensus Plan does not request any staggered deadlines for Tier I carriers. The Commission asks commenters to address specifically whether staggering of deadlines is appropriate in the context of its proposed future hearing aid compatibility requirements, and if so, for how long and for what subset of service providers.

14. New Requirements for Handset Deployment. The Commission proposes, in accord with the Staff Report and the Joint Consensus Plan, additional specific measures to ensure that such a range of compatible handset models will be available so that consumers will have access to hearing aid-compatible handsets with the newest features, as well as more economical models.

15. The Commission tentatively concludes that its rules should require equipment manufacturers to meet a “product refresh” requirement, as recommended in the Staff Report and described in the Joint Consensus Plan. This proposal would mandate that manufacturers meet RF interference reduction thresholds for acoustic coupling compatibility in some of their new models each year, enough so that, for manufacturers offering four or more handsets using a given air interface, half of the minimum required number of M3-rated or higher handset models would be new models introduced during the calendar year. To make this calculation, the number of new compliant models to be produced would be 50 percent of the total required number of compliant models, rounded up to the nearest whole number. For manufacturers that produce three total M3-rated models per air interface, at least one new M3-rated (or higher) model shall be introduced every other calendar year. If a manufacturer is not introducing a new model in a calendar year, then under the proposed rule it would not be required to refresh its list of compliant handsets.

16. Notwithstanding its tentative conclusion, the Commission seeks comment on whether this requirement should be modified in any way. For example, it asks whether there are any modifications that would better promote hard of hearing individuals' access to new handset models without causing undue costs to other parties. The Commission also asks whether the proposed “product refresh” requirement would sufficiently ensure that, over time, compatible phones become available across all frequency bands as standards are promulgated and equipment is rolled out. The Commission also solicits comment on whether there are any possible less burdensome or intrusive approaches or incentives that would enable the deaf and hard of hearing community to select fresh models on a regular basis. For any proposal, the Commission asks commenters to address the disadvantages of deviating from the standard proposed under the Joint Consensus Plan. Finally, the Commission seeks comment on any implementation issues, such as reporting requirements that may be necessary with regard to these obligations, and any enforcement issues.

17. In addition to a “product refresh” rule for manufacturers, the Commission tentatively concludes that its hearing aid compatibility rules should require Tier I carriers to offer to consumers hearing aid-compatible handsets with different levels of functionality. As described in the Staff Report, a proposed requirement set forth in the Joint Consensus Plan would obligate Tier I carriers to offer handset models from “multiple tiers,” and include a concomitant requirement that these providers’ reports include information on the carriers' implementation of tiering. In the context of the language in the Joint Consensus Plan stating carriers will self-define their tiers, the Commission interprets the term “tiers” to refer to levels of functionality. The Commission further intends functionality to include the extent to which a handset model has the capability to operate over multiple frequency bands for which hearing aid compatibility standards have been established. The Commission seeks comment on a tentative conclusion to require Tier I carriers to provide access to handsets with different levels of functionality. If commenters support this tentative conclusion, the Commission asks them to specifically address how such an obligation might be effectively implemented and enforced in its rules.

18. 2007 ANSI C63.19 Technical Standard.

19. The Commission seeks comment on changing the current hearing aid compatibility technical standard codified in § 20.19(b) of the Commission's rules, 47 CFR 20.19(b). It seeks comment on a tentative conclusion to change the current practice permitting use of multiple versions of ANSI C63.19 and, instead, codify a single 2007 version of the testing standard. ANSI C63.19-2007, an updated version of the technical standard for determining hearing aid compatibility, has been recently approved by the Accredited Standards Committee on Electromagnetic Compatibility, C63 TM and adopted by ANSI. Under the Commission's proposal, this new 2007 standard would replace the 2001, 2005 draft, and 2006 versions of the technical standard. The Commission explains that it would retain the current practice of permitting the Chief of Wireless Telecommunications Bureau (WTB), in coordination with the Chief of Office of Engineering & Technology (OET), on delegated authority, to approve use of future versions of the standard, including multiple alternative versions, to the extent that the changes do not raise major compliance issues.

20. ANSI filed a petition this year requesting that the Commission adopt this 2007 revision of the ANSI C63.19 technical standard as the permanent standard. ANSI states in its petition that further improvements have been made to the technical standard to reflect changes in technology, and efficiencies and improvements in testing procedures. Because the standard that has been adopted by ANSI is stricter in some respects than prior versions, and is the result of broad participation from diverse groups, the Commission proposes that the standard be codified in its rules in order to better promote the development of hearing aid-compatible handsets that hearing-impaired consumers can readily use. Commenters should address whether they support such a rule change, and if not, identify an acceptable alternative to its tentative conclusion.

21. The Commission also seeks comment on a tentative conclusion to phase in the 2007 standard. Under this proposal, the Commission would permit both the 2006 and 2007 versions of the standard to be used for new RF interference and inductive coupling hearing aid compatibility certifications through 2009. A newly-certified handset would therefore have to meet, at minimum, an M3 or T3 rating as set forth in either the 2006 or 2007 revision of the ANSI C63.19 standard to be considered compatible, while grants of equipment authorization previously issued under other versions of the standard would remain valid for hearing aid compatibility purposes. Then, beginning on January 1, 2010, the Commission would only permit use of the 2007 version of the standard for obtaining new grants of equipment authorization, while continuing to recognize the validity of existing grants under previous versions of the standard. The Commission seeks comment on whether this two step phase-in period appropriately balances the interests in bringing state-of-the-art compatible handsets to hard of hearing consumers and in avoiding unreasonable burdens on manufacturers and service providers. It also asks commenters to consider whether there are alternative implementations of the 2007 standard that would better serve these goals.

22. Reporting Obligations, Public Information, and Outreach.

23. The Commission seeks comment on proposed requirements relating to manufacturers' and service providers' filing of hearing aid compatibility reports with the Commission, as well as other public information and outreach measures.

24. Reporting. The Commission tentatively concludes not only to continue requiring service providers and manufacturers to report regularly on the availability of hearing aid-compatible products, but to enhance and improve the content of the reports that are filed. As reported in the Staff Report, there is evidence in the record that some of the information in the existing compliance reports may not be as complete or as helpful as possible for consumers, wireless service providers, or the Commission. Furthermore, staff encountered difficulties when verifying the ratings for certain handset models identified in compliance reports, because many of the compliance reports referenced the handset manufacturer and model number but did not include the associated FCC ID. In order to address these shortcomings, the Joint Consensus Plan includes proposed requirements that will render the reports more helpful to consumers and others by providing them with better information concerning the commercial availability of compliant handsets. Specifically, the Joint Consensus Plan recommends that reports include:

25. Manufacturers: digital wireless phones tested; compliant phone models using the FCC ID number and ratings according to C63.19; status of product labeling; outreach efforts; total numbers of compliant phone models offered as of the time of the report; and information pertaining to product refresh.

26. Service providers: compliant phone models using the FCC ID number and ratings according to C63.19; status of product labeling; outreach efforts; information related to the retail availability of compliant phones; total numbers of compliant and non-compliant phone models offered as of the time of the report; and the “tiers” into which the compliant phones fall.

27. The Commission proposes to adopt these reporting criteria and asks commenters to address whether they capture the appropriate information and level of detail. In particular, to clarify the information collection recommended in the Joint Consensus Plan, the Commission proposes to require both manufacturers and service providers to provide the model number and FCC ID directly associated with each model that they are reporting as compatible, together with the “M” and “T” rating that each such model has been certified as achieving under the ANSI C63.19 standard. The Commission would accept the manufacturer's determination of whether a device is a distinct model consistent with the manufacturer's marketing practices, so long as models that have no distinguishing variations of form, features, or user capabilities, or that only differentiate units sold to a particular carrier, are not separately counted as distinct models to customers. The Commission further proposes to require that reports include the air interface(s) and frequency band(s) over which each compatible model operates. The Commission seeks comment on these proposed additional requirements. In addition, the Commission asks whether it should vary the information sought depending on the type of service provider (e.g., Tier I carrier vs. other service provider).

28. The Commission also seeks comment on additional ways to improve the quality and usefulness of the reports, including whether the Commission should require additional information beyond that proposed in the Joint Consensus Plan. Unless commenters support another process, the Commission proposes to authorize Commission staff to develop a standardized reporting format for collecting information.

29. In addition, the Commission seeks comment regarding the schedule under which the Commission should require future reports. Under the proposal contained in the Joint Consensus Plan, the Commission would adopt a staggered schedule whereby manufacturers would be required to provide an annual status report to the Commission beginning November 30, 2007, Tier I carriers would be required to provide an annual status report to the Commission six months later beginning May 30, 2008, and Tier II and III carriers would be required to provide an annual status report beginning May 30, 2009. These reporting requirements would continue annually thereafter through the November report in 2012. The Commission seeks comment on a tentative conclusion to adopt substantially this schedule, but with certain refinements. First, given the timing of this proceeding, the Commission expects that manufacturers and service providers will be required to comply with current rules for November 2007 reporting. To the extent the Commission maintains the current November 17, 2007 reporting deadline during the rulemaking, commenters should consider how the remaining schedule may need to be modified.

30. In addition, the Commission questions the Joint Consensus Plan proposal to adopt a delayed reporting requirement for Tier II and III carriers whereby their next reports would not be required until a year after the Tier I carriers' reports. In light of the recommendations in the Staff Report and its objectives, especially for consumers who receive service from such providers, the Commission seeks comment on whether it serves the public interest to delay their next reports for a period of 18 months to two years from their reports that will be submitted in November 2007, or whether they should instead be held to the same schedule as Tier I carriers in order to provide a steady source of information to consumers and to the Commission. Moreover, given that Tier II and III carriers have already been filing reports regularly, the Commission seeks comment on the extent of the burdens that would be avoided by postponing their first reports as proposed under the Joint Consensus Plan, balanced against the extent of information that would be lost by introducing a gap of 18 months or more in their reporting. Commenters should also address whether the reporting deadlines for Tier II and III carriers should depend on its adoption of staggered deployment deadlines. Finally, if the Commission adopts different reporting deadlines for Tier I versus Tier II and III carriers, the Commission seeks comment on the rules that should apply to resellers and to MVNOs.

31. Public Information and Outreach. In addition to the content and frequency of manufacturer and service provider reports, the Commission seeks comment on other ways to increase the availability of hearing aid compatibility information to consumers, service providers, and other interested parties. As explained in the Staff Report, the Commission's existing databases and websites are of limited value for these purposes. For example, although OET's equipment authorization database has information about hearing aid compatibility ratings associated with manufacturers' equipment, the database maintains such information based on FCC IDs, not handset model numbers, and it does not maintain a single clear, current record associated with each ID. Thus, it is difficult—particularly for an inexperienced user—to search for hearing aid-compatible models based either on the manufacturer's name or on the model's FCC ID. Similarly, the Disability Rights Office (DRO) of the Consumer and Government Affairs Bureau maintains a website that explains the disability access rules and provides contact information for manufacturers and service providers, but this website does not include information regarding the compatibility of particular handset models. As noted in the Staff Report, although a consumer wishing to file a complaint under § 255 of the Communications Act, 47 U.S.C. 255, can locate the designated agent's name and contact information from the Commission's website, no similar information is available under the process governing complaints for violations of hearing aid compatibility requirements. Under the hearing aid compatibility complaint process, consumers are responsible for identifying the agent designated by manufacturers or service providers for service of complaints under 47 CFR 68.418(b). The Commission notes that it extended its part 68, subpart E rules to allow consumers to file informal complaints under those rules if they find that wireless service providers or manufacturers of wireless equipment are not complying with its hearing aid compatibility rules.

32. In recognition of these shortcomings, the Commission seeks comment on potential measures to improve the value of these databases and websites for parties seeking hearing aid compatibility information, including, for example, adding a relevant search function to the equipment authorization database or adding links to manufacturers' and service providers' websites from the DRO's web page. In addition to the ongoing efforts of Commission staff to continue to improve information available to consumers, service providers, and other interested parties, the Commission seeks comment as to any specific measures the Commission should require or take, such as requiring manufacturers to include in their equipment authorization filings the handset models associated with each FCC ID number, and to update this information when they introduce new models. Also, the Commission asks whether it should adopt new part 2 rules to require a filing for permissive changes that includes trade names and model numbers. The Commission also requests comment on whether to require manufacturers and service providers subject to the Commission's hearing aid compatibility rules to follow the same procedures as those applicable to § 255 complaints, and to have the Commission publish hearing aid compatibility designated agents' contact information on the DRO website.

33. The Commission also seeks comment on how it can encourage digital wireless handset manufacturers and service providers to engage in additional outreach efforts to assist consumers with hearing disabilities as they shop for wireless phones. As recommended in the Staff Report, the Commission seeks comment on how best to promote the availability of useful hearing aid compatibility information on manufacturers' and service providers' websites, including whether the Commission should not only encourage but require the posting of such information. The Commission further seeks comment as to what requirements or guidelines, if any, it should provide regarding the content of such postings.

34. Consistent with the recommendations in the Staff Report, the Commission also seeks comment generally on any other ways that wireless manufacturers, service providers, and independent retailers can improve the effectiveness of their in-store testing, consumer education, and other consumer outreach efforts. These efforts would, ideally, include new ways of publicly identifying compliant phones for consumers and audiologists, as well as efforts that independent retailers could take to facilitate such identification. In addition, in order to assist consumers as they shop for wireless phones, the Commission also asks whether there are additional steps it can take to facilitate the flow of information between consumers, manufacturers, and service providers to meet its hearing aid compatibility outreach objectives.

35. Other Components of Joint Consensus Plan, and Related Proposals.

36. As recommended in the Staff Report, the Commission seeks comment on several additional proposals in the Joint Consensus Plan, as well as on matters related to those proposals.

37. Other Spectrum Bands. The Joint Consensus Plan contains a request that the Commission apply the Commission's hearing aid compatibility rules to all spectrum bands that are used for the provision of Commercial Mobile Radio Services (CMRS) in the United States, subject to standards development. The Commission determined earlier this year that all digital CMRS providers, regardless of the particular band in which they were operating, as well as manufacturers of handsets capable of providing such services, should be subject to the hearing aid compatibility requirements set forth in § 20.19 to the extent that a service satisfies the scope provision for hearing aid compatibility set forth in its part 20 rules. The Commission seeks comment generally on whether any further action is necessary or appropriate in this regard, and in particular on several specific questions that relate to the extension of hearing aid compatibility requirements to new frequency bands. First, the Commission seeks comment on how its current hearing aid compatibility requirements apply to mobile satellite service (MSS) providers that offer CMRS and whether any revisions to the hearing aid compatibility rules are appropriate respecting such providers, in order to promote consistent treatment for all CMRS providers that offer functionally equivalent services. In this regard, the Commission asks commenters to address whether it should make a difference if an MSS provider offers service purely through a satellite-based network or through a combined network that relies on both satellite and ancillary terrestrial component (ATC) facilities.

38. Second, the Commission agrees with the recommendation in the Staff Report that standard-setting bodies should strive to develop hearing aid compatibility standards together with technical operating specifications for new frequency bands. The Commission seeks comment on any measures that the Commission should take to promote this practice.

39. Third, the Commission has held that if a handset manufacturer or service provider offers a multi-band handset in order to comply with the hearing aid compatibility requirements, the handset must be hearing aid-compatible in each frequency band over which it operates. The Commission tentatively concludes to codify this requirement in § 20.19 of the rules. The Commission further tentatively concludes, consistent with this principle, that multi-band phones should not be counted as compatible in any band if they operate over frequency bands for which technical standards have not been established. The Commission believes this limitation would conform with consumers' expectation that a phone labeled “hearing aid compatible” is compatible in all its operations. Treating such handsets as not compatible would also create incentives for industry bodies to develop compatibility standards for new frequency bands more quickly. The Commission seeks comment on this tentative conclusion.

40. Fourth, the Commission notes that the ANSI C63.19 standard includes target values for hearing aid compatibility validation procedures for operation over specific air interfaces at frequencies in the ranges of 800-950 MHz and 1.6-2.5 GHz. Accordingly, the Commission tentatively concludes to revise § 20.19(b), 47 CFR 20.19(b), to include services operating over any frequencies within these two bands, to the extent they employ air interfaces for which hearing aid compatibility technical standards have been established and approved by the Commission.

41. In addition, the Commission seeks comment on whether it can, and should, establish a mechanism under which hearing aid compatibility regulations would become applicable to future frequency bands as soon as, or within a defined period after, technical standards are established for relevant air interfaces. Under its current rules, the Commission must modify § 20.19 pursuant to rulemaking to add new services or new frequency bands. Amending § 20.19 so that a rule change is not necessary every time technical standards are established for new services, new air interfaces, or new frequency bands potentially would bring the benefits of compatible handsets more quickly to consumers and would provide greater certainty to all affected parties. In addition, to the extent that manufacturers and service providers are already meeting their obligations to offer defined numbers or percentages of hearing aid-compatible handsets over previously covered services, the automatic extension of its rules to additional frequency bands may not impose significant additional burdens, and may even assist manufacturers and service providers in achieving compliance by permitting them to count multi-band models as compliant. The Commission asks commenters to address both the benefits and the drawbacks of an automatic effectiveness regime, as well as what the specific rules should entail. Under existing rules, the Commission generally must approve revised versions of ANSI C63.19 for such revised standards to take effect for purposes of its hearing aid compatibility requirements. The Commission asks whether a standard should be considered “established” for a new frequency band upon its promulgation by C63, or whether there should be a process for the Commission or its staff to review or approve the standard, and if so what should that process be.

42. Multi-Mode Handsets. The Commission tentatively concludes to adopt the proposal in the Joint Consensus Plan stating that multi-mode handsets do not satisfy § 20.19 for any air interface unless they are compatible in all air interfaces over which they operate. The Commission further tentatively concludes, consistent with its tentative conclusion regarding multi-band handsets, that multi-mode phones should not be counted as compatible in any mode if they operate over air interfaces for which technical standards have not been established. The Commission believes this rule would conform to consumers' expectations and would help promote the rapid development of compatibility standards for new air interfaces. The Commission seeks comment on these tentative conclusions and on any other potential measures to promote the development of compatibility standards for new air interfaces together with technical operating specifications.

43. De Minimis Exception. The Commission adopted a de minimis exception, which relieves wireless service providers and handset manufacturers that offer two or fewer digital wireless handset models in the United States from the hearing aid compatibility compliance obligations. The Joint Consensus Plan proposes that the Commission retain the de minimis exception and clarify that it applies on a per-air interface basis. The Commission notes that it has already clarified that the de minimis exception applies on a per-air interface basis, rather than across a manufacturer's or carrier's entire product line. The Commission tentatively concludes that this clarification should be codified in its rules. The Commission also invite further comment on the question of whether to narrow the de minimis exception.

44. 2010 Further Review. The Joint Consensus Plan proposes that the Commission establish a further review of the hearing aid compatibility rules in 2010. The Commission tentatively concludes to adopt this proposal, and the Commission seeks comment. In particular, given the timing of the obligations the Commission proposes, the Commission seeks comment on whether such a review would be more appropriate at a later date, such as in 2012. The Commission states that once the proposed deployment deadlines have passed and the Commission can assess the effectiveness of any action it takes arising out of its proposals, it may decide to add new or additional obligations, or on the other hand, reduce its oversight role if the state of competition or technology supports such action.

45. Volume Controls. Consistent with the Joint Consensus Plan's recommendation, the Commission urges all interested parties to specifically look into adding volume controls to wireless handsets. The Commission seeks comment on whether any volume control requirements should be incorporated into its rules, and if so what they should be. The Commission also invites comment on interference from handset screen displays, including whether any measures are appropriate to promote the deployment of phones that enable users to turn off their screens.

46. Emerging Technologies.

47. The Commission seeks comment on whether its hearing aid compatibility rules should be modified to address new technologies being used and offered by manufacturers and providers in their wireless handsets and networks. Under current Commission rules, manufacturers and service providers are required to meet the Commission's hearing aid compatibility standards only to the extent that handsets are associated with digital CMRS networks that “offer real-time, two-way switched voice or data service that is interconnected with the public switched network and utilize an in-network switching facility that enables the provider to reuse frequencies and accomplish seamless hand-offs of subscriber calls.” 47 CFR 20.19(a). The Commission seeks comment on whether it should extend some or a portion of the hearing aid compatibility requirements under § 20.19 to wireless handsets that may fall outside the definition of CMRS and the criteria in § 20.19(a), such as handsets that operate on unlicensed Wireless Fidelity (WiFi) networks that do not employ an in-network switching facility that enables the provider to reuse frequencies and accomplish seamless hand-offs. The Staff Report provides several examples of service providers offering access to Voice over Internet Protocol (VoIP) applications over WiFi and other wireless technologies. The Commission agrees with the recommendation in the Staff Report that the Commission should consider whether to change its rules to address these developments.

48. First, the Commission seeks comment generally on the application of its hearing aid compatibility rules to VoIP applications provided over wireless technologies such as WiFi and other emerging technologies. The Commission asks commenters to address how current and anticipated future use of VoIP applications over wireless networks, both interconnected and non-interconnected, would be treated under the interaction of the Hearing Aid Compatibility Act and its rules. 47 U.S.C. 610(b)(2). The Commission asks several questions about the scope and applicability of § 20.19(a) in these situations. Commenters suggesting changes are asked to address not only the policy reasons for their proposed revisions, but also the Commission's legal authority to adopt them.

49. In addition, the Commission solicits comment as to whether any new hearing aid compatibility rules are appropriate to address handsets that combine covered mobile voice operation with data services provided over WiFi networks or other emerging technologies. The Commission notes that such service combinations may be particularly attractive to deaf and hard of hearing consumers, but that its current rules do not necessarily require that any such handsets be hearing aid-compatible if the manufacturer and service provider satisfy their hearing aid compatibility benchmarks using other models. Elsewhere in the NPRM , the Commission tentatively concludes to adopt “product refresh” and “tiering” rules that are intended to ensure consumers who use hearing aids will have access to mobile handsets with a range of functionalities. The Commission seeks comment as to whether these proposed rules appropriately promote the availability of hearing aid-compatible handsets that include data services provided over WiFi networks or other emerging technologies, or whether additional measures are needed. In this regard, the Commission notes that the requirements of § 20.19 apply to handsets used with either voice or data services that fall within its terms. The Commission seeks comment as to the implications of imposing hearing aid compatibility requirements based on the provision of wireless data services, and whether this provision should be changed.

50. Finally, the Commission invites broad comment on what additional regulatory obligations may be appropriate to address the issues raised by emerging wireless technologies, taking into account the statutory goal to promote equal access to communications equipment and services for consumers with hearing loss as well as economic, technological, and legal constraints. Regulation may be appropriate when new technology causes people with hearing disabilities to lose access, but the Commission is unsure what the extent of any access problem may be and what measures may best address any such problem, and the Commission therefore invites commenters to address this question. As emerging technologies progress, the deaf and hard of hearing community should be able to benefit to a similar degree as the mainstream population, as has been its goal under § 20.19.

51. Networks Using Open Platforms for Devices and Applications.

52. The Commission required that licensees of the Upper 700 MHz Band C Block of spectrum provide “open platforms” for devices and applications to allow customers, device manufacturers, third-party application developers, and others to use the devices and applications of their choosing in C Block networks, subject to certain reasonable network management conditions that allow the licensee to protect the network from harm. An open platform network mandate, such as that for the Upper 700 MHz Band C Block of spectrum, may fundamentally alter the paradigm within which the hearing aid compatibility rules apply. As currently constituted, § 20.19 of the Commission's rules imposes hearing aid compatibility obligations only on manufacturers and providers of services within its scope, including resellers and MVNOs. With the growth of open platform networks, however, entities other than the traditional equipment manufacturers and service providers may become increasingly significant. While the existing requirements on manufacturers, together with the open platform requirements themselves, may be adequate to ensure sufficient hearing aid-compatible handset choice for consumers, the Commission seeks comment on whether any additional hearing aid compatibility requirements should be imposed in the context of open platform networks.

53. The Commission seeks comment both on whether to impose additional hearing aid compatibility requirements on manufacturers in the context of open platform networks, and on whether to extend any requirements to entities that are not currently covered. In addition, the Commission seeks comment on whether and how to extend its hearing aid compatibility requirements to the responsible manufacturing party in joint venture situations.

54. The Commission also seeks comment on whether and how to extend its hearing aid compatibility rules, including handset deployment, information, and outreach requirements, from service providers to other entities offering handsets to consumers within an open platform environment. Considering the development of open platform networks, there may be a greater need for in-store testing by independent retailers or other third parties. The Commission therefore seeks comment on whether to extend in-store testing rules to independent retailers or other third parties in the context of open platform networks. The Commission seeks comment on the regulatory status under its current hearing aid compatibility rules of application developers and other potential new participants using open platform networks, and on whether any new hearing aid compatibility requirements should appropriately be imposed on such entities.

55. As required by the Regulatory Flexibility Act (RFA), 5 U.S.C. 603, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules addressed in this NPRM . The IRFA is set forth in an Appendix to the NPRM . Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines as comments filed in response to the NPRM , and must have a separate and distinct heading designating them as responses to the IRFA.

56. This NPRM contains proposed information collection requirements. 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 NPRM , as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13. Public and agency comments are due on or before January 22, 2008. 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, Pub. L. 107-198 (see 44 U.S.C. 3506(c)(4)), the Commission seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” The Commission notes, however, that § 213 of the Consolidated Appropriations Act of 2000 provides that rules governing frequencies in the 746-806 MHz Band become effective immediately upon publication in the Federal Register without regard to certain sections of the Paperwork Reduction Act. Consolidated Appropriations Act of 2000, Pub. L. 106-113, 113 Stat. 2502, Appendix E, Sec. 213(a)(4)(A) through (B); see 145 Cong. Rec. H12493-94 (Nov. 17, 1999); 47 U.S.C.A. 337 note at Sec. 213(a)(4)(A) through (B). The Commission is therefore not inviting comment on any information collections that concern frequencies in the 746-806 MHz Band.

57. The rulemaking this NPRM initiates 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 generally is required. Other requirements pertaining to oral and written presentations are set forth in 47 CFR 1.1206(b) of the Commission's rules.

58. Pursuant to 47 CFR 1.415 and 1.419 of the Commission's rules, interested parties may file comments on or before December 21, 2007 and reply comments on or before January 7, 2008. All filings related to this NPRM should refer to WT Docket No. 07-250. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies.

59. Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov . Filers should follow the instructions provided on the Web site for submitting comments. ECFS filers must transmit one electronic copy of the comments for WT Docket No. 07-250. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and WT Docket No. 07-250. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to ecfs@fcc.gov and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response.

60. Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. 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 the Commission continues to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission. The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, N.E., 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, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington, DC 20554.

61. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to FCC504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

62. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules considered in this NPRM . Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM . The Commission will send a copy of this NPRM , including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, this NPRM and IRFA (or summaries thereof) will be published in the Federal Register .

63. Section 213 of the Consolidated Appropriations Act of 2000 provides that the RFA shall not apply to the rules and competitive bidding procedures for frequencies in the 746-806 MHz Band. In particular, this exemption extends to the requirements imposed by Chapter 6 of Title 5, United States Code, § 3 of the Small Business Act (15 U.S.C. 632) and §§ 3507 and 3512 of Title 44, United States Code. Consolidated Appropriations Act of 2000, Pub. L. 106-113, 113 Stat. 2502, Appendix E, Sec. 213(a)(4)(A) through (B); see 145 Cong. Rec. H12493-94 (Nov. 17, 1999); 47 U.S.C.A. 337 note at Sec. 213(a)(4)(A) through (B). The Commission nevertheless believes that it would serve the public interest to analyze the possible significant economic impact of the proposed policy and rule changes in this band on small entities. Accordingly, this IRFA contains an analysis of this impact in connection with all spectrum that falls within the scope of this NPRM , including spectrum in the 746-806 MHz Band.

64. In the NPRM , the Commission reexamines existing hearing aid compatibility requirements to ensure that they will continue to be effective in an evolving marketplace of new technologies and services. Although the NPRM tentatively concludes substantially to adopt new M3- and T3-rated handset deployment benchmarks through 2011, and a related requirement to offer handsets with different levels of functionality, for Tier I carriers only, it also seeks comment on the appropriate regime for smaller service providers. In addition, the NPRM tentatively concludes to adopt new deployment benchmarks for all manufacturers, subject to a de minimis exception for certain manufacturers with small product lines. Moreover, the Commission also tentatively concludes that the following steps that might affect small businesses are needed to meet its objectives: (1) Implement a “product refresh” rule for manufacturers; (2) adopt, after a suitable phase-in period, the use of a single version of the ANSI C63.19 standard, ANSI C63.19-2007; and (3) adopt new content and timelines for hearing aid compatibility reporting requirements. In the context of several of these tentative conclusions, the Commission requests comment on possible compliance requirements not included within the Joint Consensus Plan's framework. For example, the Commission seeks comment on the possibility of staggered handset deployment deadlines for different classes of service providers and manufacturers, additional reporting/outreach obligations, and other measures that may impact small entities. In addition, following upon the recommendations in the Staff Report, the NPRM invites comments on new hearing aid compatibility issues implicated by recent developments relating to provision of Voice over Internet Protocol (VoIP) over wireless platforms, as well as “open platform” networks. The Commission is open to comment on what, if any, requirements it should, or should not, impose for small entities if it adopts new rules based on the proposals in the NPRM .

65. To promote compatibility between digital wireless telephones and hearing aids, this NPRM could result in rule changes that, if adopted, would create new opportunities and obligations for several categories of wireless service providers, as well as manufacturers of wireless handsets. The rule changes in the NPRM may affect service providers and equipment manufacturers in services for which technical standards both have and have not been established. In addition, the NPRM requests comment on potential rule changes that may affect providers of VoIP applications over wireless technologies, as well as independent retailers and other third parties in the context of “open platform” networks.

66. The Commission states that ensuring the availability of hearing aid-compatible handsets to hard of hearing consumers, as well as information about such handsets, remains a high priority. To the extent people who use hearing aids have difficulty finding a wireless mobile telephone that functions effectively with those devices because of interference or compatibility problems, the Commission states that a continued expansion in the number and availability of hearing aid-compatible wireless telephones is warranted. It explains that its objective is to take account of changing market and technological conditions with appropriate new steps to ensure that hearing aid users will continue to benefit from the convenience and features offered by the newest wireless communications systems being provided to American consumers.

67. The potential actions about which comment is sought in this NPRM would be authorized pursuant to the authority contained in Sections 4(i), 303(r), and 710 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), and 610.

68. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 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). To assist the Commission in analyzing the total number of potentially affected small entities, the Commission requests commenters to estimate the number of small entities that may be affected by any rule changes that might result from this NPRM .

69. Wireless Communications Services . This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses in the 2305-2320 MHz and 2345-2360 MHz bands. The Commission defined “small business” for the wireless communications services (WCS) auction as an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” as an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these definitions. The Commission auctioned geographic area licenses in the WCS service. In the auction, which commenced on April 15, 1997 and closed on April 25, 1997, there were seven bidders that won 31 licenses that qualified as very small business entities, and one bidder that won one license that qualified as a small business entity.

70. 700 MHz Guard Bands Licenses . The Commission adopted size standards for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A small business in this service is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years. Additionally, a “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. SBA approval of these definitions is not required. An auction of 52 Major Economic Area (MEA) licenses for each of two spectrum blocks commenced on September 6, 2000, and closed on September 21, 2000. Of the 104 licenses auctioned, 96 licenses were sold to nine bidders. Five of these bidders were small businesses that won a total of 26 licenses. A second auction of remaining 700 MHz Guard Bands licenses commenced on February 13, 2001, and closed on February 21, 2001. All eight of the licenses auctioned were sold to three bidders. One of these bidders was a small business that won a total of two licenses. Subsequently, the Commission reorganized the licenses pursuant to an agreement among most of the licensees, resulting in a spectral relocation of the first set of paired spectrum block licenses, and an elimination of the second set of paired spectrum block licenses (many of which were already vacant, reclaimed by the Commission from Nextel). A single licensee that did not participate in the agreement was grandfathered in the initial spectral location for its two licenses in the second set of paired spectrum blocks. Accordingly, at this time there are 54 licenses in the 700 MHz Guard Bands.

71. 700 MHz Band Commercial Licenses . There is 80 megahertz of non-Guard Band spectrum in the 700 MHz Band that is designated for commercial use: 698-757, 758-763, 776-787, and 788-793 MHz Bands. With one exception, the Commission adopted criteria for defining two groups of small businesses for purposes of determining their eligibility for bidding credits at auction. These two categories are: (1) “Small business,” which is defined as an entity that has attributed average annual gross revenues that do not exceed $15 million during the preceding three years; and (2) “very small business,” which is defined as an entity with attributed average annual gross revenues that do not exceed $40 million for the preceding three years. In Block C of the Lower 700 MHz Band (710-716 MHz and 740-746 MHz), which was licensed on the basis of 734 Cellular Market Areas, the Commission adopted a third criterion for determining eligibility for bidding credits: An “entrepreneur,” which is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. The SBA has approved these small size standards.

72. An auction of 740 licenses for Blocks C (710-716 MHz and 740-746 MHz) and D (716-722 MHz) of the Lower 700 MHz Band commenced on August 27, 2002, and closed on September 18, 2002. Of the 740 licenses available for auction, 484 licenses were sold to 102 winning bidders. Seventy-two of the winning bidders claimed small business, very small business, or entrepreneur status and won a total of 329 licenses. A second auction commenced on May 28, 2003, and closed on June 13, 2003, and included 256 licenses: five EAG licenses and 251 CMA licenses. Seventeen winning bidders claimed small or very small business status and won 60 licenses, and nine winning bidders claimed entrepreneur status and won 154 licenses.

73. The remaining 62 megahertz of commercial spectrum is currently scheduled for auction on January 24, 2008. Bidding credits for all of these licenses will be available to “small businesses” and “very small businesses.”

74. Government Transfer Bands. The Commission adopted small business size standards for the unpaired 1390-1392 MHz, 1670-1675 MHz, and the paired 1392-1395 MHz and 1432-1435 MHz bands. Specifically, with respect to these bands, the Commission defined an entity with average annual gross revenues for the three preceding years not exceeding $40 million as a “small business,” and an entity with average annual gross revenues for the three preceding years not exceeding $15 million as a “very small business.” SBA has approved these small business size standards for the aforementioned bands. Correspondingly, the Commission adopted a bidding credit of 15 percent for “small businesses” and a bidding credit of 25 percent for “very small businesses.” This bidding credit structure was found to have been consistent with the Commission's schedule of bidding credits, which may be found at § 1.2110(f)(2) of the Commission's rules. The Commission found that these two definitions will provide a variety of businesses seeking to provide a variety of services with opportunities to participate in the auction of licenses for this spectrum and will afford such licensees, who may have varying capital costs, substantial flexibility for the provision of services. The Commission noted that it had long recognized that bidding preferences for qualifying bidders provide such bidders with an opportunity to compete successfully against large, well-financed entities. The Commission also noted that it had found that the use of tiered or graduated small business definitions is useful in furthering its mandate under § 309(j) to promote opportunities for and disseminate licenses to a wide variety of applicants. An auction for one license in the 1670-1674 MHz band commenced on April 30, 2003 and closed the same day. One license was awarded. The winning bidder was not a small entity.

75. Advanced Wireless Services. The Commission adopted rules that affect applicants who wish to provide service in the 1710-1755 MHz and 2110-2155 MHz bands. The Commission did not know precisely the type of service that a licensee in these bands might seek to provide. Nonetheless, the Commission anticipated that the services that will be deployed in these bands may have capital requirements comparable to those in the broadband Personal Communications Service (PCS), and that the licensees in these bands will be presented with issues and costs similar to those presented to broadband PCS licensees. Further, at the time the broadband PCS service was established, it was similarly anticipated that it would facilitate the introduction of a new generation of service. Therefore, the Commission adopts the same small business size definition that it adopted for the broadband PCS service and that the SBA approved. In particular, it defines a “small business” as an entity with average annual gross revenues for the preceding three years not exceeding $40 million, and a “very small business” as an entity with average annual gross revenues for the preceding three years not exceeding $15 million. It also provides small businesses with a bidding credit of 15 percent and very small businesses with a bidding credit of 25 percent.

76. Broadband Radio Service and Educational Broadband Service. Broadband Radio Service (“BRS”), formerly known as Multipoint Distribution Service (“MDS”), and Educational Broadband Service (“EBS”), formerly known as Instructional Television Fixed Service (“ITFS”), use frequencies at 2150-2162 and 2500-2690 MHz to transmit video programming and provide broadband services to residential subscribers. These services, collectively referred to as “wireless cable,” were originally designed for the delivery of multichannel video programming, similar to that of traditional cable systems, but over the past several years licensees have focused their operations instead on providing two-way high-speed Internet access services. The Commission estimates that the number of wireless cable subscribers is approximately 100,000, as of March 2005. The SBA small business size standard for the broad census category of Cable and Other Program Distribution, which consists of such entities generating $13.5 million or less in annual receipts, appears applicable to MDS and ITFS. Other standards also apply, as described.

77. The Commission has defined small MDS (now BRS) entities in the context of Commission license auctions. In the 1996 MDS auction, the Commission defined a small business as an entity that had annual average gross revenues of less than $40 million in the previous three calendar years. This definition of a small entity in the context of MDS auctions has been approved by the SBA. In the MDS auction, 67 bidders won 493 licenses. Of the 67 auction winners, 61 claimed status as a small business. At this time, the Commission estimates that of the 61 small business MDS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent MDS licensees that have gross revenues that are not more than $40 million and are thus considered small entities. MDS licensees and wireless cable operators that did not receive their licenses as a result of the MDS auction fall under the SBA small business size standard for Cable and Other Program Distribution. Information available to us indicates that there are approximately 850 of these licensees and operators that do not generate revenue in excess of $13.5 million annually. Therefore, the Commission estimates that there are approximately 850 small entity MDS (or BRS) providers, as defined by the SBA and the Commission's auction rules.

78. Educational institutions are included in this analysis as small entities; however, the Commission has not created a specific small business size standard for ITFS (now EBS). The Commission estimates that there are currently 2,032 EBS licensees, and all but 100 of the licenses are held by educational institutions. Thus, it estimates that at least 1,932 EBS licensees are small entities.

79. Cellular Licensees. The SBA has developed a small business size standard for small businesses in the category “Wireless Telecommunications Carriers (except satellite).” Under that SBA category, a business is small if it has 1,500 or fewer employees. For the census category of “Cellular and Other Wireless Telecommunications,” Census Bureau data for 2002 show that there were 1,397 firms in this category 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.

80. Broadband Personal Communications Service. The broadband Personal Communications Service (PCS) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission has created a small business size standard for Blocks C and F as an entity that has average gross revenues of less than $40 million in the three previous calendar years. For Block F, an additional small business size standard for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. These small business size standards, in the context of broadband PCS auctions, have been approved by the SBA. No small businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 “small” and “very small” business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. On March 23, 1999, the Commission reauctioned 155 C, D, E, and F Block licenses; there were 113 small business winning bidders. On January 26, 2001, the Commission completed the auction of 422 C and F PCS licenses in Auction 35. Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses. Subsequent events concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant.

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

82. The auction of the 1,050 800 MHz SMR geographic area licenses for the General Category channels began on August 16, 2000, and was completed on September 1, 2000. Eleven bidders won 108 geographic area licenses for the General Category channels in the 800 MHz SMR band qualified as small businesses under the $15 million size standard. In an auction completed on December 5, 2000, a total of 2,800 Economic Area licenses in the lower 80 channels of the 800 MHz SMR service were sold. Of the 22 winning bidders, 19 claimed “small business” status and won 129 licenses. Thus, combining all three auctions, 40 winning bidders for geographic licenses in the 800 MHz SMR band claimed status as small business.

83. In addition, there are numerous incumbent site-by-site SMR licensees and licensees with extended implementation authorizations in the 800 and 900 MHz bands. The Commission does not know how many firms provide 800 MHz or 900 MHz geographic area SMR pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million, or have no more than 1,500 employees. One firm has over $15 million in revenues. The Commission assumes, for purposes of this analysis, that all of the remaining existing extended implementation authorizations are held by small entities, as that small business size standard is established by the SBA.

84. Rural Radiotelephone Service. The Commission uses the SBA definition applicable to Wireless Telecommunications Carriers (except satellite), i.e., an entity employing no more than 1,500 persons. There are approximately 1,000 licensees in the Rural Radiotelephone Service, and the Commission estimates that there are 1,000 or fewer small entity licensees in the Rural Radiotelephone Service that may be affected by the rules and policies adopted herein.

85. Air-Ground Radiotelephone Service. The Commission uses the SBA definition applicable to Wireless Telecommunications Carriers (except satellite), i.e. , an entity employing no more than 1,500 persons. There are approximately 100 licensees in the Air-Ground Radiotelephone Service, and the Commission estimates that almost all of them qualify as small entities under the SBA definition.

86. Offshore Radiotelephone Service. This service operates on several ultra high frequency (UHF) TV broadcast channels that are not used for TV broadcasting in the coastal area of the states bordering the Gulf of Mexico. At present, there are approximately 55 licensees in this service. The Commission uses the SBA definition applicable to Wireless Telecommunications Carriers (except satellite), i.e., an entity employing no more than 1,500 persons. The Commission is unable at this time to estimate the number of licensees that would qualify as small entities under the SBA definition. The Commission assumes, for purposes of this analysis, that all of the 55 licensees are small entities, as that term is defined by the SBA.

87. Mobile Satellite Service Carriers. Neither the Commission nor the U.S. Small Business Administration has developed a small business size standard specifically for mobile satellite service licensees. The appropriate size standard is therefore the SBA standard for Satellite Telecommunications, which provides that such entities are small if they have $13.5 million or less in annual revenues. Currently, the Commission's records show that there are 31 entities authorized to provide voice and data MSS in the United States. The Commission does not have sufficient information to determine which, if any, of these parties are small entities. The Commission notes that small businesses are not likely to have the financial ability to become MSS system operators because of high implementation costs, including construction of satellite space stations and rocket launch, associated with satellite systems and services. Still, the Commission requests comment on the number and identity of small entities that would be significantly impacted by the proposed rule changes.

88. Wireless Communications Equipment Manufacturers. The SBA has established a small business size standard for wireless communications equipment manufacturers. Under the standard, firms are considered small if they have 750 or fewer employees. Census Bureau data for 1997 indicates that, for that year, there were a total of 1,215 establishments in this category. Of those, there were 1,150 that had employment under 500, and an additional 37 that had employment of 500 to 999. The Commission estimates that the majority of wireless communications equipment manufacturers are small businesses.

89. Radio, Television, and Other Electronics Stores . This U.S. industry comprises: (1) establishments known as consumer electronics stores primarily engaged in retailing a general line of new consumer-type electronic products; (2) establishments specializing in retailing a single line of consumer-type electronic products (except computers); or (3) establishments primarily engaged in retailing these new electronic products in combination with repair services. The SBA has developed a small business size standard for this category of retail store; that size standard is $7.5 million or less in annual revenues. According to Census Bureau data for 1997, there were 8,328 firms in this category that operated for the entire year. Of these, 8,088 firms had annual sales of under $5 million, and an additional 132 had annual sales of $5 million to $9,999,999. Therefore, the majority of these businesses may be considered to be small.

90. Internet Service Providers . In the NPRM , the Commission seeks comment on whether to extend hearing aid compatibility requirements to entities offering access to VoIP applications over WiFi and other wireless technologies that may fall outside the definition of CMRS and/or the criteria in § 20.19(a), such as those operating on networks that do not employ “an in-network switching facility that enables the provider to reuse frequencies and accomplish seamless hand-offs.” Such applications may be provided, for example, by Internet Service Providers (ISPs). ISPs are Internet Publishing and Broadcasting and Web Search Portals that provide clients access to the Internet and generally provide related services such as web hosting, web page designing, and hardware or software consulting related to Internet connectivity. To gauge small business prevalence for these Internet Publishing and Broadcasting and Web Search Portals, the Commission must, however, use current census data that are based on the previous category of Internet Service Providers and its associated size standard. That standard was: all such firms having $23.5 million or less in annual receipts. Accordingly, to use data available to it under the old standard and Census Bureau data for 2002, there were 2,529 firms in this category that operated for the entire year. Of these, 2,437 firms had annual receipts of under $10 million, and an additional 47 firms had receipts of between $10 million and $24,999,999. Consequently, the Commission estimates that the majority of these firms are small entities that may be affected by this action.

91. All Other Information Services . This industry comprises establishments primarily engaged in providing other information services (except new syndicates and libraries and archives). VoIP services over wireless technologies could be provided by entities that provide other services such as email, online gaming, web browsing, video conferencing, instant messaging, and other, similar IP-enabled services. The SBA has developed a small business size standard for this category; that size standard is $6.5 million or less in average annual receipts. According to Census Bureau data for 1997, there were 195 firms in this category that operated for the entire year. Of these, 172 had annual receipts of under $5 million, and an additional nine firms had receipts of between $5 million and $9,999,999. Consequently, the Commission estimates that the majority of these firms are small entities that may be affected by this action.

92. Part 15 Device Manufacturers . Manufacturers of unlicensed wireless devices may also become subject to requirements in this proceeding for their devices used to provide VoIP applications. The Commission has not developed a definition of small entities applicable to unlicensed communications devices manufacturers. Therefore, the Commission will utilize the SBA definition applicable to Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. The Census Bureau defines this category as follows: This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment. The SBA has developed a small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing, which is: all such firms having 750 or fewer employees. According to Census Bureau data for 2002, there were a total of 1,041 establishments in this category that operated for the entire year. Of this total, 1,010 had employment of under 500, and an additional 13 had employment of 500 to 999. 1 Thus, under this size standard, the majority of firms can be considered small.

93. The Commission tentatively concludes that it will adopt several reporting, recordkeeping, and other compliance requirements which could affect small entities. For example, manufacturers and service providers have filed regular reports with the Commission since 2003 detailing their hearing aid compatibility efforts. In order to address shortcomings that have been observed in the existing reports and to render future reports as transparent and useful as possible for consumers, industry, and Commission staff responsible for helping to ensure that the Commission's hearing aid compatibility requirements are fully implemented, the Commission tentatively concludes to adopt new content requirements, as recommended in the Staff Report and proposed in the Joint Consensus Plan.

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

95. The Commission seeks comment generally on the effect the rule changes considered in this NPRM would have on small entities, on whether alternative rules should be adopted for small entities in particular, and on what effect such alternative rules would have on those entities. The Commission invites comment on ways in which it can achieve its goals while minimizing the burden on small wireless service providers, equipment manufacturers, and other entities.

96. For example, the Commission specifically considers handset deployment benchmark alternatives for small businesses. In this regard, the Commission requests comment regarding the appropriate benchmarks and deadlines for Tier II and Tier III carriers, resellers, mobile virtual network operators (MVNOs), and other categories of smaller service providers. The Commission notes that in the past numerous Tier II and Tier III carriers have requested, and many have been granted, extension of compatible handset deployment deadlines because they were unable timely to obtain compliant handsets in sufficient quantities from manufacturers. The Commission states that Tier II and Tier III carriers may have more difficulty than Tier I carriers in obtaining handsets due to market realities. Accordingly, the Commission seeks comment on the alternative of whether the handset deployment benchmarks proposed for Tier I carriers are appropriate for smaller carriers, and on whether the deadlines for those entities in particular should be later than those applicable to manufacturers. To consider the economic impact on small entities, the Commission asks commenters to address whether there is anything inherent in the characteristics of smaller service providers that would prevent them from meeting either the RF interference or inductive coupling-capable handset numbers and percentages set out for Tier I carriers. The Commission asks commenters to discuss with specificity any alternative requirements or schedules that they propose for these types of service providers, and the reasons for those alternatives.

97. The NPRM also considers the alternative of delayed reporting obligations for non-Tier I carriers, which includes small entities. The NPRM seeks comment on the appropriate reporting timelines for Tier II and III carriers, including the alternative of delaying their next reports for a period of 18 months to two years from their reports that will be submitted in November 2007, versus the alternative of whether they should instead be held to the same schedule as Tier I carriers in order to provide a steady source of information to consumers and to the Commission. In this context, the Commission considers the extent of the burdens to Tier II and III carriers that would be avoided by postponing their first reports as proposed under the Joint Consensus Plan. For example, given that Tier II and III carriers have already been filing reports regularly, the Commission seeks comment on the extent of any inconvenience or costs that would be avoided by postponing their first reports as proposed under the Joint Consensus Plan, balanced against the extent of information that would be lost by introducing a gap of 18 months or more in their reporting. Finally, the NPRM asks commenters to address whether the delayed reporting deadline alternative for Tier II and III carriers should depend on what deployment deadlines are adopted.

98. None.

99. It is ordered that, pursuant to the authority of sections 4(i), 303(r), and 710 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), and 610, this NPRM is hereby adopted .

100. It is further ordered that pursuant to applicable procedures set forth in §§ 1.415 and 1.419 of the Commission's Rules, 47 CFR 1.415, 1.419, interested parties may file comments on the NPRM on or before December 21, 2007 and reply comments on or before January 7, 2008.

101. It is further ordered that the petition of American National Standards Institute Accredited Standards Committee C63 (EMC) ANSI ASC C63 TM is granted to the extent set forth herein.

102. It is further ordered that the Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of the NPRM , including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

This document proposes to upgrade the school bus occupant protection requirements of the Federal motor vehicle safety standards, primarily by amendments to Federal Motor Vehicle Safety Standard No. (FMVSS) No. 222, “School bus passenger seating and crash protection” (49 CFR 571.222), and by amendments to FMVSS Nos. 207, 208, and 210. It also provides guidance to state and local jurisdictions on the subject of installing seat belts on large school buses (school buses with a GVWR greater than 4,536 kilograms (kg) (10,000 pounds (lb)) and asks for comments on the agency's consideration of “best practices” concerning the belts on the large buses. 1

This NPRM's most significant proposed changes to FMVSS No. 222 involve:

• Increasing the minimum seat back height requirement from 20 inches from the seat's seating reference point (SgRP) to 24 inches for all school buses;

• Requiring small school buses to have a lap/shoulder belt at each passenger seating position (the buses are currently required to have lap belts);

• Incorporating test procedures into the standard to test lap/shoulder belts in small school buses and voluntarily-installed lap/shoulder belts in large school buses to ensure both the strength of the anchorages and the compatibility of the seat with compartmentalization; and,

• Requiring all school buses with seat bottom cushions that are designed to flip-up, typically for easy cleaning, to have a self-latching mechanism.

The proposed guidance to state and local jurisdictions on best practices of installing seat belts on large school buses acknowledges that, in terms of the optimum passenger crash protection that can be afforded an individual passenger on a large school bus, a lap/shoulder belt system, together with compartmentalization, would afford that optimum protection. Thus, we encourage providers to consider lap/shoulder belts on large school buses. However, installing current lap/shoulder belts on large school buses would reduce the passenger carrying capacity of large buses. If children were diverted to other means of transport to school, such as transport by smaller, private vehicles, walking, or biking, the belts on the buses could result in an overall disbenefit to pupil transportation safety due to the children displaced from the large school buses having to find less safe modes of transportation to get to or from school or related events. Thus, we are not proposing to require lap/shoulder belts on large school buses, and we recommend providers to ascertain whether installing lap/shoulder belts would reduce the number of children that are transported to school on large school buses.

The Motor Vehicle and Schoolbus Safety Amendments of 1974 directed NHTSA to issue motor vehicle safety standards applicable to school buses and school bus equipment. In response to this legislation, NHTSA revised several of its safety standards to improve existing requirements for school buses, extended ones for other vehicle classes to those buses, and issued new safety standards exclusively for school buses. FMVSS No. 222, one of a set of new standards for school buses, improves protection to school bus passengers during crashes and sudden driving maneuvers.

Effective since 1977, FMVSS No. 222 contains occupant protection requirements for school bus seating positions and restraining barriers. Its requirements for school buses with GVWR's of 4,536 kg (10,000 lb) or less differ from those set for school buses with GVWR's greater than 4,536 kg (10,000 lb), because the “crash pulse” or deceleration experienced by the small school buses is more severe than that of the large buses in similar collisions. For the small school buses, the standard includes requirements that all seating positions must be equipped with properly installed lap or lap/shoulder seat belt assemblies and anchorages for passengers. 2 NHTSA decided that seat belts were necessary on small school buses to provide adequate crash protection for the occupants. For the large school buses, FMVSS No. 222 relies on requirements for “compartmentalization” to provide passenger crash protection. Investigations of school bus crashes prior to issuance of FMVSS No. 222 found the school bus seat was a significant factor in causing injury. NHTSA found that the seat failed the passengers in three principal respects: by being too weak, too low, and too hostile (39 FR 27584; July 30, 1974). In response to this finding, NHTSA developed a set of requirements which comprise the “compartmentalization” approach.

Compartmentalization ensures that passengers are cushioned and contained by the seats in the event of a school bus crash by requiring school bus seats to be positioned in a manner that provides a compact, protected area surrounding each seat. If a seat is not compartmentalized by a seat back in front of it, compartmentalization must be provided by a padded and protective restraining barrier. The seats and restraining barriers must be strong enough to maintain their integrity in a crash yet flexible enough to be capable of deflecting in a manner which absorbs the energy of the occupant. They must meet specified height requirements and be constructed, by use of substantial padding or other means, so that they provide protection when they are impacted by the head and legs of a passenger. Compartmentalization minimizes the hostility of the crash environment and limits the range of movement of an occupant. The compartmentalization approach ensures that high levels of crash protection are provided to each passenger independent of any action on the part of the occupant.

NHTSA has considered the question of whether seat belts should be required on large school buses from the inception of compartmentalization and the school bus safety standards. NHTSA has been repeatedly asked to require belts on buses, and has repeatedly concluded that compartmentalization provides a high level of safety protection that obviates the safety need for a Federal requirement necessitating the installation of seat belts. Further, the agency has been acutely aware that a decision on requiring seat belts in large school buses cannot ignore the implications of such a requirement on pupil transportation costs. The agency has been attentive to the fact that, as a result of requiring belts on large school buses, school bus purchasers would have to buy belt-equipped vehicles regardless of whether seat belts would be appropriate for their needs. NHTSA has concluded that those costs should not be imposed on all purchasers of school buses when large school buses are currently very safe. In the area of school transportation especially, where a number of needs are competing for limited funds, persons responsible for school transportation might want to consider other alternative investments to improve their pupil transportation programs which can be more effective at reducing fatalities and injuries than seat belts on large school buses, such as by acquiring additional new school buses to add to their fleet, or implementing improved pupil pedestrian and driver education programs. Since each of these efforts competes for limited funds, the agency has maintained that those administrators should decide how their funds should be allocated.

Nonetheless, throughout the past 30 years that compartmentalization and the school bus safety standards have been in effect, the agency has openly and continuously considered the merits of a seat belt requirement for large school buses. 3 The issue has been closely analyzed by other parties as well, such as the National Transportation Safety Board, and the National Academy of Sciences. Various reports have been issued, the most significant of which are described below.

Subject to certain exceptions, 49 U.S.C. 30112(a) prohibits any person from importing into the United States a motor vehicle manufactured on or after the date that an applicable Federal motor vehicle safety standard (FMVSS) takes effect unless the vehicle complies with the standard and is so certified by its manufacturer. One of the exceptions to this prohibition is found in 49 U.S.C. 30141. That section permits an importer that is registered with NHTSA (a “registered importer”) to import a motor vehicle that was not originally manufactured to conform to all applicable FMVSS, provided NHTSA has decided that the vehicle is eligible for importation. Under the criteria that are specified in Section 30141 for these decisions, a motor vehicle is not eligible for importation unless, among other things, it is capable of being altered to comply with all applicable FMVSS. See 49 U.S.C. 30141(a)(1)(A)(iv) and (B).

Once a motor vehicle has been declared eligible for importation, it can be imported by a registered importer (RI) or by an individual who has executed a contract or other agreement with an RI to bring the vehicle into compliance with applicable FMVSS. For vehicles that are imported in this fashion, a DOT conformance bond (Form HS-474), in an amount equivalent to 150 percent of the declared value of the vehicle, must be furnished to CBP at the time of importation to ensure that the necessary modifications are completed within 120 days of entry or, if conformance is not achieved, for the vehicle to be delivered to the Secretary of Homeland Security for export at no cost to the United States, or for the vehicle to be abandoned to the United States. See 49 CFR 591.6(c). The DOT conformance bond must be underwritten by a surety that possesses a certificate of authority to underwrite Federal bonds. See 49 CFR 591.8(c), referencing a list of certificated sureties at 54 FR 27800, June 30, 1989.

In lieu of sureties on a DOT conformance bond, an importer may offer United States money, United States bonds (except for savings bonds), United States certificates of indebtedness, Treasury notes, or Treasury bills (hereinafter referred to as “cash deposits”) in an amount equal to the amount of the bond. See 49 CFR 591.10(a).

In recent years, a number of RIs have encountered difficulty in obtaining DOT conformance bonds underwritten by certificated sureties. To achieve the entry of the nonconforming vehicles they have sought to import, these RIs have had to resort to furnishing NHTSA with cash deposits in lieu of sureties on a DOT conformance bond. The receipt, processing, handling, and disbursement of these cash deposits has caused the agency to consume a considerable amount of staff time and material resources.

NHTSA is authorized under 49 U.S.C. 30141(a)(3) to establish an annual fee requiring RIs to pay for the costs of carrying out the RI program. The agency is also authorized under this section to establish fees to pay for the costs of processing the conformance bonds that RIs provide, and fees to pay for the costs of making agency decisions relating to the importation of noncomplying motor vehicles and equipment.

The agency has, to date, established five separate fees under the authority of 49 U.S.C. 30141. These are set forth in 49 CFR part 594. The first is the annual fee that is collected from RIs to cover the agency's costs for administering the RI program. This fee, which is covered by section 594.6, is currently set at $677 for persons applying for RI status and at $570 for those seeking the renewal of that status. As described in section 594.6, the fee is based on the direct and indirect costs incurred by the agency in processing and acting upon initial applications for RI status and annual statements seeking the renewal of that status, as well as other actions performed by the agency in administering the RI program.

The second fee is collected from each motor vehicle manufacturer or RI who petitions NHTSA to decide that a nonconforming vehicle is eligible for importation. This fee, which is covered by 49 CFR 594.7, is currently set at $175 for a petition seeking an eligibility decision on the basis that a nonconforming vehicle is substantially similar to a U.S. certified counterpart, and at $800 for a petition seeking such a decision on the basis that a nonconforming vehicle is capable of being altered to conform to all applicable standards. As detailed in section 594.7, this fee is based on the direct and indirect costs incurred by NHTSA in processing and acting upon import eligibility petitions. In the event that a petitioner requests an inspection of a vehicle, the sum of $827 is added to the fee for vehicles that are the subject of either type of petition.

The third fee is for importing a vehicle under an eligibility decision made by the Administrator. This fee, which is covered by 49 CFR 594.8, is currently set at $208 per vehicle. As described in section 594.8, this fee is calculated to cover NHTSA's direct and indirect costs in making import eligibility decisions.

The fourth fee covers the agency's costs for reviewing a certificate of conformity that an RI submits for each vehicle that it imports under conformance bond. This fee, which is covered by 49 CFR 594.10, encompasses review of the RI's certificate of conformity, which establishes that a nonconforming vehicle has been brought into conformity with all applicable standards and permits the agency to release the conformance bond that was furnished for the vehicle at the time of entry. This fee is currently $18 per vehicle if the vehicle is entered using paper documents. If the vehicle has been electronically entered through the Automated Broker Interface (ABI) system and the RI has an e-mail address, the fee for reviewing the certificate of conformity is $6, provided the fee is paid by credit card. If however, there are errors made in the ABI entry information or omissions in the certificate of conformity, $48 is charged to correct or complete the information.

The fifth fee has been established pursuant to 49 U.S.C. 30141(a)(3)(A) to pay for the costs of processing bonds provided to the Secretary of the Treasury. RIs furnish these bonds for each vehicle covered by a certificate of conformity that is submitted to NHTSA. This fee, which is covered by 49 CFR 594.9, is currently set at $9.77 and only reimburses CBP for services that agency performs at the time of entry. The fee is based on direct and indirect cost information provided to NHTSA by CBP.

Although the above-described fees have permitted NHTSA to recover the costs it incurs in administering certain aspects of the RI program, such as making import eligibility decisions, other services that NHTSA provides to importers of nonconforming vehicles have gone unreimbursed. One such service for which the agency believes it is entitled to reimbursement under 49 U.S.C. 30141 is the receipt, processing, handling, and disbursement of cash deposits submitted by importers and RIs in lieu of sureties on DOT conformance bonds.

When the RI program was first established following the enactment of the Imported Vehicle Safety Compliance Act of 1988, Pub. L. 100-52, bonding companies were reluctant to serve as sureties because of their unfamiliarity with DOT conformance bonds, and prospective importers found it difficult to obtain such bonds. To assist importers and to provide relief from an unintended impediment to the importation of nonconforming vehicles, the agency later proposed cash deposits as an alternate to providing a bond, and formalized the process by adding to its regulations a provision permitting such deposits, as found at 49 CFR 591.10. See 58 FR 12905 (March 8, 1993).

When other fees were established under part 594, NHTSA did not recognize a need to impose a fee to recover the costs it incurs in handling cash deposits because few cash deposits had been made and they accounted for a relatively small share of the work performed by the agency. In the ensuing years, NHTSA has devoted a substantially greater share of its staff time to those efforts. More recently, a Customs broker representing an RI who could obtain a DOT conformance bond from a surety asked the agency whether the importer could provide a cash deposit instead. The broker stated that the importer was reluctant to pay the necessary fee for obtaining a DOT conformance bond and was informed by the RI that he could avoid any fee by sending NHTSA a cash deposit. Had the importer submitted a cash deposit, the agency would have been required to expend considerable resources for his benefit, and for the sole reason that he was unwilling to pay for a DOT conformance bond. This circumstance alerted the agency to the need to charge a fee for processing cash deposits to offset the agency's costs for performing this work.

Because NHTSA's acceptance of the cash deposits is a necessary predicate to the release of the vehicle into the commerce of the United States, NHTSA has tentatively concluded that the expense incurred by the agency to receive, process, handle, and disburse cash deposits may be treated as part of the bond processing cost, for which NHTSA is authorized to set a fee under 49 U.S.C. 30141(a)(3)(A).

Even if such authority did not exist in Chapter 301 of Title 49, U.S. Code, the Independent Offices Appropriation Act of 1952, 31 U.S.C. Sec. 9701, provides ample authority for NHTSA to impose fees that are sufficient to recover the agency's full costs to receive, process, handle, and disburse cash deposits. By performing these tasks related to cash deposits, NHTSA is performing a specific service for an identifiable beneficiary that can form the basis for the imposition of a fee under 31 U.S.C. Sec. 9701. Courts have long recognized that Federal agencies may impose fees under section 9701 for providing comparable services to regulated entities. See, e.g. , Seafarers International Union of North America v. U.S. Coast Guard , 81 F.3d 179, 183 (DC Cir. 1996) (finding the Coast Guard authorized to charge reasonable fees for processing applications for merchant mariner licenses, certificates, and work documents); Engine Manufacturers Association v. E.P.A. , 20 F.3d 1177, 1180 (DC Cir. 1994) (finding the E.P.A. authorized to impose a fee to recover its costs for testing vehicles and engines for compliance with the emission standards of the Clean Air Act); and National Cable Television Association, Inc. v. F.C.C. , 554 F.2d 1094, 1101 (DC Cir. 1976) (finding the F.C.C. authorized to impose fees for issuing certificates of compliance to cable television operators).

In view of the language and judicial construction of 31 U.S.C. 9701, NHTSA is relying on this provision as an independent source of authority for the proposed fee. The agency believes that this provision and 49 U.S.C. 30141 each provide sufficient separate authority for the proposed fee and the other fees that the agency has established under 49 CFR part 594.

As previously noted, NHTSA has computed all other fees that it collects under the authority of 49 U.S.C. 30141 on the basis of all direct and indirect costs incurred by the agency in performing the function for which the fee is charged. In the Federal Register notice proposing the original schedule of fees that was adopted in part 594, the agency observed that this approach was consistent with the manner in which other agencies have computed user fees under the Independent Offices Appropriation Act, 31 U.S.C. 9701, and the Consolidated Omnibus Budget Reconciliation Act, P.L. 99-272. See 54 FR 17792, 17793 (April 25, 1989). NHTSA specified in its 1989 NPRM proposing rules for the RI program that “the fees imposed by part 594 would include the agency's best direct and indirect cost estimates of the man-hours involved in each activity, on both the staff and supervisory levels, the costs of computer and word processor usage, costs attributable to travel, salary, and benefits, and maintenance of work space,” as appropriate for each fee. See 54 FR 17795 (April 25, 1989). Subsequently, the Office of Management and Budget (OMB), in Circular A-25 that established Federal policy for the assessment of user fees under 31 U.S.C. Sec. 9701, stated that such fees must be “sufficient to recover the full cost to the Federal Government * * * of providing the service, resource, or good when the Government is acting in its capacity as a sovereign.” See 58 FR 38142, 38144 (July 15, 1993).

Applying an approach consistent with the OMB Circular and the one followed in its 1989 rulemaking, the agency has considered its direct and indirect costs in calculating the proposed fee for the review, processing, handling, and disbursement of cash deposits submitted by importers and RIs in lieu of sureties on a DOT conformance bond as follows:

The direct costs that would be used to calculate the proposed fee include the estimated cost of contractor and professional staff time for administering cash deposits submitted by importers and RIs in lieu of sureties on a DOT conformance bond. Additional direct costs include computer equipment and maintenance costs, telephone toll charges, and postage.

The indirect costs include a pro rata allocation of the average benefits of agency staff while administering cash deposits. Benefits provided by NHTSA amount to 21.5 percent of the salary earned by its professional staff. The indirect costs also include a pro rata allocation of the costs attributable to the rental and maintenance of office space and equipment, the use of office supplies, and other overhead items. For fiscal years (FY) 2007 and 2008, these costs are projected to average $17.07/hour for each employee and contract support staff member working at NHTSA headquarters.

The estimated cost of contract and professional staff time is calculated on the basis of the full cost for time spent during FY 2007 and the estimated FY 2008 rates, including benefits (for professional staff only) and overhead. This is summarized in Table 1 below:

Administering the process begins when the cash deposits are received by mail. We estimate that a contractor spends 10 minutes logging receipt of, and hand delivering the cash deposits to, a manager within NHTSA's Office of Vehicle Safety Compliance (OVSC). The OVSC manager spends an estimated 20 minutes discussing by telephone with the importer, the necessary formal agreement and its obligations, preparing the formal agreement between the agency and the importer, and faxing the agreement to the importer for signature. After the importer signs and returns the agreement, a contractor spends an estimated 5 minutes logging receipt of the agreement and returning it to the OVSC manager. We estimate that the OVSC manager spends 20 minutes to prepare a transmittal memo that describes the formal agreement and requests the approval and signature of a senior NHTSA manager, who by regulation is authorized to obligate the agency. Another 30 minutes of time is needed for agency chain-of-command review and approval of the agreement.

Once the agreement is executed, the OVSC manager expends 10 minutes preparing and faxing a letter that notifies CBP that NHTSA has approved the vehicle's formal entry into the United States. The OVSC manager prepares an additional letter notifying the importer that the agreement has been signed, that CBP has been notified, and that the vehicle can now be formally entered into the United States. We estimate that preparing and transmitting this letter takes 10 minutes. The OVSC manager also notifies a contractor to record a notation in the agency's Motor Vehicle Importation Information (MVII) database.

The OVSC manager consumes 10 minutes of work time preparing a cover memorandum and delivering the cash deposits to the agency's finance manager. The finance manager delivers the cash deposits to a Washington, DC bank for deposit in a non-interest bearing account. We estimate that it takes one hour to accomplish this task, which concludes the first stage of administering the cash deposit.

Based on the time required to accomplish these tasks, we calculate that for FY 2007, 20 minutes of contractor time costs $16.83 and two hours and 40 minutes of professional staff time costs $241.01. Therefore, the total FY 2007 cost for staff time is $260.84. Using projected hourly rate increases of 3.79% for both contract and professional staff, we estimate a staff time cost of $268.80 for FY 2008.

The second phase of the process begins when the importer notifies NHTSA that vehicle conformance obligations have been met. We estimate that this notification takes 10 minutes of professional staff time. The OVSC manager takes 10 minutes of time preparing a cover memorandum to the finance manager that requests that a check be drawn on the agency's account in the importer's name. We estimate that it takes one hour of the finance manager's time to order and retrieve from the bank a check drawn on the agency's non-interest bearing account. The finance manager consumes 10 minutes of time delivering the check to the OVSC manager and notifying the agency's Director of Finance of the transaction. The OVSC manager then composes a letter to the importer and mails the letter with the enclosed check, consuming another 10 minutes of time. On a monthly basis, the finance manager expends 5 minutes reviewing for accuracy the agency's bank statement transactions.

This phase of the process consumes one hour and 45 minutes of professional staff time and costs the agency for FY 2007 a total of $157.30. We estimate for FY 2008 that this cost will increase to $162.13, based on a projected 3.79% hourly rate increase for both contractor and professional staff.

As previously stated, additional direct costs include computer equipment and maintenance costs, which we have calculated at $1.86/hour. We have determined that one hour and 25 minutes of computer time is needed to accomplish the tasks associated with processing each cash deposit, yielding a total of $158.10. We also estimate that the agency will spend $5.75 for the toll costs incurred for three telephone transmissions ( i.e. , faxing the formal agreement to the importer for signature; faxing a letter informing CBP that the vehicle's entry is approved; and faxing a letter notifying the importer to proceed with the vehicle's entry) and $3.00 postage for mailing the check to the importer.

Based on the above factors, NHTSA proposes to charge $598.00 as the fee to recover the costs it incurs for each vehicle imported during FY 2008, for which the importer submits a cash deposit in lieu of a DOT conformance bond. This fee would have to be tendered with each cash deposit submitted to the agency in lieu of a bond. The time expended, hourly rates, direct and indirect costs, and proposed fees to reimburse NHTSA are summarized in Appendix A of this notice.

Section 30141(e) of Title 49, U.S. Code requires the amount of fees imposed under section 30141(a) to be reviewed, and, if appropriate, adjusted by NHTSA at least every two years. It also requires that the fee for each fiscal year be established before the beginning of that year. Any final rule on this proposal must therefore be issued not later than September 30, 2008 so that the fee it establishes will be applicable in Fiscal Year 2009, which begins on October 1, 2008.

The following tables provide an itemization of the time expended, hourly rates, direct and indirect costs, and proposed fees to reimburse NHTSA for the costs of receiving, processing, handling, and disbursing cash deposits:

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

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

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

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

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

NHTSA has considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking is not significant. Accordingly, the Office of Management and Budget has not reviewed this rulemaking document under Executive Order 12886. Further, NHTSA has determined that the rulemaking is not significant under Department of Transportation's regulatory policies and procedures. Based on the level of the fees and the volume of affected vehicles, NHTSA currently anticipates that the costs of the final rule would be so minimal as not to warrant preparation of a full regulatory evaluation. The action does not involve any substantial public interest or controversy. There would be no substantial effect upon State and local governments. There would be no substantial impact upon a major transportation safety program. A regulatory evaluation analyzing the economic impact of the final rule establishing the RI program, adopted on September 29, 1989, was prepared, and is available for review in the docket.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of proposed rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration's regulations at 13 CFR part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” See 13 CFR 121.105(a). No regulatory flexibility analysis is required if the head of an agency certifies that the rule would not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities.

The agency has considered the effects of this proposed rulemaking under the Regulatory Flexibility Act, and certifies that if the proposed amendments are adopted they would not have a significant economic impact upon a substantial number of small entities.

The following is NHTSA's statement providing the factual basis for the certification (5 U.S.C. 605(b)). The proposed amendment would primarily affect entities that currently modify nonconforming vehicles and which are small businesses within the meaning of the Regulatory Flexibility Act. Of the 73 such entities that are currently licensed with NHTSA, only several have furnished the agency with cash deposits in lieu of sureties on DOT conformance bonds. Despite the fact that they qualify as small businesses, the agency has no reason to believe that these companies would be unable to pay the fee proposed by this action. Moreover, consistent with prevailing industry practices, the fee should be passed through to the ultimate purchasers of any vehicle for which a cash deposit in lieu of sureties is given to the agency. The cost to owners or purchasers of these vehicles may be expected to increase to the extent necessary to reimburse the RI for the fee payable to the agency for the cost of processing a cash deposit.

Governmental jurisdictions would not be affected at all since they are generally neither importers nor purchasers of nonconforming motor vehicles.

Executive Order 13132 on “Federalism” requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.” Executive Order 13132 defines the term “policies that have federalism implications” to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, NHTSA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or NHTSA consults with State and local officials early in the process of developing the proposed regulation.

The proposed rule would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government as specified in Executive Order 13132. Thus, the requirements of section 6 of the Executive Order do not apply to this rulemaking action.

NHTSA has analyzed this action for purposes of the National Environmental Policy Act. The action would not have a significant effect upon the environment because it is anticipated that the annual volume of motor vehicles imported through RIs would not vary significantly from that existing before promulgation of the rule.

Pursuant to Executive Order 12988 “Civil Justice Reform,” this agency has considered whether this proposed rule would have any retroactive effect. NHTSA concludes that this proposed rule would not have any retroactive effect. Judicial review of a rule based on this proposal may be obtained pursuant to 5 U.S.C. 702. That section does not require that a petition for reconsideration be filed prior to seeking judicial review.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with the base year of 1995). Before promulgating a rule for which a written assessment is needed, Section 205 of the UMRA generally requires NHTSA to identify and consider a reasonable number of regulatory alternatives and to adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of Section 205 do not apply when they are inconsistent with applicable law. Moreover, Section 205 allows NHTSA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted. Because a final rule based on this proposal would not require the expenditure of resources beyond $100 million annually, this action is not subject to the requirements of Sections 202 and 205 of the UMRA.

Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

If you have any responses to these questions, please include them in your comments on this document.

Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This proposal would require no information collections.

Executive Order 13045 applies to any rule that (1) is determined to be “economically significant” as defined under E.O. 12866, and (2) concerns an environmental, health, or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned rule is preferable to other potentially effective and reasonably feasible alternatives considered by us. This rulemaking is not economically significant.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272) directs NHTSA to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The NTTAA directs the agency to provide Congress, through the OMB, explanations when we decide not to use available and applicable voluntary consensus standards.

After conducting a search of available sources, we have concluded that there are no voluntary consensus standards applicable to this proposed rule.

Your comments must be written in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.

Your comments must not be more than 15 pages long (49 CFR 553.21). We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.

Please submit two copies of your comments, including the attachments, to Docket Management identified at the beginning of this document, under ADDRESSES .

If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.

If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given at the beginning of this document under FOR FURTHER INFORMATION CONTACT . In addition, you should submit two copies from which you have deleted the claimed confidential business information, to Docket Management at the address given at the beginning of this document under ADDRESSES . When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation, 49 CFR, part 512.

We will consider all comments that Docket Management receives before the close of business on the comment closing date identified at the beginning of this notice under DATES . To the extent possible, we will also consider comments that Docket Management receives after that date. If Docket Management receives a comment too late for us to consider in developing a final rule, we will consider that comment as an informal suggestion for future rulemaking action.

You may read the comments received by Docket Management at the address and times given at the beginning of this document under ADDRESSES .

You may also see the comments on the Internet. To read the comments on the Internet, take the following steps:

(1) Go to the Federal Docket Management System (FDMS) Web page http://www.regulations.gov.

(2) On that page, click on “search for dockets.”

(3) On the next page ( http://www.regulations.gov/fdmspublic/component/main ), select NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION from the drop-down menu in the Agency field, enter the Docket ID number and title shown at the heading of this document, and select “RULEMAKING” from the drop-down menu in the Type field.

(4) After entering that information, click on “submit.”

(5) The next page contains docket summary information for the docket you selected. Click on the comments you wish to see. You may download the comments. Although the comments are imaged documents, instead of the word processing documents, the “pdf” versions of the documents are word searchable. Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically search the Docket for new material.

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN that appears in the heading on the first page of this document to find this action in the Unified Agenda.

In consideration of the foregoing, NHTSA proposes to amend 49 CFR part 594 as follows:

In consideration of the foregoing, the agency proposes to amend part 594 in Title 49 of the Code of Federal Regulations as follows:

The groundfish, crab, scallop, and salmon fisheries in the exclusive economic zone (EEZ) off Alaska are managed under their respective fishery management plans (FMPs). The North Pacific Fishery Management Council (Council) prepared the FMPs under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations implementing the FMPs appear at 50 CFR parts 679 and 680. General regulations governing U.S. fisheries also appear at 50 CFR part 600. The groundfish fishery restrictions for the AIHCA described in the groundfish FMP are implemented by regulations at 50 CFR part 679. Revisions to the AIHCA also are described in the proposed Amendment 23 to the FMP for BSAI King and Tanner Crabs, Amendment 12 to the FMP for Scallop Fisheries off Alaska, and Amendment 9 to the FMP for Salmon Fisheries in the Exclusive Economic Zone off the Coast of Alaska. No regulatory amendments are needed for implementing these FMP amendments due to a prohibition on using nonpelagic trawl gear in the crab, scallop, and salmon fisheries.

The Council has submitted the amendments for the AIHCA revision for review by the Secretary of Commerce, and a Notice of Availability of the amendments was published in the Federal Register on November 13, 2007 (72 FR 63871), with comments on the amendments invited through January 14, 2008. Comments may address the FMP amendments, the proposed rule, or both, but must be received by January 7, 2008, to be considered in the approval/disapproval decision on the FMP amendments. All comments received by that time, whether specifically directed to the FMP amendments or to the proposed rule, will be considered in the approval/disapproval decision on the FMP amendments.

In 2006, NMFS implemented essential fish habitat (EFH) protection measures for the Aleutian Islands subarea and adjacent State of Alaska (State) waters (71 FR 36694, June 28, 2006, and corrected at 72 FR 63500, November 9, 2007). The background on the development of the EFH protection measures is available in the proposed rule for that action (71 FR 14470, March 22, 2006). The EFH protection measures prohibited nonpelagic trawling within the AIHCA. The AIHCA is the Aleutian Islands subarea and adjacent State waters except for specific sites that remain open to nonpelagic trawling. Locations open to nonpelagic trawling in the AIHCA included areas without known occurrences of coral and sponge habitat and where nonpelagic trawling previously occurred. A map of the AIHCA is available from the NMFS Alaska Region website at http://www.fakr.noaa.gov/habitat/efh/aihca.pdf .

In March 2007, the Council recommended two revisions to the boundaries of the AIHCA. These revisions were developed in response to corrections provided by the nonpelagic trawl industry regarding fishing locations and additional information on coral and sponge occurrence in the Aleutian Islands.

The two revisions would revise the AIHCA boundaries near Agattu Island and Buldir Island (see figure below). The proposed rule would prohibit nonpelagic trawling in an area west of Buldir Island and would permit nonpelagic trawling in an area north of Agattu Island.

NMFS is proposing to open the area near Agattu Island to nonpelagic trawling because no evidence of coral or sponge habitat exists in this area, and nonpelagic trawling historically has occurred in this location. NMFS is proposing to close the area near Buldir Island because NMFS surveys show corals and sponges occur in this area. Anecdotal information also indicated that nonpelagic trawlers avoid the proposed Buldir Island closure area to protect fishing gear from damage by bottom structures. Details of the fishing history and biological features of these sites are available in the EA/RIR/IRFA for this action (see ADDRESSES ).

The proposed rule would revise the coordinates for the boundaries of the AIHCA near Agattu Island and Buldir Island. Table 24 to 50 CFR part 679 contains coordinates for sites where nonpelagic trawling is permitted in the AIHCA. Table 24 would be revised to specify the coordinates near Agattu and Buldir Islands to adjust the boundaries of the AIHCA to allow for nonpelagic trawling near Agattu Island and prohibit nonpelagic trawling near Buldir Island, as shown in the figure above. The proposed rule would modify the coordinates for the Buldir and Semichi areas listed on Table 24. The Semichi area includes the waters near Agattu Island proposed to be opened to nonpelagic trawling. Because the proposed rule would divide the Buldir Island open area into two areas to allow for the closure area, the proposed rule would add the West Buldir site to Table 24. The proposed rule also would remove the site number for each site because the site number serves no additional purpose in the identification of the site beyond that provided by the site name. The proposed rule also would remove from Table 24 two redundant sets of coordinates for the Buldir site because they are not necessary to accurately describe the boundaries.

Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 88 to the FMP for Groundfish of the BSAI, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

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

NMFS prepared an initial regulatory flexibility analysis (IRFA), as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. Descriptions of the action, the reasons it is under consideration, and its objectives and legal basis, are contained earlier in the preamble and in the SUMMARY section of the preamble. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES ).

Vessels were considered small, according to the Small Business Administration (SBA) criteria, if they had estimated 2004 gross revenues less than or equal to $4 million, and were not known to be affiliated with other firms whose combined receipts exceeded $4 million.

Ten vessels that qualify as small entities under SBA criteria are directly regulated by this action. Six of these vessels are catcher vessels, and four are catcher/processors. Average gross revenues in 2005 were about $1,400,000 for the catcher vessels and about $2,200,000 for the catcher/processors.

This regulation does not impose new recordkeeping and reporting requirements on the regulated small entities.

The IRFA did not reveal any Federal rules that duplicate, overlap, or conflict with the proposed action.

The Council considered one alternative (Alternative 1, no action) to the preferred alternative for this action. The boundaries of the opened and closed areas were based on information provided by the fishing industry regarding historical fishing activity and on NMFS survey information regarding coral and sponge location. This is the method of boundary identification used in the original EFH rule for the AIHCA. Because this is a correction to that rule, the identification of boundaries for the opened and closed areas for this action is based on the same method. No other alternatives were identified because the action is an adjustment to the AIHCA boundaries based on corrected fishing information and NMFS survey information, and no additional information regarding adjustments to the AIHCA was available. No other boundaries of the opened or closed areas for the AIHCA were considered because no additional information was available to support other boundary alternatives.

The status quo condition of the fishery should be based on the 2006 fishery because of the recent implementation of the EFH protection measures (71 FR 36694, June 28, 2006), but 2006 data were not yet available for the analysis. Therefore, 2001 through 2005 data were used as a proxy for status quo. Vessel monitoring system (VMS) and NMFS inseason catch data were used to analyze the catches in the proposed Agattu and Buldir Islands opened and closed areas. These types of data allowed for determining the fine scale location of fishing activities in combination with the estimated harvest from the proposed opened and closed areas.

The no action alternative would not meet the objectives of this action. The status quo alternative would allow fishing in an area of known coral and sponge occurrence and would prohibit fishing in an area that had historical fishing activity. This would not meet the intent of the Council for the AIHCA and does not meet the objectives of the action to provide continued fishing where historical fishing activity has occurred and to prohibit fishing where coral and sponges occur. Moreover, the IRFA did not identify discernable adverse impacts to small entities from this action. In fact, as noted in the preamble, this action may have positive benefits for small entities because more historical fishing activity occurred in the area to be opened by this action, than in the area to be closed. Vessels that are not small entities will likely experience the same benefits as small entities by being allowed to fish in an area historically fished, and no adverse impacts are expected for these vessels.

For reasons set out in the preamble, NMFS proposes to amend 50 CFR part 679 as follows:

1. The authority citation for part 679 continues to read as follows:

2. Revise Table 24 to part 679 to read as follows: