In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS) proposes to establish a new DHS system of records titled, “DHS/USCIS-016 Electronic Immigration System-3 Automated Background Functions System of Records.” DHS/USCIS is creating a new electronic environment known as the Electronic Immigration System (USCIS ELIS). USCIS ELIS allows individuals requesting a USCIS benefit to register online and submit certain benefit requests through the online system. This system will improve customer service; increase efficiency for processing benefits; better identify potential national security concerns, criminality, and fraud; and create improved access controls and better auditing capabilities.

DHS and USCIS are promulgating the regulation “Immigration Benefits Business Transformation, Increment I” (August 29, 2011, 76 FR 53764) to make it possible for USCIS to transition to an electronic environment. This regulation will assist USCIS in the transformation of its operations by removing references and processes that inhibit the use of electronic systems or constrain USCIS's ability to respond to changing workloads, priorities, or statutory requirements.

Applicants and petitioners (Applicants); co-applicants, beneficiaries, derivatives, dependents, or other persons on whose behalf a benefit request is made or whose immigration status may be derived because of a relationship to the Applicant (Co-Applicants); and their attorneys and representatives accredited by the Board of Immigration Appeals (Representatives) may create individualized online accounts. These online accounts help Applicants and their Representatives file for benefits, track the status of open benefit requests, schedule appointments, change their addresses and contact information, and receive notices and notifications regarding their cases. Through USCIS ELIS, individuals may submit additional information and/or evidence electronically. Once an individual provides biographic information in one benefit request, USCIS ELIS uses that information to pre-populate any future benefit requests filed by the same individual. This eases the burden on an individual so he or she does not have to repeatedly type in the same information and decreases the opportunity for error.

USCIS collects this information primarily for the benefit decision-making process, to detect duplicate and related accounts, identify potential national security concerns, criminality, and fraud. In essence, Electronic Immigration System-3 Automated Background Functions (USCIS ELIS Automated Background Functions) is used to assist USCIS personnel in verifying the data submitted by the Applicant or Representative, to ensure that any duplicate accounts will be merged, and that background check results, indicating threats to the national security, public safety criminality, or fraud will be appropriately considered in adjudicating the benefit request.

DHS is claiming exemptions from certain requirements of the Privacy Act for DHS/USCIS-016 Electronic Immigration System-3 Automated Background Functions System of Records. Some information in Electronic Immigration System-3 Automated Background Functions (USCIS ELIS Automated Background Functions)relates to official DHS national security, law enforcement, and immigration activities. The exemptions are required to preclude subjects from compromising an ongoing law enforcement, national security or fraud investigation; to avoid disclosure of investigative techniques; to protect the identities and physical safety of confidential informants and law enforcement personnel; and to ensure DHS's ability to obtain information from third parties and other sources.

This system is exempted from the following provisions of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2): 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Additionally, many of the functions in this system require retrieving records from law enforcement systems. Where a record received from another system has been exempted in that source system under 5 U.S.C. 552a(j)(2), DHS will claim the same exemptions for those records that are claimed for the original primary systems of records from which they originated and claims any additional exemptions in accordance with this rule.

The exemptions proposed here are standard for agencies where the information may contain investigatory materials compiled for law enforcement purposes. These exemptions are exercised by executive federal agencies. In appropriate circumstances, where compliance would not appear to interfere with or adversely affect the overall law enforcement process, the applicable exemptions may be waived on a case-by-case basis.

A notice of system of records for DHS/USCIS-016 Electronic Immigration System-3 Automated Background Functions System of Records is also published in this issue of theFederal Register.

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

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

In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS) Federal Emergency Management Agency (FEMA) proposes to establish a new DHS/FEMA system of records titled, “DHS/FEMA-012 Suspicious Activity Reporting System of Records.”

FEMA's mission is to “support our citizens and first responders to ensure that as a nation we work together to build, sustain, and improve our capability to prepare for, protect against, respond to, recover from, and mitigate all hazards.” FEMA will collect, maintain, and retrieve records on individuals who report suspicious activities, individuals reported as being involved in suspicious activities, and individuals charged with the analysis and appropriate handling of suspicious activity reports. FEMA's Office of the Chief Security Officer (OCSO), Fraud and Investigations Unit, manages this process. To reduce any risk of unauthorized access, FEMA SARs are secured in a room monitored by FEMA OCSO special agents and analysts.

FEMA SARs may shared with federal, state, local, and tribal jurisdictions that hold the responsibility of investigating suspicious activities within their jurisdictions. FEMA SARs that do not have a nexus to terrorism or hazards to homeland security, as determined by FEMA OCSO special agents or analysts, are forwarded to the appropriate jurisdiction, such as sheriff offices, county/city police, and state police. FEMA SARs that have a nexus to terrorism or hazards to homeland security, as determined by FEMA OCSO special agents or analysts, are shared with the Federal Bureau of Investigations (FBI) Joint Terrorism Task Force (JTTF), Federal Protective Service, and/or other federal agencies required to investigate and respond to terrorist threats or hazards to homeland security.

FEMA's SAR process is authorized and governed by 44 CFR Chapter 2 “Delegation of Authority;” 42 U.S.C. 5196(d); Executive Orders 12333 and 13388; 40 U.S.C. 1315(b)(2)(F); 6 U.S.C. 314; The Homeland Security Act of 2002, as amended; the Intelligence Reform and Terrorism Prevention Act of 2004, as amended; the National Security Act of 1947, as amended; and FEMA Manual 1010-1 “Federal Emergency Management Agency Missions and Functions.”

Consistent with DHS's information sharing mission, information stored in the DHS/FEMA-012 Suspicious Activity Reporting System of Records may be shared with other DHS components, as well as appropriate federal, state, local, tribal, territorial, foreign, or international government agencies. This sharing will only take place after DHS determines that the receiving component or agency has a need to know the information to carry out national security, law enforcement, immigration, intelligence, or other functions consistent with the routine uses set forth in this system of records notice.

The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which the U.S. Government collects, maintains, uses, and disseminates personally identifiable information. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors.

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

DHS is claiming exemptions from certain requirements of the Privacy Act for the DHS/FEMA-012 Suspicious Activity Reporting System of Records. Some information in the DHS/FEMA-012 Suspicious Activity Reporting System of Records relates to official DHS national security, law enforcement, and intelligence activities. These exemptions are needed to protect information relating to DHS activitiesfrom disclosure to subjects or others related to these activities. Specifically, the exemptions are required to preclude subjects of these activities from frustrating these processes; to avoid disclosure of activity techniques; to protect the identities and physical safety of confidential informants and law enforcement personnel; to ensure DHS' ability to obtain information from third parties and other sources; to protect the privacy of third parties; and to safeguard classified information. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension.

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

A notice of system of records for DHS/FEMA-012 Suspicious Activity Reporting System of Records is also published in this issue of theFederal Register.

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

This proposed rule has been determined to be not significant for purposes of Executive Order 12866, and, therefore, has not been reviewed by the Office of Management and Budget (OMB).

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this rule.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this action on small entities and has determined that its implementation will not have a significant economic impact on a substantial number of small entities. Fees paid by users of the service are not changed by this action; implementation of the new procedures indicates the existing fees remain sufficient to fully reimburse AMS for provision of the services.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. There are approximately sixty cotton merchant organizations of various sizes active in trading U.S. cotton. Cotton merchants voluntarily use the AMS cotton futures classification services annually under the Cotton Futures Act (Act) (7 U.S.C. 15b). Many of these cotton merchants are small businesses under the criteria established by the Small Business Administration (13 CFR 121.201).

Revisions being proposed reflect the progress made in quality determination and data dissemination. The proposed process changes in the classification of cotton futures will yield increases of efficiency to the benefit of the cotton marketing industry.

In compliance with Office of Management and Budget (OMB) regulations (5 CFR part 1320) which implement the Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3520) the information collection requirements contained in the regulation to be amended have been previously approved by OMB and were assigned control number 0581-0029.

AMS Cotton and Tobacco Programs is proposing to revise procedures for providing services related to the classification of cotton futures as authorized by Act by using Smith-Doxey classification data in the cotton futures classification process. The Act requires USDA-certified quality measurements for each bale included in futures contracts for the purpose of verifying that each bale meets the minimum quality requirements for cotton futures trading.

USDA was first directed to provide cotton classification services to producers of cotton under the Smith-Doxey Act of April 13, 1937 (Pub. L. 75-28). Therefore, the original classification of a cotton bale's sample and quality data which results from this classification is commonly referred to as the Smith-Doxey classification or Smith-Doxey data. While cotton classification is not mandatory, practically every cotton bale grown in the United States today is classed by USDA under the authority of the Cotton Statistics and Estimates Act (7 U.S.C. 471-476) and the U.S. Cotton Standards Act (7 U.S.C. 51-65) and under regulations found in 7 CFR part 28—Cotton Classing, Testing, and Standards. The U.S. cotton industry uses Smith-Doxey classification data to assign quality-adjusted market values to U.S. cotton and market U.S. cotton both domestically and internationally. Although the Smith-Doxey classification and the futures classification are independent measures of cotton quality that serve different purposes, the Smith-Doxey data is used by the cotton merchant community to indicate which bales may be tenderable against a cotton futures contract.

USDA's cotton classification capabilities have dramatically improved as a result of the extensive technological progress, increasing data accuracy and operational efficiency. In addition to the increased accuracy and reliability of Smith-Doxey data, improvements in data management and the desire to increase operational efficiencies have prompted the Cotton and Tobacco Programs to propose the use of Smith-Doxey classification data in the cotton futures classification process.

Currently, the futures classification process is a two-step process that occurs after the Smith-Doxey classification in which an initial futures classification is immediately verified by a review—commonly referred to as a final futures classification. When verified by a futures classification, Smith-Doxey classification data will serve as the initial futures classification with the verifying futures classification serving as the final futures classification, reducing the number of futures classifications required in many instances. Verification of Smith-Doxey classing data is necessary because certain quality characteristics—especially color—are known to change over time and when cotton is subjected to certain environmental conditions.

In cases where the comparison of Smith-Doxey data and futures classification data fail to pass pre-established tolerances, the first futures classification becomes the initial futures classification and a second futures classification (final futures classification) will be required. The use of Smith-Doxey classification data will significantly reduce the need for yet another cotton futures classification. The proposed changes would improve operational efficiency while potentially improving the integrity and accuracy of classification data provided to the cotton industry.

For the reasons set forth above, this proposal would amend 7 CFR part 27— Cotton Classification Under Cotton Futures Legislation, which establishes the procedures for determining cotton classification for cotton submitted for futures certification. Specific changes required to implement the proposed futures classification procedure include the elimination of outdated procedures in sections 27.61-27.67, 27.69 and 27.72 used to guide optional reviews of futures classifications and the elimination of references to fees charged for “initial classification and certification”, “review classification and certification” and “combination services” in section 27.80. Conforming changes would also remove references to eliminated sections 27.9, 27.14, 27.21., 27.36 and 27.47 and apply current organizational terminology in paragraph (h) of section 27.2 and section 27.39.

As stated above, the cotton futures classification includes a process by which an initial futures classification is followed up by a futures finalclassification. While not mandatory, this two-stage process has been deemed appropriate by the industry. Therefore, sections 27.61-27.67, 27.69 and 27.72, which address optional reviews of futures classifications, are irrelevant. Furthermore, reference to “initial classification and certification” fees in paragraph (a) of section 27.80 are removed to avoid confusion with Smith-Doxey classifications and to reflect that initial classification fees are already specified in paragraph (b) of 7 CFR 28.909. Likewise, reference to “review classification and certification” fees in paragraph (b) of section 27.80 are removed since fees for review classifications are already specified in 7 CFR 28.911.

The term “combination services” in paragraph (d) of section 27.80 reflects the current practice of performing an “initial” futures classification and an immediate “review” futures classification. Since Smith-Doxey classification data will serve as the initial futures classification when verified by a “review” futures classification, these services will be simply defined as “futures classification services.”

For the reasons set forth in the preamble it is proposed that 7 CFR part 27 be amended as follows:

The phytosanitary treatment regulations contained in 7 CFR part 305 (referred to below as the regulations) set out the general requirements for performing treatments and certifying or approving treatment facilities for fruits, vegetables, and other articles to prevent the introduction or dissemination of plant pests or noxious weeds into or through the United States. The Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture administers these regulations.

The regulations in § 305.9 set out irradiation treatment requirements for imported regulated articles; regulated articles moved interstate from Hawaii, Puerto Rico, and the U.S. Virgin Islands; and regulated articles moved interstate from areas quarantined for certain pests of concern. Under § 305.9, all facilities used to provide irradiation treatment for these articles must operate under a compliance agreement with APHIS and be certified as capable of delivering required irradiation treatment dosages and handling articles to prevent reinfestation of treated articles. An inspector1 monitors all treatments. The regulations require regulated articles to be transported to the facility and handled prior to treatment without significant risk that pests will escape. Safeguards to prevent the escape of pests during transportation to and while at the facility include inspections, physical separation of untreated and treated articles, packaging of regulated articles in sealed, insect-proof cartons, and shipping cartons in sealed containers. Seals must visually indicate if the cartons or containers have been opened. The facility must maintain records of all treatments and must periodically be recertified. These conditions have allowed for the safe, effective treatment of many different kinds of articles, as is demonstrated by the track record of irradiation treatment facilities currently operating in Hawaii and other countries.

In § 305.9, paragraph (a)(1) allows irradiation treatment facilities to be located in any State of the United States, except for the Southern States of Alabama, Arizona, California, Florida, Georgia, Kentucky, Louisiana, Mississippi, Nevada, New Mexico, North Carolina, South Carolina, Tennessee, Texas, and Virginia. When the irradiation regulations were established, these Southern States were identified as having conditions favorable for the establishment of exotic fruit flies. The location restrictions served as an additional safeguard against the possibility that fruit flies could escape from imported articles prior to treatment and become established in the United States.

The regulations do allow irradiation facilities to be located at the maritime ports of Gulfport, MS, Wilmington, NC, and the airport of Atlanta, GA, although no irradiation facilities have been established in these locations. APHIS conducted site-specific evaluations for these three locations and determined that regulated articles can be safely transported to irradiation facilities at these locations under special conditions to mitigate the possible escape of pests of concern.

APHIS has received a petition to open an irradiation facility in McAllen, TX, to treat imported articles or articles moved interstate within the United States. In addition, the irradiation industry has shown considerable interest in locating irradiation facilities in the Southern United States, especially in proximity to the Mexican border. Currently, no irradiation facility is available near the Mexican border. Locating irradiation facilities in the Southern States would allow importers to treat a number of imported articles with irradiation for which no other treatment is available and which currently must be shipped long distances for treatment, such as guavas from Mexico. Locating irradiation facilities in the Southern States would also facilitate the export of certain commodities such as peaches and stone fruits to countries to the south of the United States.

In response to this request and in anticipation of future requests to locate additional irradiation facilities in the Southern States of the United States, we are proposing to establish generic phytosanitary criteria to replace the current criteria for irradiation facilities at the maritime ports of Gulfport, MS, Wilmington, NC, and the airport of Atlanta, GA, and apply to new irradiation treatment facilities in the Southern States of the United States. Under these criteria, in conjunction with the current criteria for irradiation facilities not located in the Southern States, new irradiation facilities could be established in all the Southern States for the treatment of regulated articles that are imported, moved interstate from Hawaii or U.S. territories, or moved interstate from areas quarantined for certain pests of concern. These generic criteria would be supplemented as necessary by additional measures, which would be described in a compliance agreement (discussed below), based on pests of concern associated with specific regulated articles to be treated at the facility and the location of the specific facility.

Using APHIS-approved irradiation facilities located in the United States to treat imported articles offers the advantage of greater ease of monitoring treatment. Using generic criteria for future irradiation facilities located in Southern States would make explicit our criteria for approving these facilities while eliminating the need to undertake rulemaking in order to approve new facilities.

As part of this action, we have prepared a treatment evaluation document (TED) entitled “Generic Phytosanitary Criteria for Establishing Locations for Irradiation Facilities in the Southern United States.” Copies of the TED may be obtained from the person listed underFOR FURTHER INFORMATION CONTACTand may be viewed on the Internet on the Regulations.gov Web site or in our reading room (seeADDRESSESabove for a link to Regulations.gov and information on the location and hours of the reading room). In the TED, we concluded that the pest risks from irradiation facilities in the Southern States can be adequately managedthrough the use of special conditions to mitigate the possible escape of pests of concern.

We are therefore proposing to amend the regulations by replacing the current criteria for irradiation facilities at the maritime ports of Gulfport, MS, Wilmington, NC, and the airport of Atlanta, GA, in paragraph (a)(1) of § 305.9 with generic phytosanitarycriteria for any irradiation facility in a Southern State. The new criteria would have to be followed in addition to the current requirements that apply to all irradiation facilities. The proposed generic criteria for new facilities in the Southern States are based on the current conditions for allowing irradiation facilities at the maritime ports of Gulfport, MS, Wilmington, NC, and the airport of Atlanta, GA. As no irradiation facilities have been established in these three locations, the proposed generic criteria would not impact any existing irradiation facilities.

In paragraph (a)(1)(i) of § 305.9, we are proposing that prospective facility operators in Southern States would have to submit a detailed layout of the facility site and its location to APHIS. APHIS would evaluate plant health risks based on the proposed location and layout of the facility site before a facility was approved. APHIS would only approve a proposed facility if the Administrator determines that regulated articles can be safely transported to the facility from the port of entry or points of origin in the United States. Proposed paragraph (a)(1)(ii) of § 305.9 provides that the government of the Southern State in which the facility would be located would also have to concur in writing with the establishment of the irradiation facility; if it does not concur, the State government must provide a written explanation of concern based on pest risks. In instances where the State government does not concur with the proposed facility location, APHIS and the State would need to agree on a strategy to resolve such risks before APHIS approved the facility.

Under this proposal, paragraphs (a)(1)(iii) and (a)(1)(iv) of § 305.9 would require irradiation facilities in Southern States to meet certain conditions that are currently required for irradiation facilities at the maritime ports of Gulfport, MS, or Wilmington, NC, or the airport of Atlanta, GA. These paragraphs would provide, respectively, that untreated articles may not be removed from their packaging prior to treatment under any circumstances, and that facilities must have contingency plans, approved by APHIS, for safely destroying or disposing of regulated articles if the facility was unable to properly treat a shipment.

Under this proposal, paragraph (a)(1)(v) of § 305.9 would only allow irradiation facilities in Southern States to treat articles that are approved by APHIS for treatment at that facility. If, during the approval process for regulated articles at irradiation facilities in Southern States, additional safeguards are deemed necessary during transport or while at the irradiation facilities for the pests of concern, the compliance agreement for the facility would be amended accordingly.

Under proposed paragraph (a)(1)(vi) of § 305.9, arrangements for treatment would need to be made before the departure of a consignment from its port of entry or points of origin in the United States. This would mean that untreated shipments of regulated articles arriving at the facility would not have to wait for an extended period of time for irradiation treatment. The expeditious treatment of the articles would minimize the risk of pests of concern maturing in fruits, vegetables, and other articles.

The current regulations for irradiation facilities at the maritime ports of Gulfport, MS, or Wilmington, NC, or the airport of Atlanta, GA, prohibit the movement of untreated fruits and vegetables through the Southern States and require that the irradiation facility and APHIS agree in advance on the route by which shipments are allowed to move to the irradiation facility. For irradiation facilities in Southern States, we are proposing in paragraph (a)(1)(vi) of § 305.9 that APHIS and the irradiation facility would have to agree in advance about all parameters, such as time, routing, and conveyance, by which every consignment would move from the port of entry or points of origin in the United States to the irradiation facility. In most instances, the route would be determined by establishing the shortest route between the port of entry or points of origin in the United States and the irradiation facility that does not include an area that contains host material for pests of concern during the time of year that the host material is most abundant in the region. This route would then be used regardless of the time of year, as an area free of host material during the time of year that it is most abundant would be unlikely to grow host material at another time of year. This predetermined route would reduce the amount of time that a shipment would have to wait before undergoing irradiation treatment and would reduce the risk that any pests of concern in the shipments would come into contact with host material en route to the irradiation facility.

In addition to the current requirements to ensure the safe transport of regulated material to and from the irradiation facility, we are also proposing to require in paragraph (a)(1)(vii) that the conveyance transporting the regulated article to the irradiation facility would need to be either refrigerated, via motorized refrigeration equipment or other methods including ice or insulation, or air conditioned to a temperature that would minimize the mobility of the pests of concern for the article. Fruits and vegetables are typically transported in refrigerated or air conditioned conveyances in order to preserve freshness of the commodity and prevent development of toxins that may affect their flavor.

The current regulations for irradiation facilities at the maritime ports of Gulfport, MS, or Wilmington, NC, or the airport of Atlanta, GA, require blacklight or sticky paper to be used within the irradiation facility and other trapping methods to be used within the 4 square miles surrounding the facility. To minimize the presence of host material for the pests of concern for irradiation facilities in Southern States generally, we are proposing in paragraph (a)(1)(viii) of § 305.9 that the facility maintain and provide APHIS an updated map identifying places where horticultural or other crops are grown within 4 square miles of the facility. APHIS will use this information to determine if any host material of concern is present. To help prevent establishment of pests in the unlikely event that they escape despite the required precautions, the location of any host material within 4 square miles of the facility would necessitate specific trapping or other pest monitoring activities to help prevent establishment of any escaped pests of concern, which would be funded by the facility and described in the compliance agreement. All trapping and pest monitoring activities would need to be approved by APHIS. Such activities would include the use of blacklight or sticky paper within the irradiation facility, as required in the current regulations for irradiation facilities at the maritime ports of Gulfport, MS, or Wilmington, NC, or the airport of Atlanta, GA. The irradiation facility would also need to have a pest management plan within the facility.

Irradiation facilities would also be required to comply with any additional requirements that APHIS might require for a particular facility based on local conditions and any other risk factors ofconcern. This could include inspection for certain pests for which irradiation is not an approved treatment. Proposed paragraph (a)(1)(ix) of § 305.9 would require that facilities comply with any additional APHIS requirements. These requirements would be contained in a compliance agreement, which is currently required for all facilities in paragraph (c) of § 305.9. In that paragraph, we are proposing to add that compliance agreements for facilities in Southern States may contain additional provisions.

Currently, as part of the approval process for irradiation facilities, APHIS considers whether a proposed irradiation facility is located within the local commuting area for APHIS employees so that they will be able to perform the oversight and monitoring activities required by § 305.9. When imported articles are to be treated at a facility, APHIS also considers whether the facility is located within an area over which the U.S. Department of Homeland Security2 has customs authority for enforcement purposes. We are proposing to revise paragraph (e), which contains requirements for monitoring and interagency agreements for irradiation treatment facilities, to require all irradiation facilities to be located within the local commuting area for APHIS employees3 for oversight and monitoring purposes. For facilities treating imported articles, we are also proposing to require in paragraph (e)(1) of § 305.9, which pertains to monitoring of such facilities, that the location of the facility would have to be within an area over which the U.S. Department of Homeland Security has customs authority for enforcement purposes.

If regulatory oversight and requirements by other agencies also apply, we are also proposing to require in paragraph (b) of § 305.9, which describes requirements for approval of facilities, that they must concur in writing with the establishment of the facility prior to APHIS approval. For example, irradiation facilities that use a nuclear source would have to receive concurrence from the Nuclear Regulatory Commission, which has jurisdiction over nuclear facilities and materials.

Currently, the regulations in parts 318 and 319 allow the importation of certain fruits from India (mangos), Mexico (guavas), Thailand (litchis, longans, mangoes, mangosteens, pineapples, and rambutans), and Vietnam (dragon fruits), and the interstate movement of several fruits and vegetables from Hawaii, after they have received irradiation treatment. While fruits and vegetables moving from Mexico, Vietnam, and Hawaii may receive irradiation at either the point of origin or upon arrival in the mainland United States, fruit from India and Thailand must be treated prior to arrival in the United States. The regulations in § 305.9, however, allow for irradiation treatment of articles either prior to or after arrival in the United States, provided an APHIS-approved facility is available. The regulations require safeguards to ensure that regulated articles are safely transported to the irradiation facility from the port of arrival without escape of plant pests in transit or at the irradiation facility. These safeguards have successfully prevented the introduction or dissemination of plant pests into or through the United States via the importation or interstate movement of irradiated articles since 1996 when irradiation was first used as a phytosanitary treatment.

We are proposing to amend § 319.56-46 to allow for irradiation treatment of mangos from India in either India or the United States and § 319.56-47 to allow for irradiation treatment of tropical fruits from Thailand in either Thailand or the United States. Fruit from India and Thailand would still be subject to requirements designed to ensure safe transportation of the articles, including insect-proof packaging, inspection, and issuance of a phytosanitary certificate by the national plant protection organization of the country of export. Based on our experience with India's and Thailand's compliance with these requirements for fruit currently irradiated in these countries, we are confident that these countries have the ability to comply with all APHIS requirements and fruit from these countries could be safely treated in the United States.

This proposed rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.

We have prepared an economic analysis for this rule. The economic analysis provides a cost-benefit analysis, as required by Executive Order 12866, and an analysis of the potential economic effects of this action on small entities, as required by the Regulatory Flexibility Act. The economic analysis is summarized below. Copies of the full analysis are available by contacting the person listed underFOR FURTHER INFORMATION CONTACTor on the Regulations.gov Web site (seeADDRESSESabove for instructions for accessing Regulations.gov).

The proposed rule would allow for irradiation treatment of tropical fruits from India and Thailand in either the exporting country or the United States and for the establishment of irradiation facilities in the Southern United States. Using APHIS-approved irradiation facilities located in the United States to treat imported articles offers the advantage of greater ease of monitoring treatment.

The proposed rule would benefit U.S. entities by clearly presenting the criteria that would govern the approval of additional irradiation facilities in the Southern United States, thereby facilitating their establishment. APHIS has not identified any costs associated with establishing the generic criteria for irradiation facility approval described in this the proposed rule. Beyond helping to make the approval of future irradiation facilities in the Southern United States an efficient process, we do not anticipate that the criteria set forth in the proposed rule would result in economic impacts or any significant costs for U.S. entities, large or small based on the available data. APHIS is, however, interested in receiving comments on the potential economic costs associated with the proposed criteria. These criteria include requiring facilities to be within the local commuting area for APHIS employees and within an area over which the U.S. Department of Homeland Security customs authority for enforcement purposes, obtaining written concurrence from the government of the Southern State in which the facility would be located, providing a detailed layout of the facility location, maintaining and providing an updated map identifying places where horticultural or other crops are grown within 4 square miles of the facility, trapping or other pest monitoring activities, agreeing in advance about all parameters by which the consignment will move from the point of entry or origin to the treatment facility, using refrigerated or airconditioned conveyance to transport articles to the facility, ensuring that cartons are off-loaded from conveyances in a safeguarded environment, maintaining physical separation of treated articles from untreated articles, and developing a contingency plan for safely destroying or disposing of untreated or improperly treated articles.

The entities potentially affected by the proposed rule would be the eventual clients of irradiation facilities established in the southern United States. They can be largely classified within the following two industries: Post Harvest Crop Activities (except cotton ginning) (NAICS 115114), and Fresh Fruit and Vegetable Merchant Wholesalers (NAICS 424480).

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) No retroactive effect will be given to this rule; and (2) administrative proceedings will not be required before parties may file suit in court challenging this rule.

To provide the public with documentation of APHIS' review and analysis of any potential environmental impacts associated with providing generic criteria for new irradiation treatment facilities in the Southern States of the United States, we have prepared an environmental assessment. The environmental assessment was prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321et seq.), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

The environmental assessment may be viewed on the Regulations.gov Web site or in our reading room. (A link to Regulations.gov and information on the location and hours of the reading room are provided under the headingADDRESSESat the beginning of this proposed rule.) In addition, copies may be obtained by calling or writing to the individual listed underFOR FURTHER INFORMATION CONTACT.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2009-0100. Please send a copy of your comments to: (1) Docket No. APHIS-2009-0100, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue, SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule.

This proposed rule establishes criteria for irradiation facilities in the Southern States. Implementing this proposed rule will require respondents to provide APHIS with an updated map identifying horticultural/crop areas and contingency plans, approved by APHIS, for safely destroying or disposing of regulated articles.

We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).

Estimate of burden:Public reporting burden for this collection of information is estimated to average 2.3333 hours per response.

Respondents:Irradiation facilities in Southern United States.

Estimated annual number of respondents:3.

Estimated annual number of responses per respondent:2.

Estimated annual number of responses:6.

Estimated total annual burden on respondents:14 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

Accordingly, we propose to amend 7 CFR parts 305 and 319 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 theADDRESSESsection. Include “Docket No. FAA-2011-1040; Directorate Identifier 2011-CE-029-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, tohttp://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 AD No.: 2011-0132, dated July 12, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Piaggio Aero Industries S.p.A. has issued Service Bulletin No. 80-0223,Revision 1, dated July 31, 2009; and Mandatory Service Bulletin No. 80-0289, Revision 1, dated January 11, 2011. 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 this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the 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.

We estimate that this proposed AD will affect 102 products of U.S. registry. We also estimate that it would take about 29 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $4,482 per product.

Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $708,594, or $6,947 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 United States Copyright Office announces the initiation of a rulemaking to determine whether there are any classes of copyrighted works for which noninfringing uses are, or in the next three years are likely to be, adversely affected by the prohibition on circumvention of technological measures that control access to copyrighted works.See17 U.S.C. 1201(a)(1)(C).

The Digital Millennium Copyright Act, Public Law 105-304 (1998), amended title 17 of the United States Code to add Chapter 12, which among other things prohibits circumvention of access control technologies employed by or on behalf of copyright owners to protect their works. Specifically, subsection 1201(a)(1)(A) provides, inter alia,that ``No person shall circumvent a technological measure that effectively controls access to a work protected under this title.''

Subparagraph (B) limits this prohibition. It provides that prohibition against circumvention ``shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title'' as determined in this rulemaking.

Subparagraph (C) provides that every three years, the Librarian of Congress, upon the recommendation of the Register of Copyrights (who is to consult with the Assistant Secretary for Communications and Information of the Department of Commerce) must ``make the determination in a rulemaking proceeding for purposes of subparagraph (B) of whether persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by the prohibition under subparagraph (A) in their ability to make noninfringing uses under this title of a particular class of copyrighted works.'' The Librarian, on the recommendation of the Register, has thus far made four such determinations. This notice announces the commencement of the fifth rulemaking proceeding under section 1201(a)(1)(C).

The exemptions promulgated by the Librarian in the first rulemaking were in effect for the 3-year period from October 28, 2000, through October 28, 2003.See Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies,65 FR 64556, 64564, published in the Federal Register October 27, 2000 (hereinafter Final Reg. 2000). On October 28, 2003, the Librarian of Congress published the second determination as to classes of works to be exempted from the prohibition.Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies,68 FR 62011, 62013, published in the Federal Register October 31, 2003 (hereinafter Final Reg. 2003). The four exemptions created in the second anticircumvention rulemaking remained in effect for a 3-year period. On November 27, 2006, the Librarian of Congress published the third determination.Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies,71 FR 68472, 68480, published in theFederal RegisterNovember 27, 2006 (hereinafter Final Reg. 2006). The six exemptions established in the third anticircumvention rulemaking remained in effect until August 6, 2010. On August 6, 2010, the Librarian of Congress published the fourth determination, which will remain in effect until the conclusion of the next rulemaking.Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies,75 FR 47464, published in theFederal RegisterAugust 6, 2010 (hereinafter Final Reg. 2010). All four of the previous determinations by the Librarian of Congress were made upon the recommendation of the Register of Copyrights following extensive rulemaking proceedings.

Title I of the Digital Millennium Copyright Act was,inter alia,the congressional fulfillment of obligations of the United States under the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. For additional information on the historical background and the legislative history of Title I,see Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies,64 FR 66139, 66140 (1999) [http://www.loc.gov/copyright/fedreg/1999/64fr66139.html].

Section 1201 of title 17 of the United States Code prohibits two general types of activity: (1) The conduct of ``circumvention'' of technological protection measures that control access to copyrighted works and (2) trafficking in any technology, product, service, device, component, or part thereof that protects either ``access'' to a copyrighted work or that protects the ``rights of the copyright owner,'' if that device or service meets one of three conditions. The first type of activity, the conduct of circumvention, is prohibited in section 1201(a)(1). The latter activities, trafficking in devices or services that circumvent ``access'' or ``the rights of the copyright owner,'' are contained in sections 1201(a)(2) and 1201(b) respectively. In addition to these prohibitions, section 1201 also includes a series of section-specific limitations and exemptions to the prohibitions of section 1201.

Subsection 1201(a)(1) applies when a person who is not authorized by the copyright owner to gain access to a work does so by circumventing a technological measure put in place with the authority of the copyright owner to control access to the work.See Report of the House Committee on Commerce on the Digital Millennium Copyright Act of 1998,H.R. Rep. No. 105-551, pt. 2, at 36 (1998) (hereinafter Commerce Comm. Report).

That section provides that ``No person shall circumvent a technologicalmeasure that effectively controls access to a work protected under this title.'' 17 U.S.C. 1201(a)(1)(A) (1998).

The relevant terms are defined:

(3) As used in this subsection—

(A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and

(B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work. 17 U.S.C. 1201(a)(3).

The statutory focus of this rulemaking is limited to one subsection of section 1201: the prohibition on the conduct of circumvention of technological measures that control access to copyrighted works. 17 U.S.C. 1201(a)(1)(C) [http://www.copyright.gov/title17/92chap12.html#1201]. The Librarian of Congress has no authority to limit either of the anti-trafficking provisions contained in subsections 1201(a)(2) or 1201(b). 17 U.S.C. 1201(a)(1)(E). Moreover, for a proposed exemption to be considered in this rulemaking, there must be a causal connection between the prohibition in 1201(a)(1) and the adverse effect on noninfringing uses.

This rulemaking addresses only the prohibition on the conduct of circumventing measures that control “access” to copyrighted works,e.g.,decryption or hacking of access controls such as passwords or serial numbers. The structure of section 1201 is such that there exists no comparable prohibition on the conduct of circumventing technological measures that protect the “rights of the copyright owner,”e.g.,the section 106 rights to reproduce, adapt, distribute, publicly perform, or publicly display a work. Circumventing a technological measure that protects these section 106 rights of the copyright owner is governed not by section 1201, but rather by the traditional copyright rights and the applicable limitations in the Copyright Act. For example, if a person having lawful access to a work circumvents a measure that prohibits printing or saving an electronic copy of an article, there is no provision in section 1201 that precludes this activity. Instead, it would be actionable as copyright infringement of the section 106 right of reproduction unless an applicable limitation applied,e.g.,fair use. The trafficking in,inter alia,any device or service that enabled others to circumvent such a technological protection measure may, however, be actionable under section 1201(b).

On the other hand, because there is a prohibition on the act of circumventing a technological measure that controls access to a work, and since traditional Copyright Act limitations are not defenses to the act of circumventing a technological measure that controls access, Congress chose to create the current rulemaking proceeding as a “fail-safe mechanism” to monitor the effect of the anticircumvention provision in section 1201(a)(1)(A). Commerce Comm. Report, at 36. This anticircumvention rulemaking is authorized to monitor the effect of the prohibition against “access” circumvention on noninfringing uses of copyrighted works. In this triennial rulemaking proceeding, effects on noninfringing uses that are unrelated to section 1201(a)(1)(A) may not be considered. 17 U.S.C. 1201(a)(1)(C).

In the first rulemaking, the Register concluded from the language of the statute and the legislative history that a determination to exempt a class of works from the prohibition on circumvention must be based on a showing that the prohibition has or is likely to have a substantial adverse effect on noninfringing uses of a particular class of works. (The meaning of the phrase “class of works” is described in section E of this Notice of Inquiry.) It was determined that proponents of an exemption bear the burden of proof that an exemption is warranted for a particular class of works and that the prohibition is presumed to apply to all classes of works unless an adverse impact has been shown.SeeCommerce Comm. Report, at 37 andsee also,Final Reg. 2000, 65 FR at 64558.

The “substantial” adverse effect requirement has also been described as a requirement that the proponent of an exemption must demonstrate “distinct, verifiable, and measurable impacts,” and more than “de minimisimpacts.”SeeFinal Reg. 2003, 68 FR at 62013. Whatever label one uses, proponents of an exemption bear the burden of providing sufficient evidence under this standard to support an exemption. How much evidence is sufficient will vary with the factual context of the alleged harm. Further, proof of harm is never the only consideration in the rulemaking process, and therefore the sufficiency of the evidence of harm will always be relative to other considerations, such as, the availability of the affected works for use, the availability of the works for nonprofit archival, preservation, and educational purposes, the impact that the prohibition has on criticism, comment, news reporting, teaching, scholarship, or research, the effect of circumvention on the market for or value of copyrighted works, and any other relevant factors.

In order to meet the burden of proof, proponents of an exemption must provide evidence either that actual harm currently exists or that it is “likely” to occur in the ensuing 3-year period. Actual instances of verifiable problems occurring in the marketplace are generally necessary in order to prove actual harm. The most compelling cases of actual harm will be based on first-hand knowledge of such problems. Circumstantial evidence may also support a claim of present or likely harm, but such evidence must also reasonably demonstrate that a measure protecting access was the cause of the harm and that the adversely affected use was, in fact, noninfringing. “Likely” adverse effects may also support an exemption. This standard of “likelihood” requires proof that adverse effects are more likely than not to occur. Claims based on “likely” adverse effects cannot be supported by speculation alone.See Staff of House Committee on the Judiciary, 105th Cong., Section-by-Section Analysis of H.R. 2281as Passed by the United States House of Representatives on August 4, 1998, (hereinafter House Manager's Report), at 6, (an exemption based on “likely” future adverse impacts during the applicable period should only be made “in extraordinary circumstances in which the evidence of likelihood is highly specific, strong and persuasive.”). Conjecture alone is insufficient to support a finding of “likely” adverse effect. Final Reg. 2000, 65 FR at 64559. Although a showing of “likely” adverse impact will necessarily involve prediction, the burden of proving that the expected adverse effect is more likely than other possible outcomes rests firmly on the proponent of the exemption.

The identification of existing or likely problems is not, however, the end of the analysis. In order for an exemption of a particular class of works to be warranted, a proponent must show that such problems justify an exemption in light of all of the relevant facts. The identification of isolated or anecdotal problems will be generally insufficient to warrant an exemption. Similarly, the mere fact that the digital format would be more convenient to use fornoninfringing purposes is generally insufficient factual support for an exemption. Further, purely theoretical critiques of section 1201 cannot satisfy the requisite showing. House Manager's Report, at 6. Proponents of exemptions must show sufficient harm to warrant an exemption from the default rule established by Congress—the prohibition against circumvention.

There is a presumption that the section 1201 prohibition will apply to any and all classes of works, including previously exempted classes, unless a new showing is made that an exemption is warranted. Final Reg. 2000, 65 FR at 64558. Exemptions are reviewed de novo and prior exemptions will expire unless sufficient new evidence is presented in each rulemaking that the prohibition has or is likely to have an adverse effect on noninfringing uses. The facts and argument that supported an exemption during any given 3-year period may be insufficient within the context of the marketplace in a different 3-year period. Similarly, proposals that were not found to justify an exemption in any particular rulemaking could find factual support in the context and on the record of another rulemaking.

Evidence in support or in opposition to an exemption should be contained in the initial comments or, after publication of the proposed classes in theFederal Register, in the comments on the proposed exemptions. The purpose of this rulemaking is to survey interested parties in the digital environment to discover whether section 1201(a)(1) is adversely affecting noninfringing uses of particular classes of copyrighted works. The proposals received in the initial comments will frame the inquiry throughout the rest of the rulemaking process. The comments submitted in response to this Notice of Inquiry will be posted on the Copyright Office Web site shortly after submission, and a Notice of Proposed Rulemaking identifying the classes of works proposed will be published in theFederal Registershortly thereafter.1 The Notice of Proposed Rulemaking will invite copyright owners and other interested parties to offer their comments in support of or opposition to the proposed classes. Comments responsive to the proposed classes may also propose modest refinements to the proposed classes and supply additional evidence, but may not propose completely new classes of works. Since opponents to exemptions have only one comment period to provide written responses to the exemptions proposed, opponents should have sufficient notice of the exemptions to be addressed in the rulemaking. Copyright owners and other interested parties, however, should be vigilant in monitoring classes proposed in the initial comment period that may implicate their interests as such classes may be further refined in the ensuing rulemaking process.

The Office will post all of the comments, hearing transcripts, and other relevant material in this rulemaking proceeding, as the Office has done since the inception of this rulemaking proceeding, on the Copyright Office's Web site at:http://www.copyright.gov/1201.2

The Copyright Office will also conduct a series of hearings on the proposed exemptions in the Spring, in Washington DC and possibly in California. These hearings will offer proponents and opponents of exemptions an opportunity to present arguments and answer questions from the Register and her staff. These hearings—the time, date and subject matter of which will be announced early in 2012—will not provide a forum in which to raise new proposals or to submit wholly new evidence. Evidence that demonstrates how a technological measure operates and affects noninfringing uses as well as evidence that is responsive to earlier disputes raised in the comment process is welcomed, and is encouraged, at these hearings. However, the hearings may not be used as a vehicle for surprise or to present untimely proposals.

The Register is also likely to pose post-hearing questions to specific parties or witnesses that participated in the rulemaking proceeding. These questions have historically sought clarification of legal and factual questions, including specific requests to explain the operation of a technological measure at issue. Such post-hearing questions should not be construed as a general public post-hearing comment phase—there simply will not be sufficient time to consider another round of general public comments before the announcement of the newly exempted classes—but rather are invitations addressed to specific witnesses who have offered testimony on an issue to provide further clarification in response to specific questions from the Register. The questions and the responses to the questions will be posted on the Copyright Office's website after the responses have been received.

Other statutory considerations must also be balanced with evidence of adverse effects attributable to the prohibition. In making her recommendation to the Librarian, the Register is instructed to consider the availability for use of copyrighted works. 17 U.S.C. 1201(a)(1)(C)(i). This inquiry demands that the Register consider whether “works” protected by technological measures that control access are also available in the marketplace in formats that are unprotected. The fact that a “work” (in contrast to a particular “copy” of a work) is available in a format without technological protection measures may be significant because the unprotected formats might allow the public to make noninfringing uses of the work even though other formats of the work would not. For example, in the first rulemaking, many users claimed that the technological measures on motion pictures contained on Digital Versatile Disks (DVDs) restricted noninfringing uses of the motion pictures. A balancing consideration was that the record revealed at that time that the vast majority of these works were also available in analog format on VHS tapes. Final Reg. 2000, 65 FR at 64568. Thus, the full range of availability of a work for use is necessary to consider in assessing the need for an exemption to the prohibition on circumvention.

Another consideration relating to the availability for use of copyrighted works is whether the measure supports a distribution model that benefits the public generally. For example, while a measure may limit the length of time that a work may be accessed (time-limited) or may limit the scope of access (scope-limited),e.g.,access to only a portion of work, those limitations may benefit the public by providing “use-facilitating” models that allow users to obtain access to works at a lower cost than they would otherwise be charged were such restrictions not in place. If there is sufficient evidence that particular classes of works would not be offered at all without the protection afforded by technological protection measures that control access, this evidence must be considered. House Manager's Report, at 6. Accord, Final Reg. 2000, 65 FR at 64559. Thus, the Register's inquiry must assess any benefits to the public resulting from theprohibition as well as the adverse effects that may be established.

Section 1201 does not define a critical term for the rulemaking process: a “class of works.” With respect to this issue and others, commenters should familiarize themselves with the Register's recommendation and the Librarian's determination in the first rulemaking and in the subsequent three rulemakings, since many of the issues which were unsettled at the start of the first rulemaking have been addressed and developed in the four determinations. While the approach taken in resolving the issues raised in these rulemakings may continue to develop in this and subsequent proceedings, interested parties should assume that the standards developed thus far will continue to apply in the current proceeding. Of course, commenters may argue for adoption of alternative approaches,3 but a persuasive case will have to be made to warrant reconsideration of previous decisions regarding interpretation of section 1201.

In the first rulemaking, the Register elicited views on the scope and meaning of the term “class of works.” After review of the statutory language, the legislative history and the extensive record in the proceeding [seeFinal Reg., 65 FR at 64557 for a description of the record in the last rulemaking proceeding], the Register reached certain conclusions on the scope of this term. [For a more detailed discussion,seeFinal Reg., 65 FR at 64559.]

The Register found that the statutory language required that the Librarian identify a “class of works” primarily based upon attributes of the works themselves, and not by reference to some external criteria such as the intended use or the users of the works. The phrase “class of works” connotes that the shared, common attributes of the “class” relate to the nature of authorship in the “works.” Thus a “class of works” was intended to be a “narrow and focused subset of the broad categories of works of authorship * * * identified in section 102.” Commerce Comm. Report, at 38. The starting point for a proposed exemption of a particular class of works must be the section 102 categories of authorship: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.

This determination is supported by the House Manager's Report which discussed the importance of appropriately defining the proper scope of the exemption. House Manager's Report, at 7. The legislative history stated that it would be highly unlikely for all literary works to be adversely affected by the prohibition and therefore, determining an appropriate subcategory of the works in this category would be the goal of the rulemaking.Id.

Therefore, the Register concluded that the starting point for identifying a particular “class of works” to be exempted must be one of the section 102 categories. Final Reg., 65 FR at 64559-64561. From that starting point, it is likely that the scope or boundaries of a particular class would need to be further limited to remedy the particular harm to noninfringing uses identified in the rulemaking.

In the first anticircumvention rulemaking, the Register recommended and the Librarian agreed that two classes of works should be exempted:

(1) Compilations consisting of lists of websites blocked by filtering software applications; and

(2) Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsoleteness.

While the first class exempted fits comfortably within the approach to classification discussed above, the second class includes the entire category of literary works, but narrows the exemption by reference to attributes of the technological measures that controls access to the works.

In the 2006 rulemaking, the Register determined that a further refinement of the approach to determining a particular class of works was warranted. Even though a class must begin, as its starting point, by reference to one of the categories of authorship enumerated in section 102 of the Copyright Act (or some subset thereof), that class should be further tailored to address the harm (actual or likely) alleged. The proper tailoring of a class will depend on the specific facts, but in some cases, the most appropriate manner of further tailoring the category or sub-category may be to limit the class in relation to particular uses or users.

The impetus for this refinement was a proposed exemption for film and media studies professors. The proponents of the exemption demonstrated that the reproduction and public performance of short portions of motion pictures or other audiovisual works in the course of face-to-face teaching activities of a film or media studies course would generally constitute a noninfringing use. The proponents further demonstrated that the digital version of the motion pictures distributed on DVDs was not merely a preferred format, but that the digital version of these works was the only version of the work that met the pedagogical needs of the film and media studies professors. The proponents of the exemption also demonstrated that their otherwise noninfringing uses of the digital versions of these motion pictures were adversely affected by the prohibition on circumvention of technological measures protecting access to these works, because the Content Scrambling System (CSS) contained on most commercially released DVDs was an access control system that prevented the making of a compilation of film clips for classroom use. Although opponents of the exemption demonstrated a DVD player that was alleged to meet the pedagogical needs of educators, the device presented obstacles for classroom use that were found to be more than a mere inconvenience for a subset of users—film and media studies professors.

The proponents met their burden of proving that section 1201(a)(1) was adversely affecting film and media studies educators' ability to engage in noninfringing uses for the ensuing 3-year period and that no reasonable substitute for the pedagogically beneficial digital content was available or likely to become available in the next three years. The opponents of the proposal expressed concern that if the proposed class of works—audiovisual works included in the educational library of a college or university's film or media studies department and that are protected by technological measures that prevent their educational use—was based only on attributes of the work itself, the exemption would necessarily exempt a much broader range of uses than those in which the film professors wished to engage. Moreover, copyright owners were concerned that such an exemption would create public confusion about the circumstances in which circumvention was appropriate. Given the expanse of such a class of works and the adverse effects that could occur as a result of confusion about the class, copyright owners argued that overall harm of such an exemption would outweigh the marginal benefits to this subset of educators.

The Register concluded that a further refinement of the scope of a class of works was the proper balance to the valid concerns of both educators and copyright owners. By delineating the class in relation to the relevant noninfringing use proven to be, or likely to be, adversely affected by the prohibition on circumvention, film and media studies educators' needs could be met while leaving the statutory prohibition against circumvention intact for that class with respect to other uses. In the fourth rulemaking concluded in 2010, similar refinements were made to certain classes of works.See37 CFR 201.40(b)(1), (2), (3), and (4).

In all proposed exemptions, the starting point for a class of works must be a section 102 category of authorship, or a subset thereof. That category or subset should then be tailored by other criteria as appropriate under the particular facts presented. The goal is to fashion an exemption that is neither too narrow nor too broad to remedially address the evidence of present and likely harm. An appropriately fashioned exemption will assist users and copyright owners alike, by temporarily suspending the prohibition on circumvention for appropriately tailored adversely affected classes, while preserving the prohibition in all other classes.

The exemptions published for each three-year period are temporary and expire when the succeeding determination of the Librarian of Congress is published. This rulemaking will examine adverse effects existing in the marketplace or likely to exist in the next three-year period to determine whether any exemptions to the prohibition on circumvention of technological protection measures that effectively control access to copyrighted works are warranted by the evidence raised during this rulemaking.

This notice requests written comments from all interested parties wishing to propose a class of works for exemption from the prohibition on circumvention. In addition to the necessary showing discussed above, in order to make a prima facie case for a proposed exemption, certain critical points should be established. First, a proponent should identify the technological measure that is the ultimate source of the alleged problem, and the proponent should explain how the technological measure effectively controls access to a copyrighted work. Second, a proponent must specifically explain what noninfringing activity the prohibition on circumvention is preventing. In addition to describing the activity, the proponent should provide a factual basis for a determination that the technological measure has had or is likely to have a substantial adverse effect on noninfringing uses; demonstrating only isolated instances of relatively minimal adverse effects is not likely to meet the proponent's burden. Third, a proponent should establish that the prevented activity is, in fact, a noninfringing use under current law. A proponent should also demonstrate why the access-protected copy of a work is needed for the noninfringing use and why alternate means of engaging in the noninfringing uses (including use of available copies of the work in unprotected formats), if they exist, are an insufficient substitute for accomplishing the noninfringing use.

The nature of the Librarian's inquiry is further delineated by the statutory areas to be examined by the Register of Copyrights:

(i) The availability for use of copyrighted works;

(ii) the availability for use of works for nonprofit archival, preservation, and educational purposes;

(iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research;

(iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and

(v) such other factors as the Librarian considers appropriate. 17 U.S.C. 1201(a)(1)(C).

These statutory considerations require examination and careful balancing. The harm identified by a proponent of an exemption must be balanced with the harm that would result from an exemption. In some circumstances, the adverse effect of a proposed exemption in light of these considerations may be greater than the harm posed by the prohibition on circumvention of works in the proposed class. Perhaps the proper balance can be resolved by carefully tailoring the scope of the class, but ultimately, the determination of the Librarian must take all of these factors into account.

In the first rulemaking, the Register determined that the burden of proof is on the proponent of an exemption to come forward with evidence supporting an exemption for a particular class of works. In this fifth triennial rulemaking, the Register shall continue with the procedure adopted in the second, third and fourth rulemakings: Comments submitted in the initial comment period should be confined to proposals for exempted classes. They should specifically identify particular classes of works adversely affected by the prohibition and provide evidentiary support for the need for the proposed exemptions (seesection F above).

Proponents should present theirentirecase in their initial comments. A proponent of a particular class of works will not be permitted to submit an additional comment in support of that class in response to the December notice of proposed rulemaking unless, at least 15 days before the deadline for comments in response to the notice of proposed rulemaking, the proponent has submitted a written request for permission to submit an additional comment demonstrating good cause to permit the submission of the comment, and the Copyright Office has approved the submission of the comment. The purpose of this requirement is to provide for the orderly presentation of evidence and arguments, and to permit both proponents and opponents to present their best cases.

For each particular class of works that a commenter proposes for exemption, the commenter should first identify that class, followed by a summary of the argument in favor of exempting that proposed class. The commenter should then specify the facts and evidence providing a basis for this exemption. This factual information should ideally include the technological measure that controls access and the manner in which this technological measure operates to control access to a copyrighted work. Finally, the commenter should state any legal arguments in support of the exemption, including the activity that is claimed to be noninfringing, the legal basis for this claim, and why this noninfringing activity cannot be accomplished in other ways. The legal argument should include an analysis of the factors set forth in 17 U.S.C. 1201(a)(1)(C), discussed above. This format of class/summary/facts/argument should be sequentially followed for each class of work proposed as necessary.

As discussed above, the best evidence in support of an exemption would consist of concrete examples or specific instances in which the prohibition on circumvention of technological measures protecting access has had or is likely to have an adverse effect on noninfringing uses. It would also be useful for the commenter to quantify the adverse effects in order to explain the scope of the present or likely problem. As noted above, demonstrating onlyisolated instances of relatively minimal adverse effects is not likely to meet the proponent's burden.

Comments subsequently submitted in response to exemptions proposed in the first round of comments should provide factual information and legal argument addressing whether or not a proposed exemption should be adopted. Since the comments in this second round are intended to be responsive to the initial comments, commenters must identify which proposal(s) they are responding to, whether in opposition, support, amplification or correction. As with initial comments, these responsive comments should first identify the proposed class or classes to which the comment is responsive, provide a summary of the argument, and then provide the factual and/or legal support for their argument. This format of class/summary/facts and/or legal argument should be repeated for each comment responsive to a particular proposed class of work.

All comments must, at a minimum, contain the legal name of the submitter and the entity, if any, on whose behalf the comment was submitted. If persons do not wish to have their address, telephone number, or email address publicly displayed on the Office's website, comments should not include such information on the document itself but should only include the legal name of the commenter. The Office strongly prefers that all comments be submitted in electronic form and the electronic form will provide a place to provide the required information separately from the attached comment submission. However, anyone who cannot submit comments electronically may contact the Copyright Office at 202-707-8380 for special instructions. Electronic comments successfully submitted through the Office's website will generate a confirmation receipt to the submitter.

The Copyright Office's Web site will contain a submission page at:http://www.copyright.gov/1201/comment-forms.Approximately thirty days prior to the deadline for submission of comments, the form page will be activated on the Copyright Office Web site allowing information to be entered into the required fields, including the name of the person making the submission, mailing address, telephone number, and email address. There will also be non-required fields for,e.g.,the commenter's title, the organization that the commenter is representing, whether the commenter is likely to request to testify at public hearings and if so, whether the commenter is likely to prefer to testify in Washington, DC, or at a location in California. Commenters will also be required to fill in two additional fields: (1) The proposed class or classes of copyrighted work(s) to be exempted, and (2) a brief summary of the argument(s).

All comments submitted electronically must be sent as an attachment, and must be in a single file in either Adobe Portable Document File (PDF) format (preferred), Microsoft, WordPerfect, Rich Text Format (RTF), or ASCII text file format. There will be a browse button on the form that will allow submitters to attach the comment file to the form and then to submit the completed form to the Office.

The personal information entered into the required fields on the form page will not be publicly posted on the Copyright Office website, but the Office intends to post on its website the name of the proponent, the proposed class and possibly the summary of the argument, as well as the entire, attached comment document. Only the commenter's name is required on the comment document itself and a commenter who does not want other personal information posted on the Office's Web site should avoid including other personal information on the comment itself. Except in exceptional circumstances, changes to the submitted comment will not be allowed and it will become a part of the permanent public record of this rulemaking.

Comments will be accepted for a period of 30 days, and a form will be placed on the Copyright Office Web site 30 days prior to the deadline for submission. Initial comments will be accepted from November 2, 2011, until December 1, 2011, at 5 p.m. Eastern Standard Time, at which time the submission form will be removed from the website. The deadline for the second round of comments will be announced in the Notice of Proposed Rulemaking to be published in December, and will probably be early in February 2012.

As mentioned above, after the conclusion of the comment periods, the Register intends to hold public hearings in the Spring. The dates and locations of the hearings in, have not yet been determined, although at a minimum hearings will be conducted in Washington DC and, possibly, in California. A separate notice providing details about all hearings in this rulemaking proceeding will be published at a later time in theFederal Registerand on the Copyright Office's website. In order to assist the Copyright Office in identifying the number of days for hearings, the comment form page will contain non-required fields asking whether the commenter is likely to request to testify and if so, in which location. Formal requests to testify will be solicited early in 2012.

As noted above, following the hearings, the Copyright Office may request additional information from parties who have been involved in the rulemaking process. Such requests for responses to questions will take the form of a letter from the Copyright Office and will be addressed to particular parties involved in an issue in which more information is sought. These inquiries will include deadlines based on when the requests for information are sent. After the receipt of all responses to all inquiries from the Copyright Office, the Office will post the questions, the parties to whom the questions were sent, and the responses on the Copyright Office's website.

To provide sufficient flexibility in this proceeding in the event that unforeseen developments occur after the deadlines for the filing of initial comments, a person wishing to propose an exemption for a particular class of works after the specified deadline for initial comments may petition the Register to consider an additional exemption. A petition, including proposed new classes of works to be exempted, must be in writing and must set forth the reasons why the information could not have been made available earlier and why it should be considered by the Register after the deadline. A petition must also be accompanied by a comment that meets the requirements for initial comments set forth in section 3 above. Any person wishing to submit a petition should contact the Copyright Office at 202-707-8380 for further information on how to submit the petition. Such petitions will be granted only when the Office has been satisfied that late submission is justified due to exceptional or unforeseen circumstances. Exceptional or unforeseen circumstances generally require that the proposal be based upon information that did not exist at the time of the comment periods. A person wishing to file any other untimely submission (e.g., a comment in response to a proposed class of works) may also petition the Register to consider such submission, but such untimely submissions will be disfavored. The Register will make a determinationwhether to accept a petition based on the stage of the rulemaking process at which the request is made and the merits of the petition. A substantively meritorious petition may be denied if the petition comes so late in the process that adequate notice and comment cannot be accommodated within the statutory time frame of the rulemaking process. The mere fact that an interested party was unaware of this proceeding or of any particular exemptions proposed in this proceeding is not a valid justification for a late submission. If a petition is accepted, the Register will publish the proposal in theFederal Registerand announce deadlines for comments. If a petition is denied, the Register will set forth the reasons for the denial in a letter to the petitioner. All petitions and responses will become part of the public record in this rulemaking process.

This proposal addresses the following local rules: SBAPCD Rule 321, “Solvent Cleaning Machines and Solvent Cleaning”, SMAQMD Rule 466, “Solvent Cleaning”, SCAMQD Rule 1171, “Solvent Cleaning Operations” and SCAMQD Rule 1148.1, “Oil and Gas Production Wells.” In the Rules and Regulations section of thisFederal Register, we are approving these local rules in a direct final action without prior proposal because we believe these SIP revisions are not controversial. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in subsequent action based on this proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change tohttp://www.regulations.govand will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2011-0076), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go tohttp://www.regulations.govand insert “USCG-2011-0076” in the “Keyword” box. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope.

We will consider all comments and material received during the comment period and may change this proposed rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go tohttp://www.regulations.gov,click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2011-0076” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008 issue of theFederal Register(73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one to the docket using one of the methods specified underADDRESSES. In your request, explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in theFederal Register.

On March 30, 2011, we published a direct final rule entitled “Inflatable Personal Flotation Devices” in theFederal Register(76 FR 17561). The Coast Guard received three submissions in response to the direct final rule: One supportive of the rulemaking generally, one which raised questions about a revision to one of the standards incorporated by reference, and one adverse comment related to the deletion of the words “approved for use byadults only” from the regulations. Because we received an adverse comment, the Coast Guard is withdrawing the direct final rule in a notice of withdrawal published separately in this issue of theFederal Register, and issuing this notice of proposed rulemaking (NPRM) instead.

This NPRM proposes the same content as the direct final rule with one change to update a version of an industry standard proposed for incorporation by reference. The comments received in response to the direct final rule are discussed below under “Discussion of the Proposed Rule.”

The Coast Guard is charged with establishing minimum safety standards, and procedures and tests required to measure conformance with those standards, for recreational vessels and associated equipment.See46 U.S.C. 4302, and Homeland Security Delegation #0170.1, section II, paragraph (92)(b). Under this authority, in 1995 the Coast Guard promulgated regulations establishing structural and performance standards for inflatable recreational PFDs and procedures and tests necessary for Coast Guard approval of such PFDs meeting the standards.See46 CFR part 160, subpart 160.076 (Inflatable Recreational Personal Floatation Devices); 60 FR 32835 (June 23, 1995). Subpart 160.076 incorporates by reference three Underwriters Laboratories (UL) Standards 1180, “Fully Inflatable Personal Flotation Devices” (First Edition); 1191, “Components for Personal Flotation Devices” (Second Edition); and 1123, “Marine Buoyant Devices” (Fifth Edition).

The editions of these UL Standards currently incorporated by reference into subpart 160.076 were current when the Coast Guard promulgated subpart 160.076 in 1995. However, UL has since published newer editions of these Standards that the Coast Guard considers to contain technological and safety developments since 1995 that are important to codify in subpart 160.076. In this proposed rule, the Coast Guard proposes to update the editions of the UL Standards incorporated by reference in subpart 160.076.

The editions of these UL Standards currently incorporated by reference in subpart 160.076, as well the editions that will replace the currently incorporated versions, limit the use of inflatable PFDs to persons at least 16 years of age and weighing more than 80 pounds. Therefore, the Coast Guard only approves inflatable PFDs with these age and weight limitations. When the Coast Guard promulgated subpart 160.076, inflatable PFD-technology was relatively new and the appropriateness of these devices for children had not yet been explored. At that time, the Coast Guard stated, “The Coast Guard agrees with those comments that suggested that approval of inflatable PFDs for children is not appropriate at this time. * * * The issue of inflatable PFDs for children can be revisited after more experience is gained with the approval of inflatable PFDs for adults.” 60 FR 32839, 32841. As such, subpart 160.076 currently limits Coast Guard-approved inflatable PFDs to “use by adults only.” 46 CFR 160.076-1(b)(2).

Although the Coast Guard is not yet ready to revisit the issue of inflatable PFDs for children, the industry has begun considering the experience it has gained from adults' usage of inflatable PFDs during the past 15 years, as well as advances in inflatable PFD technology, to explore the appropriateness of these devices for children and create an appropriate standard.

In 2009, a member of the PFD industry submitted a proposal to the UL Standards Technical Panel (STP) proposing new standards for inflatable PFDs designed for children. The Coast Guard understands that the UL Standards development effort continues to move forward, and there may be other standards addressing inflatable PFDs for children in development. Inflatable PFDs constructed and tested to any new standard adopted by a consensus body, however, would not be eligible for Coast Guard approval until that standard is incorporated by reference into Coast Guard regulations after consideration of the appropriateness of incorporating such a new standard during a rulemaking that includes an opportunity for public comment. The Coast Guard plans to initiate such a rulemaking in the future and is using this rulemaking to prepare for such a rulemaking as discussed below.

This rulemaking does not constitute approval of the use of inflatable PFDs for users under 16 years of age or a proposal for such approval. The newer editions of the UL Standards proposed to be incorporated by reference in this rule retain requirements for inflatable PFDs for adult wearers only. While there are still outstanding concerns relative to the considerations for designing an inflatable PFD intended for use by wearers under the age of 16, the Coast Guard recognizes that these matters are being addressed by UL's STP through the American National Standards Institute (ANSI)-accredited standards development process. The Coast Guard actively participates in the STP and continues to work cooperatively with the PFD industry to develop appropriate design, testing, and marking requirements for inflatable PFDs for use by children. This rule would facilitate and encourage the continuation of this process, but is not intended to resolve any technical issues.

The Coast Guard proposes to revise 46 CFR part 160, subpart 160.076 to update the editions of the UL Standards incorporated by reference and to make necessary conforming changes resulting from incorporating the updated standards. The conforming changes would include removing test methods, acceptance criteria, and other standards currently contained in subpart 160.076 that are made redundant by the newer editions of the UL Standards. The Coast Guard also proposes to make minor regulatory text revisions to subpart 160.076 that have a non-substantive effect.

In response to the direct final rule, which included the same content as proposed below, one commenter expressed support, citing the removal of barriers to the development of innovative PFDs as leading to an expected improvement in the quality and variety of inflatable lifejackets available to the public. The Coast Guard appreciates the support and seeks public comment on the proposed rule.

The proposal to update the standards incorporated by reference in 46 CFR 160.076-11 is intended to harmonize the requirements for Coast Guard approval of recreational inflatable PFDs with voluntary industry consensus standards.

The updated UL Standards proposed for incorporate by reference are as follows:

• UL 1180, “UL Standard for Safety for Fully Inflatable Recreational Personal Flotation Devices,” is updated from the May 1995 version (First Edition) to the February 2009 version (Second Edition);

• UL 1191, “UL Standard for Safety for Components for Personal Flotation Devices” is updated from the May 1995 version (Second Edition) to the August 2011 version (Fourth Edition); and

• UL 1123, “UL Standard for Safety for Marine Buoyant Devices,” is updated from the February 1995 version (Fifth Edition) to the October 2008 version (Seventh Edition).

These updated versions of the UL Standards include revisions that havebeen evaluated and adopted by UL's STP, the ANSI-accredited Standards Development Organization for these standards, and reflect the industry-wide consensus standard for design, manufacturing, and testing of inflatable PFDs and PFD components. As discussed above in the “Background” section, the Coast Guard participated fully in the development of these standards through its representation on the STP.

UL 1180, “UL Standard for Safety for Fully Inflatable Recreational Personal Flotation Devices,” contains the design, construction, testing, and performance requirements for fully inflatable recreational PFDs for users over 16 years of age and weighing at least 80 pounds. Significant revisions in the Second Edition of UL 1180 from the First Edition include a revision to the temperature cycling test and the addition of testing requirements for an optional buddy line. The revision to the temperature cycle narrows the range of temperature extremes to harmonize with international test methods in the International Organization for Standardization's ISO 12402-9 “Personal flotation devices—Part 9: Test methods.” The additional testing requirements for an optional buddy line provides the test procedures and acceptance criteria for an inflatable PFD equipped with a buddy line. This addition only impacts manufacturers who choose to equip inflatable PFDs with the optional buddy line.

In a response to industry seeking approval for inflatable PFD designs not covered by UL 1180 First Edition, the Second Edition also includes four new supplements containing requirements for user-assisted inflatable PFDs, user-convertible manual/automatic inflatable PFDs, manual inflators without cylinder seal indication, and inflatable work vests. The supplements address design innovations that manufacturers developed after publication of the First Edition.

By incorporating by reference UL 1180 Second Edition with these four new supplements, user-assisted inflatable PFDs, user-convertible manual/automatic inflatable PFDs, manual inflators without cylinder seal indication, and inflatable work vests would be able to be approved under proposed 46 CFR part 160, subpart 160.076 setting forth design and performance standards for these types of inflatable PFDs. Currently, in order to review these design innovations for Coast Guard approval, the Coast Guard has been evaluating each submitted design innovation in accordance with 46 CFR 160.076-16(g)(2) for an equivalent measure of safety to the specific standards in subpart 160.076. Section 160.076-13(g)(2) provides for Coast Guard approval of an inflatable PFD that does not meet the specific standards in subpart 160.076 if the PFD “provides at least the same degree of safety provided by other PFDs that meet the requirements of this subpart.”See also46 CFR 159.005-7(e) (providing for similar “equivalent” approval, not specific to PFDs, for lifesaving equipment that “has equivalent performance characteristics” and “is at least as effective as [equipment] that meets the requirements [in relevant Coast Guard regulations]”). The Coast Guard has been evaluating and approving user-assisted inflatable PFDs, user-convertible manual/automatic inflatable PFDs, manual inflators without cylinder seal indication, and inflatable work vests under 46 CFR 160.076-13(g)(2) because the Coast Guard has determined that they provide at least the same degree of safety that is provided by inflatable PFDs meeting the standards in subpart 160.076. This rulemaking would make this extra evaluation under 46 CFR 160.076-13(g)(2) unnecessary for user-assisted inflatable PFDs, user-convertible manual/automatic inflatable PFDs, manual inflators without cylinder seal indication, and inflatable work vests; these types of PFDs would be reviewed for compliance with the specific standards set forth in the proposed subpart 160.076.

UL 1180 Second Edition also includes the option for the laboratory conducting required performance tests to use youth subjects who fit the necessary size requirements (e.g., weight and chest circumference) in the testing of adult-sized PFDs, where appropriately sized adult subjects are not available. This new option, however, would not affect the Coast Guard approval of inflatable PFDs for use by adults only. Use of youth subjects is limited to performance testing only.

UL 1180 Second Edition also includes editorial changes to correct typos and erroneous internal references. These editorial changes clarify the requirements for the body, primary closure, collar, shoulder, and secondary closure strength tests; revise the format of the labels required by 46 CFR 160.076-39, but do not change the required information; add a definition of “white-water paddling”; move component and material tests from UL 1180 to UL 1191; and renumber the paragraphs in UL 1180. These changes would have no substantive effect on Coast Guard approval of inflatable PFDs.

UL 1191, “UL Standard for Safety for Components for Personal Flotation Devices,” contains the construction, testing, and performance requirements for the materials and components used in the construction of PFDs generally. Several revisions in the Fourth Edition of UL 1191 from the Second Edition are not relevant to this rulemaking because the revisions address only inherently buoyant and hybrid PFDs, not inflatable PFDs. This rulemaking only addresses inflatable PFDs, and incorporating by reference the Fourth Edition into 46 CFR part 160, subpart1 160.076 only incorporates the portions of UL 1191 pertaining to inflatable PFDs.

In the direct final rule, the Coast Guard intended to incorporate the December 2008 version of the Fourth Edition of UL 1911 (including changes through February 27, 2009). One commenter expressed disagreement with a specific revision made to that version of UL 1191, which increased the tolerance for the minimum gross weight of inflation gas cylinders from 10% to 15%. Following publication of the direct final rule, UL 1191 was revised in August 2011 to return this value to 10%. No other changes were made in the August 2011 revision. The Coast Guard proposes to incorporate the most current version of the Fourth Edition of UL 1991, which includes changes through August 2011, and which contains the revision to the tolerance on the minimum gross weight of inflation gas cylinders.

The other most notable substantive changes in UL 1191 Fourth Edition specific to inflatable PFDs are the addition of testing and performance standards for automatic and convertible manual/automatic inflation systems. When the Coast Guard first promulgated 46 CFR part 160, subpart 160.076 in 1995, the only design for an inflatable PFD involved manual activation of the inflation mechanism. Since then, automatic and convertible manual/automatic inflation systems have been developed, and nearly half of the inflatable PFD designs available in the U.S. market utilize automatic inflation. The addition of testing and performance standards for automatic and convertible manual/automatic inflation systems covers the innovative designs created by manufacturers since the Second Edition. As discussed above, the Coast Guard has been approving inflatable PFDs using automatic or convertible manual/automatic inflation systems under 46 CFR 160.076-13(g)(2) because theyprovide at least the same degree of safety provided by inflatable PFDs meeting the standards in 46 CFR part 160, subpart 160.076. By incorporating UL 1191 Fourth Edition, inflatable PFDs using automatic or convertible manual/automatic inflation systems would be approved under the specific standards set forth in proposed subpart 160.076, rather than as equivalent safety devices.

UL 1191 Fourth Edition includes minor substantive changes from the Second Edition that provide greater flexibility to manufacturers in performing required tests or clarify existing requirements. The Fourth Edition eliminates the perchloroethylene exposures during the Operability/Discharge Test because this test was determined not to be representative of the user environment of an inflatable PFD and therefore inapplicable as a safety test. The Fourth Edition also adds Xenon exposure as an optional accelerated weathering method to provide manufacturers another option to choose from for the required weathering tests. The Fourth Edition includes, for the first time, specifications for the water hardness and liquid detergent used for conditioning PFD components and materials to clarify certain test requirements and ensure repeatable test results. The Fourth Edition adds clarifying language to the test procedure for evaluating torsional stiffness of tie tapes.

The Fourth Edition also includes one substantive change to incorporate directly in UL 1191 a portion of the requirements currently contained in subpart 160.076. The Fourth Edition contains the additional marking requirements for inflation systems currently required by 46 CFR 160.067-39(e). Because the Fourth Edition includes the additional marking requirements, these requirements would be deleted from the regulatory text in section 160.067-39(e), as discussed below in the “Conforming Changes” section.

The Fourth Edition also includes editorial changes to correct typos and references to clarify the inflation system discharge test procedure and the maximum crack pressure for the operability test.

UL 1123, “UL Standard for Safety for Marine Buoyant Devices,” contains the design, construction, testing, and performance requirements for inherently buoyant recreational PFDs. The Coast Guard uses this standard in 46 CFR part 160, subpart 160.076 only to define the format and content of the informational pamphlet required by 46 CFR 160.076-35. The only revision in UL 1123 Seventh Edition relevant to inflatable PFDs is the removal of the statement in the standard erroneously indicating a sole publisher of the pamphlet. As such, this revision would have no impact on Coast Guard approval of inflatable PFDs.

Because of the aforementioned proposed updates to the UL Standards incorporated by reference, the Coast Guard proposes to make several conforming changes to the regulatory text to account for the revisions in the newer editions of the UL Standards.

The Coast Guard proposes to remove regulatory text that addresses requirements for inflatable PFDs that are contained in the UL 1180 Second Edition or UL 1191 Fourth Edition. Specifically, the Coast Guard proposes to delete from 46 CFR 160.076-21(b)-(c) and 160.076-25(d)(2)(i)-(iv) the requirements and acceptance criteria for the grab breaking strength, tear strength, seam strength, and permeability tests for inflation chamber materials, which are included in the UL 1191 Fourth Edition. The Coast Guard also proposes to delete the repacking and rearming test from 45 CFR 160.076-25(c) and the requirements for marking inflation mechanisms from 46 CFR 160.076-21(d) and 160.076-39(e) because these provisions are included in the UL 1180 Second Edition. The deletion of this regulatory text would have no substantive effect on the requirements for Coast Guard approval of recreational inflatable PFDs, because the requirements are retained in the updated UL Standards incorporated by reference in revised 46 CFR 160.076-11. Because incorporating a standard by reference is treated as if the requirements of the standards are published in the CFR, retaining this regulatory text would be redundant.

The Coast Guard also proposes to remove standards currently incorporated by reference in subpart 160.076 that would apply through the newer edition of UL 1191. Because these standards would still apply to inflatable PFDs through the UL 1191 Fourth Edition incorporated by reference in subpart 160.076, it would be redundant to retain the standards in subpart 160.076 text. Specifically, the Coast Guard proposes to remove Federal Test Method Standard No. 191A (Federal Standard for Textile Test Methods), American Society for Testing and Materials' ASTM D 751-95 (Standard Test Methods for Coated Fabrics), and ASTM D 1434-82 (Standard Test Method for Determining Gas Permeability Characteristics of Plastic Film and Sheeting), because those standards, or equivalent test methods, are referenced in UL 1191 Fourth Edition.

Finally, for the updated standards, the Coast Guard proposes editorial changes throughout the subpart to resolve references to deleted paragraphs, to update or remove cross-references to specific sections of the UL Standards, and to conform the formatting of incorporated references to currentFederal Registerrequirements.

To prepare for a future rulemaking addressing inflatable PFDs for use by children, the Coast Guard proposes to remove from § 160.076-1 (Scope) the words “approved for use by adults only.” This removal, however, would have no substantive effect on Coast Guard approval of inflatable PFDs because the editions of the UL Standards that would replace the editions currently incorporated by reference in subpart 160.076 still limit the use of inflatable PFDs to persons who are at least 16 years of age and weigh more than 80 pounds. Removing these words would prepare subpart 160.076 for a future rulemaking because, if the Coast Guard decides as part of that future rulemaking to extend the use of inflatable PFDs to children, the Coast Guard anticipates it will do so by again updating the standards incorporated by reference, which would be the only place in subpart 160.076 that contains age and weight limitations after the effective date of this proposed rulemaking.

In response to the direct final rule, one commenter expressed concern that deleting the words “approved for use by adults only” would create a perception that inflatable PFDs for youth would be available on the date the rule went into effect, would facilitate teens using existing inflatable PFDs, and would enable marketing of existing inflatable PFDs to youth. The commenter also expressed concern that this rulemaking is premature in light of work that still needs to be done to evaluate sizing requirements for infant or child PFDs. The Coast Guard seeks comment on this issue.

The Coast Guard also proposes revising § 160.076-19 (Recognized laboratories) to replace the reference to Underwriters Laboratories (UL) as the sole recognized laboratory for testing of inflatable PFDs and PFD components with a reference to the Coast Guard's Marine Information Exchange (CGMIX) Web site, where all Coast Guard-recognized laboratories are listed. When subpart 160.076 was initially published in 1995, UL was, and currently continues to be, the only laboratory recognized by the Coast Guard for approval testing and production oversight of Coast Guard-approved inflatable PFDs under this subpart. However, additional laboratories may be recognized by the Coast Guard to perform these functions. In order to maintain a listing of recognized laboratories outside of the regulatory text consistent with such listings and information for other types of lifesaving equipment, the Coast Guard proposes to replace the list in subpart 160.076 with the reference to where to find the list on the CGMIX.

Material proposed for incorporation by reference appears in proposed 46 CFR 160.076-11. You may inspect this material at U.S. Coast Guard Headquarters where indicated underADDRESSES. Copies of the material are available from the sources listed in paragraph (b) of § 160.076-11.

Before publishing a binding rule, the Coast Guard will submit this material to the Director of the Federal Register for approval of the incorporation by reference.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 14 of these statutes or executive orders.

Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget. A draft regulatory assessment follows:

The Coast Guard does not expect this rulemaking to result in additional costs to industry, as manufacturers of Coast Guard-approved inflatable PFDs already follow the editions of the UL Standards being incorporated by reference into 46 CFR part 160, subpart 160.076 by this rulemaking. The Coast Guard requires approval tests to be performed by an independent laboratory recognized by the Coast Guard under 46 CFR part 159, subpart 159.010. Currently, UL is the only recognized independent laboratory for inflatable PFDs, and UL requires manufacturers to conform to its most current standards, which are the editions being incorporated by reference into subpart 160.076. Additionally, UL offers a certification for recreational inflatable PFDs that conform to UL's most current standards. The UL certification provides a product liability benefit to manufacturers, and obtaining the UL certification has become an industry custom for manufacturers of commercially-sold recreational inflatable PFDs.

As described above, industry is currently following the editions of the UL Standards incorporated by reference into subpart 160.076 in this rulemaking, and PFD manufacturers will adhere to these standards regardless of whether this rule is promulgated. Therefore, this modification to 46 CFR part 160, subpart 160.076 is not expected to impose a burden on industry.

In addition, the Coast Guard does not expect removing the language “approved for use by adults only” in 46 CFR 160.076-1 to have a substantive impact because the Coast Guard will continue approving recreational inflatable PFDs with the current age and weight limitations. As discussed above in the “Discussion of the Rule” section, the age and weight limitations are found in current editions of the UL Standards incorporated in subpart 160.076 and are retained in the newer editions of the UL Standards proposed to be incorporated by reference into subpart 160.076 in this rulemaking. The remaining changes to subpart 160.076 are minor editorial updates. Please see the “Discussion of the Rule” section above for additional details.

The primary benefit of this rulemaking would be the increase in regulatory efficiencies in the maritime community by harmonizing Coast Guard regulations in 46 CFR part 160, subpart 160.076 with current voluntary industry consensus standards. This rulemaking would result in greater consistency between Coast Guard regulations and consensus standards and would reduce burdens on manufacturers who currently have to maintain multiple editions of the UL Standards to comply with Coast Guard regulations, to use UL as an independent laboratory to perform required tests, and to obtain the UL certification. This rulemaking would also result in better compliance with the National Technology Transfer and Advancement Act (NTTAA), which directs agencies to use voluntary consensus standards in their regulatory activities.

Because the rulemaking would harmonize subpart 160.076 with existing UL Standards, any ambiguity associated with inflatable PFD standards would be reduced. Harmonization of these standards is important to fulfill the Coast Guard's mission of establishing minimum safety standards, and procedures and tests required to measure conformance with those standards, for recreational vessels and associated equipment.

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

The Coast Guard expects that this rule would not have an impact on small entities. As described in the “Regulatory Planning and Review” section, we do not expect this rule would result in additional costs to industry. However, this rule would improve efficiency by providing consistency between Coast Guard regulations and UL Standards. Therefore, the Coast Guard certifies that under 5 U.S.C. 605(b), this proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address underADDRESSES. In your comment, explain why you think your business or organization qualifies, as well as how and to what degree this rule will economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they canbetter evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

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

This rule uses the following voluntary consensus standards: UL 1123, “UL Standard for Safety for Marine Buoyant Devices”; UL 1180, “UL Standard for Safety for Fully Inflatable Recreational Personal Flotation Devices”; and UL 1191, “UL Standard for Safety for Components for Personal Flotation Devices.”

Section 608 of the Coast Guard Authorization Act of 2010 (Pub. L. 111-281) adds new section 2118 to 46 U.S.C. Subtitle II (Vessels and Seamen), Chapter 21 (General). New section 2118(a) sets forth requirements for standards established for approved equipment required on vessels subject to 46 U.S.C. Subtitle II (Vessels and Seamen), Part B (Inspection and Regulation of Vessels). Those standards must be “(1) based on performance using the best available technology that is economically achievable; and (2) operationally practical.”See46 U.S.C. 2118(a). This rulemaking addresses inflatable recreational PFDs for Coast Guard approval that are required on vessels subject to 46 U.S.C. Subtitle II, Part B, and the Coast Guard has ensured this rule satisfies the requirements of 46 U.S.C. 2118(a), as necessary.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that does not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. This rule involves personal flotation device standards and falls under regulations concerning safety equipment described in section 6(a) of the “Appendix to National Environmental Policy Act: Coast Guard Procedures for Categorical Exclusions, Notice of Final Agency Policy” (67 FR 48244, July 23, 2002). We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 46 CFR part 160 as follows:

Each year the Commission will publish a list of ten-year old rules for review and comment by interested parties pursuant to the requirements of section 610 of the RFA.

Comment Period Closes:November 28, 2011.

1. Pursuant to the Regulatory Flexibility Act (RFA),see5 U.S.C. 610, the FCC hereby publishes a plan for the review of rules adopted by the agency in calendar year 2000 which have, or might have, a significant economic impact on a substantial number of small entities. The purpose of the review is to determine whether such rules should be continued without change, or should be amended or rescinded, consistent with the stated objective of section 610 of the RFA, to minimize any significant economic impact of such rules upon a substantial number of small entities.

2. This document lists the FCC regulations to be reviewed during the next twelve months. In succeeding years, as here, the Commission will publish a list for the review of regulations promulgated ten years preceding the year of review.

3. In reviewing each rule in a manner consistent with the requirements of section 610 the FCC will consider the following factors:

(a) The continued need for the rule;

(b) The nature of complaints or comments received concerning the rule from the public;

(c) The complexity of the rule;

(d) The extent to which the rule overlaps, duplicates, or conflicts with other federal rules and, to the extent feasible, with state and local governmental rules; and

(e) The length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.

4. Appropriate information has been provided for each rule, including a brief description of the rule and the need for, and legal basis of, the rule. The public is invited to comment on the rules chosen for review by the FCC according to the requirements of section 610 of the RFA. All relevant and timely comments will be considered by the FCC before final action is taken in this proceeding.

Comments may be filed using the Commission's Electronic Comment Filing System (“ECFS”) or by filing paper copies. Comments filed through the ECFS may be sent as an electronic file via the Internet tohttp://www.fcc.gov/cgb/ecfs/.Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket (proceeding) and “DA” number.

Parties may also submit an electronic comment by Internet e-mail. To obtain filing instructions for e-mail comments, commenters should send an e-mail toecfs@fcc.gov,and should include the following words in the body of the message: “get form.” A sample form and directions will be sent in reply. Parties who choose to file by paper must file an original and one copy of each filing. Again, please include the docket (proceeding) and “DA” number.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. Again, please include the docket (proceeding) and “DA” number.

The filing hours at this location are 8 a.m. to 7 p.m.

All hand deliveries must be held together with rubber bands or fasteners.

• Any envelopes must be disposed of before entering the building.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

• U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554.

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

Comments in this proceeding will be available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. They may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-488-5300 or 800-378-3160, facsimile 202-488-5563, or via e-mail atfcc@bcniweb.com.To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail tofcc504@fcc.govor call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

For information on the requirements of the RFA, the public may contact Carolyn Fleming Williams, Senior Deputy Director, Office of Communications Business Opportunities, 202-418-0990 or visithttp://www.fcc.gov/ocbo.

List of rules for review pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 610, for the ten-year period beginning in the year 2000 and ending in the year 2010. All listed rules are in Title 47 of the Code of Federal Regulations.

Brief Description:Section 0.185 of the rules sets forth the responsibilities of the Bureaus and Offices in providing assistance to the Chief, Public Safety and Homeland Security Bureau, in the performance of that person's duties with respect to homeland security, national security, emergency management and preparedness, disaster management, defense, and related activities. Section 0.185(e) requires the head of each Bureau and Office to either serve as Public Safety/Homeland Security Liaison to the Public Safety and Homeland Security Bureau or designate a Deputy Chief of the Bureau or Office to serve as liaison.

Need:This rule ensures that the public safety initiatives of the Public Safety and Homeland Security Bureau will be coordinated efficiently and comprehensively with all the Commission's regulatory activities.

Legal Basis:47 U.S.C. 151, 154(i), 154(j), 155b, 155(c) and 303(r).

Section Number and Title:

0.185(e)—Responsibilities of the bureaus and staff offices.

Brief Description:These rules prescribe the duties that the Commission authorizes to be performed by its various Bureaus and Offices. Section 0.251 delegates authority to the Office of General Counsel. Section 0.251(i) states that the General Counsel may perform all administrative determinations provided for by the Debt Collection Improvement Act of 1996.

Need:This rule allows the efficient resolution of monetary claims of the United States Government that arise from the activities of the Commission.

Legal Basis:31 U.S.C. 3711; 47 U.S.C. 152, 153, 154, 155, 301, 303, 307, 308, 309, 315 and 317.

Section Number and Title:

0.251(i)—Authority delegated [to General Counsel].

Brief Description:The Part 1 rules state the general rules of practice and procedure before the Federal Communications Commission. Subpart Q sets forth the provisions implementing section 309(j) of the Communications Act of 1934, as amended, authorizing the Commission to employ competitive bidding procedures to resolve mutually exclusive applications for certain initial licenses.

Need:These rules are needed to implement the Commission's competitive bidding authority under section 309(j) of the Communications Act of 1934, as amended, including the designated entity and tribal land bidding credit programs.

Legal Basis:47 U.S.C. 151, 154(i), 154(j), 155, 157, 225, 303(r) and 309(j).

Section Number and Title:

1.2107(e)—Submission of down payment and filing of long-form applications.

1.2110(b), (c), (f)(3)—Designated entities.

Brief Description:Part 1 contains rules relating to Commission practices and procedures. Subpart V sets forth the rules by which certain commercial and government-controlled entities report data to the Commission concerning the deployment of advanced telecommunications capability, defined pursuant to 47 U.S.C. 157 as “high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology,” and the deployment of services that are competitive with advanced telecommunications capability.

Need:These rules are needed to implement the Commission's data collection authority with regard to the deployment of advanced telecommunications capabilities pursuant to section 706 of the Telecommunications Act of 1996.

Legal Basis:47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r) and 309.

Section Number and Title:

1.7000—Purpose.

1.7001—Scope and content of filed reports.

1.7002—Frequency of reports.

Brief Description:These rules make following adjustments to the deployment schedule that must be followed by wireless carriers that choose to implement enhanced 911 Phase II service using a handset-based technology. The rules defer the date for initial distribution of Automatic Location Identification (ALI)-capable handsets by seven months, adjust the timetable for carriers to meet certain interim benchmarks for activating new ALI-capable handsets, defer the date by which a carrier must achieve full penetration of ALI-capable handsets until December 31, 2005, modify the manner in which the Commission defines full penetration by adopting a requirement that carriers achieve 95 percent penetration of ALI-capable handsets by the December 31, 2005 date, eliminate the separate handset phase-in schedule triggered by a request from a Public Safety Answering Point, and extend the deadline for carriers to file Phase II enhanced 911 implementation reports.

Need:These rules establish a more practical, understandable, and workable schedule for implementation of handset-based ALI solutions for enhanced 911 Phase II service.

Legal Basis:47 U.S.C. 154, 160, 251-254, 303, and 332 unless otherwise noted.

Section Number and Title:

20.18(g)(1), (g)(2); and 20.18(i)—911 service.

Brief Description:Part 22 contains the rules relating to the Public Mobile Services, specifically, the rules establishing the requirements and conditions under which radio stations may be licensed and used in those services. Subpart H sets forth the rules governing the licensing and operation of cellular radiotelephone systems.

Need:The rule establishes the terms and conditions under which parties in this service can seek and obtain approval for partitioning and/or disaggregation of a license.

Legal Basis:47 U.S.C. 154, 222, 303, 309 and 332.

Section Number and Title:

22.948—Partitioning and disaggregation.

Brief Description:Part 24 contains the rules relating to the Personal Communications Services (PCS), specifically, the rules establishing the requirements and conditions under which radio stations may be licensed and used in those services. Subpart D sets forth the rules governing the licensing and operation of narrowband PCS systems authorized in the 901-902, 930-931, and 940-941 MHz bands (900 MHz band).

Need:The rule establishes the terms and conditions under which parties in this service can seek and obtain approval for partitioning and/or disaggregation of a license.

Legal Basis:47 U.S.C. 154, 301, 302, 303, 309 and 332.

Section Number and Title:

24.104—Partitioning and disaggregation.

Brief Description:Part 24 contains the rules relating to the Personal Communications Services (PCS), specifically, the rules establishing the requirements and conditions under which radio stations may be licensed and used in those services. Subpart F sets forth the rules governing mutually exclusive initial applications for narrowband PCS service licenses, which are subject to competitive bidding.

Need:These rules are needed to implement the Commission's competitive bidding authority under section 309(j) of the Communications Act of 1934, as amended.

Legal Basis:47 U.S.C. 154, 301, 302, 303, 309 and 332.

Section Number and Title:

24.321—Designated entities.

Brief Description:Part 24 contains the rules relating to the Personal Communications Services (PCS), specifically, the rules establishing the requirements and conditions under which radio stations may be licensed and used in those services. Subpart H sets forth the provisions implementing section 309(j) of the Communications Act of 1934, as amended, authorizing the Commission to employ competitive bidding procedures to resolve mutually exclusive applications for initial licenses.

Need:These rules are needed to set forth licensing requirements and to implement the Commission's competitive bidding authority under 47 U.S.C. 309(j).

Legal Basis:47 U.S.C. 151, 154, 155, 157, 225, 301, 302, 303, 309 and 332.

Section Number and Title:

24.709—Eligibility for licenses for frequency Blocks C or F.

Brief Description:Part 24 contains the rules relating to the Personal Communications Services (PCS), specifically, the rules establishing the requirements and conditions under which radio stations may be licensed and used in those services. Subpart I sets forth the rules governing interim applications, licensing, and other procedural rules for broadband PCS.

Need:This rule clarifies that no frequency Block C or Block F won in closed bidding can be assigned or transferred unless the application for assignment or transfer of control is filed on or after the date the initial licensee has notified the Commission that it has met its five-year construction build-out requirement.

Legal Basis:47 U.S.C. 154, 301, 302, 303, 309 and 332.

Section Number and Title:

24.839(a)(6)—Transfer of control or assignment of license.

Brief Description:Part 27 contains the Commission rules relating to miscellaneous wireless communications services (WCS), specifically, the conditions under which spectrum is made available and licensed for the provision of wireless communications services in the 2305-2320 MHz and 2345-2360 MHz; 746-763 MHz, 775-793 MHz, and 805-806 MHz; 698-746 MHz; (4) 1390-1392 MHz; 1392-1395 MHz and 1432-1435 MHz; 1670-1675 MHz; 1710-1755 MHz and 2110-2155 MHz; and 2495-2690 MHz bands. Subpart A sets for the conditions and parameters under which WCS licenses will be authorized.

Need:The rules set forth the availability of certain frequencies and services areas that certain WCS licensees may use.

Legal Basis:47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336 and 337.

Section Number and Title:

27.5(b)—Frequencies.

27.6(b)—Service areas.

Brief Description:Part 27 contains the Commission rules relating to miscellaneous wireless communications services (WCS), specifically, the conditions under which spectrum is made available and licensed for the provision of wireless communications services in the 2305-2320 MHz and 2345-2360 MHz; 746-763 MHz, 775-793 MHz, and 805-806 MHz; 698-746 MHz; (4) 1390-1392 MHz; 1392-1395 MHz and 1432-1435 MHz; 1670-1675 MHz; 1710-1755 MHz and 2110-2155 MHz; and 2495-2690 MHz bands. Subpart B sets forth the terms and conditions under which parties may apply and receive authorization to operate a WCS system.

Need:These rules clarify that an applicant and licensee may provide a variety of services (e.g., common carrier, private internal, broadcast, etc.) within a single authorization, provided the licensee complies with all other applicable Commission rules; they also establish the procedural rules that applicants must follow to obtain Commission authorization for a given WCS service.

Legal Basis:47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336 and 337.

Section Number and Title:

27.10—Regulatory status.

27.11(c)—Initial authorization.

Brief Description:Part 27 contains the Commission rules relating to miscellaneous wireless communications services (WCS), specifically, the conditions under which spectrum is made available and licensed for the provision of wireless communications services in the 2305-2320 MHz and 2345-2360 MHz; 746-763 MHz, 775-793 MHz, and 805-806 MHz; 698-746 MHz; (4) 1390-1392 MHz; 1392-1395 MHz and 1432-1435 MHz; 1670-1675 MHz; 1710-1755 MHz and 2110-2155 MHz; and 2495-2690 MHz bands. Subpart C sets forth the various technical standards with which a WCS licensee must comply.

Need:These rules set forth emission limitations for WCS licensees in various bands; establish standards such that WCS licensees will not harmfully interfere with television or DTV broadcasting; and establish procedures and consequences for when a WCS licensee, either voluntarily or involuntarily, discontinues operations.

Legal Basis:47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336 and 337.

Section Number and Title:

27.53(c), (d), (e)—Emission limits.

27.60—TV/DTV interference protection criteria.

27.66—Discontinuance, reduction, or impairment of service.

Brief Description:Part 27 contains the Commission rules relating to miscellaneous wireless communications services (WCS), specifically, the conditions under which spectrum is made available and licensed for the provision of wireless communications services in the 2305-2320 MHz and 2345-2360 MHz; 746-763 MHz, 775-793 MHz, and 805-806 MHz; 698-746 MHz; (4) 1390-1392 MHz; 1392-1395 MHz and 1432-1435 MHz; 1670-1675 MHz; 1710-1755 MHz and 2110-2155 MHz; and 2495-2690 MHz bands. Subpart F sets forth the rules by which mutually exclusive applications in the 698-806 MHz band will be considered.

Need:These rules implement the Commission's competitive bidding authority under 47 U.S.C. 309(j) for initial applications in the 698-806 MHz bands.

Legal Basis:47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336 and 337.

Section Number and Title:

27.501—746-763 MHz, 775-793 MHz, and 805-806 MHz bands subject to competitive bidding.

27.502—Designated entities.

Brief Description:Part 27 contains the Commission rules relating to miscellaneous wireless communications services (WCS), specifically, the conditions under which spectrum is made available and licensed for the provision of wireless communications services in the 2305-2320 MHz and 2345-2360 MHz; 746-763 MHz, 775-793 MHz, and 805-806 MHz; 698-746 MHz; (4) 1390-1392 MHz; 1392-1395 MHz and 1432-1435 MHz; 1670-1675 MHz; 1710-1755 MHz and 2110-2155 MHz; and 2495-2690 MHz bands. Subpart G sets forth the rules under which guard band A and B block licensees may operate.

Need:These rules establish the procedural parameters under which a guard band A and B block licensee may receive an authorization and operate, including the requirements should such a licensee lease a portion of its spectrum.

Legal Basis:47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336 and 337.

Section Number and Title:

27.601—Authority and coordination requirements.

27.602—Lease agreements.

27.604—Limitation on licenses won at auction.

27.607—Performance requirements and annual reporting requirement.

Brief Description:This subsection generally implements section 251(c) of the Communications Act of 1934, as amended. Section 51.230 provides that advanced services loop technologies are presumed acceptable for deployment under specific circumstances. It further provides that incumbent local exchange carriers cannot deny a carrier's request to deploy a technology that is presumed acceptable for deployment without first demonstrating to the relevant state commission that deployment of that technology would significantly degrade performance of other advanced services or traditional voiceband services. Finally, a carrier seeking to establish that the deployment of a specific technology falls within the presumption of acceptability bears the burden of demonstrating to the relevant state commission that its proposed deployment meets the threshold for a presumption of acceptability and will not, in fact, significantly degrade performance of other advanced services or traditional voice band services.

Need:These rules are necessary to foster a competitive market in the telecommunications industry, and to promote the deployment of broadband infrastructure and other network investment. These rules also ensure that competitors receive prompt and accurate notice of changes that could affect their ability to interconnect with the incumbent's network.

Legal Basis:47 U.S.C. 251(a), 251(c)(2) and (6) and 251(d).

Section Number and Title:

51.230—Presumption of acceptability for deployment of an advanced services loop technology.

Brief Description:This subsection generally implements section 251(c) of the Communications Act of 1934, as amended. Section 51.231 provides that incumbent local exchange carriers must provide particular information to carriers requesting access to a loop or high-frequency portion of the loop to provide advanced services. The requesting carrier must provide to the incumbent LEC information on the type of technology the carrier seeks to deploy, both at the time it seeks access to a loop or high frequency portion of a loop to provide advanced services and when notifying the incumbent LEC of any proposed change in the advanced services technology that the carrier uses on the loop.

Need:These rules are necessary to foster a competitive market in the telecommunications industry, and to promote the deployment of broadband infrastructure and other network investment. These rules also ensure that competitors receive prompt and accurate notice of changes that could affect their ability to interconnect with the incumbent's network.

Legal Basis:47 U.S.C. 251(a), 251(c)(2) and (6) and 251(d).

Section Number and Title:

51.231—Provision of information on advanced services deployment.

Brief Description:This subsection generally implements section 251(c) of the Communications Act of 1934, as amended. Section 51.232 prohibits incumbent local exchange carriers from designating, segregating or reserving particular loops or binder groups for use solely by any particular advanced services loop technology, except for loops on which a known disturber is deployed. The rule also specifies that any party seeking designation as a known disturber should file a petition for declaratory ruling with the Commission.

Need:These rules are necessary to foster a competitive market in the telecommunications industry, and to promote the deployment of broadband infrastructure and other network investment. These rules also ensure that competitors receive prompt and accurate notice of changes that could affect their ability to interconnect with the incumbent's network.

Legal Basis:47 U.S.C. 251(a), 251(c)(2) and (6) and 251(d).

Section Number and Title:

51.232—Binder group management.

Brief Description:This subsection generally implements section 251(c) of the Communications Act of 1934, as amended. Section 51.233 sets forth the steps that must be taken by a carrier claiming that a deployed advanced service is significantly degrading the performance of other advanced services, including notifying the deploying carrier and allowing that carrier a reasonable opportunity to correct the problem. The rule provides that, where a carrier demonstrates that a deployed technology is significantly degrading the performance of other advanced services or traditional voice-band services, the deploying carrier must discontinue deployment of that technology and migrate its customers to technologies that will not significantly degrade the performance of other such services. The rule further specifies that, if the asserted degradation goes unresolved, the carrier whose services are being degraded must make a showing of degradation before the relevant state commission.

Need:These rules are necessary to foster a competitive market in thetelecommunications industry, and to promote the deployment of broadband infrastructure and other network investment. These rules also ensure that competitors receive prompt and accurate notice of changes that could affect their ability to interconnect with the incumbent's network.

Legal Basis:47 U.S.C. 251(a), 251(c)(2) and (6) and 251(d).

Section Number and Title:

51.233—Significant degradation of services caused by deployment of advanced services.

Brief Description:This subsection implements section 251(c) of the Communications Act of 1934, as amended. Section 51.323(l) sets forth deadlines within which an incumbent LEC must offer to provide, and provide, all forms of physical collocation, except in circumstances where a state sets its own deadlines or the incumbent LEC has demonstrated to the state commission that physical collocation is not practical for technical reasons or because of space limitations.

Need:These rules are necessary to foster a competitive market in the telecommunications industry, and to promote the deployment of broadband infrastructure and other network investment. They help ensure that competitors are able to collocate incumbent LEC premises in a timely manner, in accordance with section 251(c)(6) of the Communications Act.

Legal Basis:47 U.S.C. 251(c)(6).

Section Number and Title:

51.323(l)—Standards for physical collocation and virtual collocation.

Brief Description:These subsections generally implement section 251(b)(5) of the Communications Act of 1934, as amended. Sections 51.605(c) through (e) help define which incumbent LEC services are subject to the resale obligations in section 251(b)(5) and other Commission rules. These rules exempt from the scope of that resale obligation exchange-access services (except to the extent that they are advanced telecommunications services that are sold on a retail basis to residential and business end-users that are not telecommunications carriers) and advanced telecommunications services sold to ISPs as an input component to the ISPs' retail Internet service offerings. These rules also prohibit the incumbent LEC from placing restrictions on the resale of such services in certain circumstances.

Need:These rules are necessary to ensure that the incumbent LECs and their competitors understand the scope of the incumbent LECs resale obligations under section 251(b)(5).

Legal Basis:47 U.S.C. 251(b)(5).

Section Number and Title:

51.605(c) through (e)—Additional obligations of incumbent local exchange carriers.

Brief Description:Section 52.5(i) sets forth the definition of “service provider” as used in the Commission's rules governing numbering.

Need:This rule is necessary to allow the Commission to monitor closely the way numbering resources are used within the North American Numbering Plan (“NANP”).

Legal Basis:47 U.S.C. 201-205 and 251.

Section Number and Title:

52.5(i)—Definitions.

Brief Description:Section 52.7(g) through (j) sets forth definitions of terms used in the Commission's rules governing thousands-block pooling.

Need:This rule is necessary to allow the Commission to monitor closely the way numbering resources are used within the NANP.

Legal Basis:47 U.S.C. 201-205 and 251.

Section Number and Title:

52.7(g) through (j)—Definitions.

Brief Description:Section 52.15(f) through (j) sets forth a mandatory data reporting requirement, a uniform set of categories of numbers for which carriers must report their utilization, requirements for applications for numbering resources, a utilization threshold framework to increase carrier accountability and incentives to use numbers efficiently, and procedures for reclamation of numbering resources.

Need:This rule is necessary to allow the Commission to monitor closely the way numbering resources are used within the NANP.

Legal Basis:47 U.S.C. 201-205 and 251.

Section Number and Title:

52.15(f) through (j)—Central office code administration.

Brief Description:Section 52.20 specifies that all carriers capable of providing local number portability must participate in thousands-block number pooling where it is implemented and consistent with the national thousands-block number pooling framework established by the Commission. The rule requires that all carriers required to participate in thousands-block number pooling must donate thousands-blocks with less than ten percent contamination to the thousands-block number pool for the rate center within which the numbering resources are assigned. However, the rule permits those service providers to maintain at least one thousands-block per rate center, even if less than ten percent contaminated, as an initial block or footprint block. Telephone numbers assigned to customers of service providers from donated thousands-blocks that are contaminated will be ported back to the donating service provider. Finally, the rule provides for a Thousands-Block Pooling Administrator.

Need:This rule is necessary to address and resolve one of the major factors that contributes to numbering resource exhaust: The allocation of numbers in blocks of 10,000, irrespective of the carrier's actual need for new numbers.

Legal Basis:47 U.S.C. 201-205 and 251.

Section Number and Title:

52.20—Thousands-block number pooling.

Brief Description:These rules specify the requirements for the high-cost support mechanism. These rules provide requirements for how high-cost support will be calculated and distributed to eligible telecommunications providers.

Need:In implementing statutory requirements for the high-cost program of the universal service support mechanism, these rules ensure that rates in rural, insular and high-cost areas are “reasonably comparable” to rates charged for similar services in urban areas.

Legal Basis:47 U.S.C. 254(b).

Section Numbers and Title:

54.311(d)—Interim hold-harmless support for non-rural carriers.

Brief Description:These rules specify the requirements for the support mechanism for low-income consumers. These rules provide the eligibility requirements for low-income consumers receiving discounted rates for services under the Lifeline and Link-up programs and the requirements for howreimbursements for low-income support will be calculated and distributed to eligible telecommunications providers.

Need:In implementing statutory requirements for the low-income program of the universal service support mechanism, these rules ensure that low-income consumers, including eligible residents of Tribal lands, have access to quality services at just, reasonable, and affordable rates.

Legal Basis:47 U.S.C. 151, 154(i), 201, 205 and 254(b).

Section Numbers and Titles:

54.400(e)—Terms and definitions.

54.403(a)(4)—Lifeline support amount.

54.409(c)—Consumer qualification for Lifeline.

54.411(d)—Link-Up program defined.

Brief Description:These rules provide requirements for the calculation and distribution of support to price-cap carriers as implicit universal service subsidies are removed from their interstate-access rates.

Need:In implementing the statutory requirements, these rules ensure that the universal service interstate-access support mechanism is specific, predictable and sufficient as it moves from implicit to explicit subsidies.

Legal Basis:47 U.S.C. 151, 154(i), 154(j), 201-209, 218-222, 254 and 403.

Section Numbers and Titles:

54.800—Terms and definitions.

54.801—General.

54.802—Obligations of local exchange carriers and the Administrator.

54.803—Universal service zones.

54.804—Preliminary minimum access universal service support for a study area calculated by the Administrator.

54.805—Zone and study area above benchmark revenues calculated by the Administrator.

54.806—Calculation by the Administrator of interstate access universal service support for areas served by price cap local exchange carriers.

54.807—Interstate access universal service support.

54.808—Transition provisions and periodic calculation.

54.809—Carrier certification.

Brief Description:The Part 61 rules are designed to implement the provisions of sections 201, 202, 203, and 204 of the Communications Act of 1934, as amended, and help ensure that rates are just, reasonable, and not unjustly or unreasonably discriminatory. These rules govern the filing, form, content, public-notice periods, and accompanying support materials for tariffs. Section 61.3 sets out definitions for terms used in this Part.

Need:Sections 61.3 (qq) through (zz) were adopted to define terms used elsewhere in the Commission's tariff regulations applicable to interstate, domestic, interexchange services.

Legal Basis:47 U.S.C. 151, 154(i), 154(j), 201-205 and 403.

Section Number and Title:

61.3(qq) through (zz)—Definitions.

Brief Description:The Part 61 rules are designed to implement the provisions of sections 201, 202, 203, and 204 of the Communications Act of 1934, as amended, and help ensure that rates are just, reasonable, and not unjustly or unreasonably discriminatory. These rules govern the filing, form, content, public notice periods, and accompanying support materials for tariffs. Section 61.42 identifies which services carriers are to include in their price cap baskets. These price-cap baskets are then used, among other things, in determining price-cap indices and price cap regulation generally.

Need:Section 61.42(e)(3) was adopted to specify to carriers what service categories and subcategories they must include in their Actual Price Index (API) for the special access services basket. The API is used in connection with any price-cap tariff filing proposing rate changes.

Legal Basis:47 U.S.C. 151, 154(i), 154(j), 201-205 and 403.

Section Number and Title:

61.42(e)(3)—Price cap baskets and service categories.

Brief Description:Section 64.402 specifies that commercial mobile radio service providers that elect to provide priority access service to National Security and Emergency Preparedness personnel must adhere to uniform operating protocols.

Need:These provisions are necessary to implement the Commission's responsibility to provide, in the most efficient manner, access to communications infrastructures in order to respond effectively to emergency and disaster situations.

Legal Basis:47 U.S.C. 202, 205, 302 and 303.

Section Number and Title:

64.402—Policies and procedures for the provision of priority access service by commercial mobile radio service providers.

Brief Description:Part 68, Subpart C, sets forth the rules under which terminal equipment is approved and associated inside (or “premises”) wiring may be connected to the public telephone network. Section 68.213, in particular, establishes rules for “unprotected” premises wiring in simple installations of up to four-line telephone service. The rules authorize premises owners or customers to install and/or maintain wiring on the customer side of the demarcation point, provided that conditions set forth in the rules are met. The rules also establish material requirements for wire and connectors used in such installations, including electrical and labeling requirements.

Need:These rules provide uniform standards to protect the public telephone network from harms caused by terminal equipment and the associated wiring thereto, and ensure that consumer utility of traditional voiceband and advanced services will not be hampered by poor quality inside wiring, while enabling terminal equipment and premises wiring to be provided competitively.

Legal Basis:47 U.S.C. 151, 154(i), 151(j), 161, 201-205 and 218, 220, 256, 405, and 5 U.S.C. sections 552 and 553.

Section Number and Title:

68.213(c)—Installation of other than “fully protected” non-system simple customer premises wiring.

Brief Description:The Part 69 rules are designed to implement the provisions of sections 201 and 202 of the Communications Act of 1934, as amended, and protect consumers by preventing the exercise of market power by incumbent LECs. These rules help ensure that rates are just, reasonable, and not unjustly or unreasonably discriminatory. Specifically, § 69.158 facilitates the phase out of implicit subsidies in the access charge regime by making the recovery of LEC universal service charges from end users explicit.

Need:Section 69.158 allows for the LECs' recovery of charges for an explicit, portable interstate access universal service support mechanism.

Legal Basis:47 U.S.C. 154, 201-203, 205, 218, 220, 254 and 403.

Section Number and Title:

69.15—Universal service end user charges.

Brief Description:This rule identifies Part G as the part of the rules which establish protection standards for full-power stations from the operations of LPFM stations.

Need:This rule clarifies the structure of the FM interference protection scheme.

Legal Basis:47 U.S.C. 154 and 303.

Section Number and Title:

73.209(c)—Protection from interference.

Brief Description:This rule sets forth a transition rule for stations previously licensed under more permissive Class C antenna height and power requirements.

Need:This rule is needed to provide a basis for a certain class of stations to retain their rights as Class C stations.

Legal Basis:47 U.S.C. 154 and 303.

Section Number and Title:

73.211(d)—Power and antenna height requirements.

Brief Description:This rule identifies Part K as the part of the rules which set forth the procedures for choosing among mutually exclusive applications for noncommercial educational FM stations.

Need:This rule clarifies the structure of the noncommercial educational FM licensing rules.

Legal Basis:47 U.S.C. 154 and 303.

Section Number and Title:

73.503(e)—Licensing requirements and service.

Brief Description:This rule identifies Part I as the part of the rules which set forth the procedures for choosing among mutually exclusive applications in circumstances in which at least one commercial FM application is mutually exclusive with at least one noncommercial educational FM application.

Need:This rule clarifies the structure of the commercial and noncommercial educational FM licensing rules.

Legal Basis:47 U.S.C. 154, 303 and 309.

Section Number and Title:

73.513(b)—Noncommercial educational FM stations operating on unreserved channels.

Brief Description:This rule identifies Part G as the part of the rules which establish protection standards for noncommercial educational full-power stations from the operations of LPFM stations.

Need:This rule clarifies the structure of the FM interference protection scheme.

Legal Basis:47 U.S.C. 154 and 303.

Section Number and Title:

73.514—Protection from interference.

Brief Description:This rule sets forth community of license signal coverage requirements for noncommercial educational FM stations.

Need:This rule is necessary to ensure that every noncommercial educational station provides an adequate strength signal to its community of license.

Legal Basis:47 U.S.C. 154, 303 and 307.

Section Number and Title:

73.515—NCE FM transmitter location.

Brief Description:This rule provides the criteria that an applicant for a new full power television station or modification to existing full power television station must meet in order to protect a Class A television station.

Need:Protection criteria is necessary to protect the operations of Class A television stations and to ensure that new or modified full power television station operate without creating harmful interference.

Legal Basis:47 U.S.C. 154, 303, 334 and 336.

Section Number and Title:

73.613—Protection of Class A TV stations.

Brief Description:This rule specifies that mutually exclusive applications for noncommercial educational TV stations operating on reserved channels shall be resolved pursuant to the point system.

Need:The point system is needed to continue to foster the growth of noncommercial broadcasting. The point system clearly expresses the public interest factors that the Commission finds important in noncommercial educational broadcasters and selects the applicant who best exemplifies those criteria in an objective manner.

Legal Basis:47 U.S.C. 154, 303, 334 and 336.

Section Number and Title:

73.621(h)—Noncommercial educational TV stations.

Brief Description:This rule specifies that DTV station applications proposing to expand the DTV station's authorized service area must not cause interference to a Class A TV station or a digital Class A TV Station.

Need:This rule is required because Class A licensees have “primary” status as television broadcasters; thereby they have a measure of protection from full-service DTV television stations.

Legal Basis:47 U.S.C. 154, 303, 334 and 336.

Section Number and Title:

73.623(c)(5), (d) and (e)—DTV applications and changes to DTV allotments.

Brief Description:This rule sets forth complaint and license modification procedures for LPFM stations causing interference to full-power stations operating on third adjacent channels.

Need:The Local Community Radio Act, enacted on January 4, 2011, requires the Commission to modify its rules to eliminate third-adjacent minimum distance separation requirements between LPFM stations and FM, FM translator, and FM booster stations. The Commission will initiate a rulemaking in 2011 to conform this rule to the new legislation.

Legal Basis:47 U.S.C. 154, 303 and 316.

Section Number and Title:

73.810—Third adjacent channel complaint and license modification procedure.

Brief Description:This rule sets forth complaint procedures in circumstances in which an LPFM station causes interference to the input signal of an FM translator or FM booster station.

Need:The Local Community Radio Act changed the distance separation requirements between LPFM stations and FM translators and FM booster stations. The Commission will initiate a rulemaking in 2011 to conform these complaint procedures to the new legislation.

Legal Basis:47 U.S.C. 154, 303 and 316.

Section Number and Title:

73.827—Interference to the input signals of FM translator or FM booster stations.

Brief Description:This rule requires each broadcast station to maintain a local or toll-free telephone number in its community of license.

Need:This rule is necessary to promote the localism goals on which the main studio rule is based.

Legal Basis:47 U.S.C. 154, 303 and 307.

Section Number and Title:

73.1125(e)—Station main studio location.

Brief Description:This rule identifies part K as the part of the rules which sets forth restrictions on the assignment ortransfer of licenses awarded pursuant to noncommercial educational comparative procedures.

Need:This rule is unnecessary. The applicability of the part K rules and their requirements are clearly set forth therein.

Legal Basis:47 U.S.C. 154, 303 and 309.

Section Number and Title:

73.1150(d)—Transferring a station.

Brief Description:This rule provides the maximum level that may be exceeded by the carrier frequency of a station in the Class A Television Service.

Need:This rule is necessary so that parties seeking to construct stations in the Class A Television Service may specify their proposed facilities and the Commission staff review such facilities before granting a construction permit.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.1545(e)—Carrier frequency departure tolerances.

Brief Description:This rule sets forth the procedures for LPFM stations to operate pursuant to program test authority.

Need:This rule is necessary to permit the prompt initiation of authorized new service from LPFM stations.

Legal Basis:47 U.S.C. 154 and 303.

Section Number and Title:

73.1620(a)(5)—Program tests.

Brief Description:This rule sets forth the minimum number of hours that stations in the Class A Television Service must operate each week.

Need:This rule is necessary so that stations in the Class A Television Service continue to fully utilize their assigned channel and to serve the public interest.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.1740(a)(5)—Minimum operating schedule.

Brief Description:This rule provides that stations in the Class A Television Service must maintain documentation in their local public inspection file as to their Class A TV continuing eligibility.

Need:This rule is necessary so that stations are able to demonstrate that they continue to be eligible for Class A TV status and so that the public and Commission staff can verify their claimed eligibility.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.3526(e)(17)—Local public inspection file of commercial stations.

Brief Description:This rule provides that stations in the Class A Television Service must give notice of the filing of an application for license.

Need:This rule is necessary so that the public is made aware of the filing of an application for license by a station in the Class A Television Service and the procedures for commenting on such application.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.3580(d)(5)—Local public notice of filing of broadcast applications.

Brief Description:This rule sets forth the procedures for filing petitions to deny requests for the involuntary downgrading of Class C FM stations to Class C0.

Need:This rule is necessary to clarify the pleading procedures that apply in circumstances in which an application is filed which is mutually exclusive with an authorized Class C station operating at less than full Class C antenna height and/or power minimum requirements.

Legal Basis:47 U.S.C. 154 and 303.

Section Number and Title:

73.3584(d)—Procedure for filing petitions to deny.

Brief Description:This rule provides the definitions that will be used throughout subpart J of 47 CFR part 73.

Need:Certain terms need to be defined so as to make clear their usage in subpart J of 47 CFR Part 73 and to avoid having to restate their definition each time they are used.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6000—Definitions.

Brief Description:This rule provides the procedures that applicants seeking new facilities in the Class A Television Service must follow to obtain a construction permit for such facilities and the required types of service they must provide in order to retain their Class A status.

Need:These procedures and policies are necessary in order that applicants for new Class A Television Service may specify their proposed facilities and the Commission staff review such facilities before granting a construction permit.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6001—Eligibility and service requirements.

Brief Description:This rule provides the requirements that applicants seeking new facilities in the Class A Television Service must meet in order to obtain a station in this service.

Need:It is necessary to set out the qualifications for Class A television stations so that applicants for these facilities can make a demonstration of eligibility in their applications and Commission staff can review their qualifications prior to granting a construction permit.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6002—Licensing requirements.

Brief Description:This rule provides the channels that are not available to applicants for Class A television stations.

Need:A list of channels that are not available for Class A television stations is necessary so that applicants in this service may decide the best operational channel for their new facility.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6006—Channel assignments.

Brief Description:This rule provides the power limitations for applicants seeking Class A television stations.

Need:This rule is necessary so that applicants for Class A television stations don't specify too great an operational power and so applicants may decide the best operational parameters for their new facility.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6007—Power limitations.

Brief Description:This rule provides the method for applicants seeking Class A television stations to make distance computations between two reference points.

Need:This rule is necessary so that applicants for Class A television stations are able to correctly calculate the distance between two reference points in their applications and to properly configure the operational parameters for their new facility.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6008—Distance computations.

Brief Description:This rule outlines the operational area of a Class A television station that must be protected from harmful interference by other broadcast stations.

Need:This rule is necessary so that applicants for broadcast facilities will know that operational area or “contour” of a Class A television station that must be protected from harmful interference so that such applicants are able to properly configure the operational parameters for their new facility.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6010—Class A TV station protected contour.

Brief Description:This rule outlines those full power television stations that Class A television stations must protect from harmful interference.

Need:This rule is necessary so that applicants for Class A television stations will be able to determine which full power television stations they must protect from harmful interference so that such applicants are able to properlyconfigure the operational parameters of their new facility.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6011—Protection of TV broadcast stations.

Brief Description:This rule outlines those Class A television, low power television and TV translator stations that a Class A television station seeking to modify its facilities must protect from harmful interference.

Need:This rule is necessary so that applicants for modification to a Class A television station will be able to determine which broadcast stations they must protect from harmful interference so that such applicants are able to properly configure the operational parameters of their new facility.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6012—Protection of Class A TV, low power TV and TV translator stations.

Brief Description:This rule outlines those full power digital television stations that a Class A television station seeking to modify its facilities must protect from harmful interference.

Need:This rule is necessary so that applicants for modification to a Class A television station will be able to determine which full power digital television stations they must protect from harmful interference so that such applicants are able to properly configure the operational parameters of their new facility.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6013—Protection of DTV stations.

Brief Description:This rule outlines those Class A digital television stations that a Class A television station seeking to modify its facilities must protect from harmful interference.

Need:This rule is necessary so that applicants for modification to a Class A television station will be able to determine which Class A digital television stations they must protect from harmful interference so that such applicants are able to properly configure the operational parameters of their new facility.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6014—Protection of digital Class A TV stations.

Brief Description:This rule outlines those full power television stations that a digital Class A television station seeking to modify its facilities must protect from harmful interference.

Need:This rule is necessary so that applicants for modification to a digital Class A television station will be able to determine which full power television stations they must protect from harmful interference so that such applicants are able to properly configure the operational parameters of their new facility.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6016—Digital Class A TV station protection of TV broadcast stations.

Brief Description:This rule outlines those Class A television and digital Class A television stations that a digital Class A television station seeking to modify its facilities must protect from harmful interference.

Need:This rule is necessary so that applicants for modification to a digital Class A television station will be able to determine which Class A and digital Class A television stations they must protect from harmful interference so that such applicants are able to properly configure the operational parameters of their new facility.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6017—Digital Class A TV station protection of Class A TV and digitalClass A TV stations.

Brief Description:This rule outlines those full power digital television stations that a digital Class A television station seeking to modify its facilities must protect from harmful interference.

Need:This rule is necessary so that applicants for modification to a digital Class A television station will be able to determine which full power digital television stations they must protect from harmful interference so that such applicants are able to properly configure the operational parameters of their new facility.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6018—Digital Class A TV station protection of DTV stations.

Brief Description:This rule outlines those low power television, TV translator, digital low power television and digital TV translator stations that a digital Class A television station seeking to modify its facilities must protect from harmful interference.

Need:This rule is necessary so that applicants for modification to a digital Class A television station will be able to determine which low power television, TV translator, digital low power television and digital TV translator stations they must protect from harmful interference so that such applicants are able to properly configure the operational parameters of their new facility.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6019—Digital Class A TV station protection of low power TV, TVtranslator, digital low power TV and digital TV translatorstations.

Brief Description:This rule outlines those stations in the land mobile radio service that a digital Class A television station seeking to modify its facilities must protect from harmful interference.

Need:This rule is necessary so that applicants for modification to a digital Class A television station will be able to determine which stations in the land mobile radio service they must protect from harmful interference so that such applicants are able to properly configure the operational parameters of their new facility.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6020—Protection of stations in the land mobile radio service.

Brief Description:This rule provides that Class A television stations may negotiate interference agreements with full power television, digital full power television, low power television, TV translator and other Class A television stations.

Need:This rule is necessary so that Class A television stations will know the parameters by which they may negotiate interference agreements so that Class A television stations are able to properly configure the operational parameters of their facilities.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6022—Negotiated interference and relocation agreements.

Brief Description:This rule provides that Class A television stations may operate distributed transmission systems.

Need:This rule is necessary so that Class A television stations understand that they may operate distributed transmission systems in order to properly configure the operational parameters of their facilities.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6023—Distributed transmission systems.

Brief Description:This rule provides the transmission standards and system requirements that Class A television stations must follow.

Need:This rule is necessary so that Class A television stations understand how they may operate their stations in order to properly configure the operational parameters of their facilities.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6024—Transmission standards and system requirements.

Brief Description:This rule provides the standards that must be followed by Class A television stations when designing their antenna systems and their locations.

Need:This rule is necessary so that Class A television stations understand how to design their antenna systems and where to locate their antennas in order to properly configure the operational parameters of their facilities.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6025—Antenna system and station location.

Brief Description:This rule provides all of the broadcast regulations applicable to other stations in the broadcast services that are also applicable to Class A television stations.

Need:This rule is necessary so that Class A television stations understand which broadcast regulations they are required to follow.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6026—Broadcast regulations applicable to Class A television stations.

Brief Description:This rule provides all applicants for new or modified Class A television stations must provide certain notifications to radio astronomy, research and receiving installations.

Need:This rule is necessary so that applicants for Class A television stations understand which radio astronomy, research and receiving installations they must notify in order to prevent harmful interference to such facilities.

Legal Basis:47 U.S.C. 336(f).

Section Number and Title:

73.6027—Class A TV notifications concerning interference to radio astronomy, research and receiving installations.

Brief Description:Subpart D contains rules and licensing requirements applicable to Remote Pickup Broadcast Stations.

Need:The revised rule makes licensees of low power FM stations eligible to hold licenses for remote pickup broadcast stations.

Legal Basis:47 U.S.C. 154, 303, 307, 336(f), 336(h) and 554.

Section Number and Title:

74.432—Licensing requirements and procedures.

Brief Description:Subpart E contains rules and licensing requirements applicable to Aural Broadcast Auxiliary Stations.

Need:The revised rules make licensees of low power FM stations eligible to hold licenses for aural broadcast auxiliary stations and updates frequency assignments to reflect the reallocation of frequencies in the 18 GHz band to the Fixed Satellite Service and the grandfathering of existing facilities.

Legal Basis:47 U.S.C. 154, 303, 307, 336(f), 336(h) and 554.

Section Number and Title:

74.502—Frequency assignment.

74.532—Licensing requirements.

74.551—Equipment changes.

Brief Description:Subpart F contains rules and licensing requirements applicable to Television Broadcast Auxiliary Stations.

Need:The revised rules make Class A TV stations eligible to hold licenses for Television Broadcast Auxiliary Stations, required Mobile-Satellite Service (MSS) licensees in the reallocated 1990-2025 MHz and 2165-2200 MHz bands to bear the cost of relocating Broadcast Auxiliary Service licensees in the 1990-2110 MHz band, and updates frequency assignments to reflect the reallocation of frequencies in the 18 GHz band to the Fixed Satellite Service and the grandfathering of existing facilities.

Legal Basis:47 U.S.C. 154, 303, 307, 336(f), 336(h) and 554.

Section Number and Title:

74.600—Eligibility for license.

74.601—Classes of TV broadcast auxiliary stations.

74.602—Frequency assignment.

74.638—Frequency coordination.

74.651—Equipment changes.

74.690—Transition of the 1990-2025 MHz band from the Broadcast Auxiliary Service to emerging technologies.

Brief Description:This rule provides the criteria that an applicant for a new low power television, TV translator or TV booster station or modification to same must meet in order to protect a Class A television station.

Need:Protection criteria is necessary to protect the operations of Class A television stations and to ensure that new or modified low power television, TV translator and TV booster stations operate without creating harmful interference.

Legal Basis:47 U.S.C. 154, 303, 334 and 336.

Section Number and Title:

74.708—Class A TV and digital Class A TV station protection.

Brief Description:These rules specify the procedures to be used in negotiation of retransmission consent agreements between multichannel video programmers (MVPDs) and broadcast stations under which the MVPDs are permitted to transmit the programming of those broadcast stations.

Need:The rules require that parties negotiate in good faith and establish time limits for complaints in order to ensure that retransmission of broadcast programming may be accomplished.

Legal Basis:47 U.S.C. 325(b)(3)(C).

Section Number and Title:

76.65—Good faith and exclusive retransmission consent complaints.

Brief Description:These rules require that multichannel video programming distributors (MVPDs) provide equal opportunity in employment and that MVPDs analyze on an ongoing basis their efforts to recruit, hire, promote and use services without discrimination.

Need:This requirement helps to ensure that MVPDs provide equal opportunity in employment.

Legal Basis:47 U.S.C. 554.

Section Number and Title:

76.75(g)—Specific EEO program requirements.

Brief Description:These rules require that equal opportunity in employment be afforded by multichannel video programming distributors (MVPDs) to all qualified persons and no person shall be discriminated against in employment. The Commission may issue appropriate sanctions for violation of EEO rules.

Need:Enforcement of the EEO rules is required to ensure compliance.

Legal Basis:47 U.S.C. 634.

Section Number and Title:

76.77(f)—Reporting requirements and enforcement.

Brief Description:These rules establish limits for ownership, control, and operation of a cable operator by another cable operator, and more specifically, limits on carriage of vertically integrated programming and related recordkeeping requirements.

Need:Recordkeeping requirements referenced in this rule are needed to ensure that cable operators document the nature and extent of their attributable interests in all video programming services.

Legal Basis:47 U.S.C. 533(f).

Section Number and Title:

76.504—Limits on carriage of vertically integrated programming.

Brief Description:Cable operators shall be responsible for ensuring that their systems are designed, installed, and operated in a manner that complies with the technical standards of this subpart and shall ensure that their systems are compatible with commercially available consumer electronics equipment.

Need:These rules are required to ensure that cable systems do not scramble the basic tier of programming service and permit the operation of commercially available remote control customer premises equipment.

Legal Basis:47 U.S.C. 549.

Section Number and Title:

76.630—Compatibility with consumer electronics equipment.

Brief Description:These rules define the obligations of cable operators subject to rate regulation, in particular the limits imposed on cable operators' ability to charge subscribers for changes in subscriber services.

Need:The statute requires adoption of rate regulations and imposes limits on charges that cable operators can impose on subscribers.

Legal Basis:47 U.S.C. 543.

Section Number and Title:

76.980—Charges for customer changes.

Brief Description:These rules provide for the certification and programming requirements for open video systems, including recordkeeping requirements.

Need:Maintenance of records documenting nondiscrimination is needed.

Legal Basis:47 U.S.C. 573.

Section Number and Title:

76.1503(c)(2)(ii)—Carriage of video programming providers on open video systems.

Brief Description:These rules require cable operators to provide notice to subscribers on a wide assortment of requirements set out in other sections of the part 76.

Need:Time periods are established for cable operator responses to subscribers, franchise authorities, the Commission, and other entities to ensure compliance with cable operator obligations.

Legal Basis:47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 503, 521, 522, 531, 532, 533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572 and 573.

Section Number and Title:

76.1601—Deletion or repositioning of broadcast signals.

76.1602—Customer service—general information.

76.1603—Customer service—rate and service changes.

76.1604—Charges for customer service changes.

76.1605—New product tier.

76.1606—Rate change while complaint pending.

76.1607—Principal headend.

76.1608—System technical integration requiring uniform election of must-carry or retransmission of consent status.

76.1609—Non-duplication and syndicated exclusivity.

76.1610—Change of operational information.

76.1611—Political cable rates and classes of time.

76.1612—Personal attack.

76.1613—Political editorials.

76.1614—Identification of must-carry signals.

76.1515—Sponsorship identification.

76.1616—Contracts with local exchange carriers.

76.1617—Initial must-carry notice.

76.1618—Basic tier availability.

76.1619—Information on subscriber bills.

76.1620—Availability of signals.

76.1621—Equipment compatibility offer.

76.1622—Consumer education program on compatibility.

Brief Description:These rules require cable operators to maintain records on a wide assortment of matters including a political file, EEO, children's programming, signal leakage, OVS requests for carriage, performance tests, and subscribers.

Need:These records are needed to document compliance with various regulatory requirements.

Legal Basis:47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 503, 521, 522, 531, 532, 533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572 and 573.

Section Number and Title:

76.1700—Records to be maintained by cable system operators.

76.1701—Political file.

76.1702—Equal employment opportunity.

76.1703—Commercial records on children's programs.

76.1704—Proof-of-performance test data.

76.1705—Performance test (channels delivered).

76.1706—Signal leakage logs and repair records.

76.1707—Leased access.

76.1708—Principal headend.

76.1709—Availability of signals.

76.1710—Operator interests in video programming.

76.1711—Emergency alert system (EAS) tests and activation.

76.1712—Open video system (OVS) requests for carriage.

76.1713—Complaint resolution.

76.1714—FCC rules and regulations.

76.1715—Sponsorship identification.

76.1716—Subscriber records and public inspection file.

Brief Description:These rules require cable operators to file reports with the Commission on such matters as registration statements, signal leakage monitoring, annual employment reports, and alternative rate regulation agreements.

Need:These rules are necessary to ensure cable operator compliance with related regulatory requirements.

Legal Basis:47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 503, 521, 522, 531, 532, 533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572 and 573.

Section Number and Title:

76.1800—Additional reports and filings.

76.1801—Registration statement.

76.1802—Annual employment report.

76.1803—Signal leakage monitoring.

76.1804—Aeronautical frequencies: Leakage monitoring (CLI).

76.1805—Alternative rate regulation agreements.

Brief Description:Part 80 contains rules relating to stations in the maritime services. Subpart B set forth rules regarding applications and licenses in those services.

Need:This rule notifies each Automated Maritime Telecommunications System (AMTS) coast station geographic area licensee that it must make a showing of substantial service within its service area within ten years of the initial license grant, or the authorization becomes invalid and must be returned to the Commission for cancellation.

Legal Basis:47 U.S.C. 154, 303, 307(e), 309, and 332; 47 U.S.C. 151-155,301-609; 3 U.S.T. 3450, 3 U.S.T. 4726 and 12 U.S.T. 2377.

Section Number and Title:

80.49(a)(3)—Construction and regional service requirements.

Brief Description:Part 80 contains rules relating to stations in the maritime services. Subpart J, as it relates to Automated Maritime Telecommunications System (AMTS) licensees, sets forth rules on the scope of service, points of communication, frequency use and assignment, and various technical matters.

Need:These rules are meant to prevent harmful interference between an AMTS licensee and broadcasters of television channels 13 and 10; they also permit AMTS licensees to use coast and ship frequencies on a secondary basis to support AMTS deployment in remote fixed locations where other communications facilities are not available; and give AMTS licensees the ability to use any modulation or channelization scheme, as long as that scheme complies with Section 80.211 at the band edges.

Legal Basis:47 U.S.C. 154, 303, 307(e), 309, and 332; 47 U.S.C. 151-155, 301-609; 3 U.S.T. 3450, 3 U.S.T. 4726 and 12 U.S.T. 2377.

Section Number and Title:

80.475(b)—Scope of service of the Automated Maritime Telecommunications System(AMTS).

80.477(d)—AMTS points of communication.

80.481—Alternative technical parameters for AMTS transmitters.

Brief Description:These rules contain limitations on the assignment of channels in the Public Safety Radio Pool.

Need:In implementing the goal of efficient spectrum use, these rules list technical and geographic limitations applicable to each frequency in the Public Safety Radio Pool.

Legal Basis:47 U.S.C. 154, 161, 303 and 332.

Section Number and Title:

90.20(d)(80) through (d)(83); 90.20(g)—Public safety pool.

Brief Description:Part 90 contains the Commission rules governing private land mobile radio services. Subpart C sets forth the rules relating to the industrial/business radio pool.

Need:This rules explains the assignment limitations of the Industrial/Business Pool Frequency Table, 47 CFR 90.35(b)(3), specifically, that after January 1, 2005, all stations operating with an authorized bandwidth greater than 11.25 kHz will be secondary to adjacent channel public safety interoperability operations.

Legal Basis:47 U.S.C. 154(i), 161, 303(g), 303(r) and 332(c)(7).

Section Number and Title:

90.35(c)(82)—Industrial/Business pool.

Brief Description:These rules promote efficient spectrum use and nationwide interoperability. First, applications for 700 MHz narrowband low power itinerant use channels are exempt from frequency coordination. Second, these rules authorize public safety licensees to share their facilities on a non-profit cost-shared basis with Federal Government entities as well as permit Industrial Business Pool licensees to share their facilities with Public Safety Pool entities and Federal Government entities.

Need:In implementing the goals of efficient spectrum use and nationwide interoperability, these rules eliminate regulatory burdens on public safety entities.

Legal Basis:47 U.S.C. 154(i), 161, 303(g), 303(r) and 332(c)(7).

Section Number and Title:

90.175(j)(15)—Frequency coordinator requirements.

90.179(g) and (h)—Shared use of radio stations.

Brief Description:Part 90 contains the Commission rules governing private land mobile radio (PLMR) services. Subpart I sets forth the various technical standards with which a PLMR licensee must comply, including standards for acceptability of equipment, frequency tolerance, modulation, emissions, power, and bandwidths.

Need:This rule requires that mobile and portable voice-transmitting equipment operating on 150-174 MHz and 450-470 MHz bands be capable of operating on the corresponding nationwide public safety interoperability calling channel.

Legal Basis:47 U.S.C. 154(i), 161, 303(g), 303(r) and 332(c)(7).

Section Number and Title:

90.203(j)(1)—Certification required.

Brief Description:Subpart R sets forth the rules governing the licensing and operations of all systems operating in the 763-775 MHz and 793-805 MHz frequency bands. The 769-775/799-805 MHz segment is allocated for narrowband operations. In the narrowband segment, these rules allow the licensing of the 700 MHz General Use Narrowband Channels for assignment to public safety eligibles, subject to Commission approved regional planning committee (RPC) regional plans. The Narrowband State Channels are directly licensed to each state (including U.S. territories, districts, and possessions) and are subject to certain licensing conditions. The Narrowband Low Power Itinerant Channels are licensed for nationwide itinerant operation and are not subject to regional planning or frequency coordination. These rules also specify transmitter power and emission limits to avoid interference and promote efficient spectrum use.

Need:In implementing the goal of nationwide interoperability, these rules designate public safety spectrum for day to day operational needs as well as nationwide voice interoperability, while providing technical requirements to avoid interference and increase spectrum efficiency.

Legal Basis:47 U.S.C. 154(i), 161, 303(g), 303(r) and 332(c)(7).

Section Numbers and Title:

90.529—State license.

90.531(b)(4) through (b)(6)—Band plan.

90.541(d)—Transmitting power limits.

90.543(f) and (g)—Emission limits.

Brief Description:Part 90 contains the Commission rules governing private land mobile radio services. Subpart S sets forth the rules governing the licensing and operations of all systems operating in the 806-824/851-869 MHz and 896-901/935-940 MHz bands, including eligibility requirements, and operational and technical standards for stations licensed in these bands.

Need:These rules state that local governments applying for Public Safety Pool frequencies are bound by all applicable rules, and that CMRS licensees that are operating in these bands are subject only to the station identification requirements of § 90.425(e), and not § 90.647(a) through (c).

Legal Basis:47 U.S.C. 154(i), 161, 303(g), 303(r) and 332(c)(7).

Section Number and Title:

90.629(f)—Extended implementation period.

90.647(d)—Station identification.

Brief Description:Part 95 contains the Commission rules relating to personal radio services. Subpart D sets forth the rules governing the various citizens band services, including the Citizens Band (CB) Radio Service; Family Radio Service (FRS); Low Power Radio Service (LPRS); Medical Device Radiocommunication Service (MedRadio); Wireless Medical Telemetry Service (WMTS); Multi-Use Radio Service (MURS); and Dedicated Short-Range Communications Service On-Board Units (DSRCS-OBUs).

Need:The rule defines WMTS as a private, short distance data communication service for the transmission of patient medical information to a central monitoring location in a hospital or other medical facility, and lists certain conditions under which WMTS may, and may not, operate.

Legal Basis:47 U.S.C. 154 and 303.

Section Number and Title:

95.401(e)—(CB Rule 1) What are the Citizens Band Radio Services?

Brief Description:Part 95 contains the Commission rules relating to personal radio services. Subpart E sets forth the technical standards under which part 95 licensees may operate.

Need:These rules clarify that a Wireless Medical Telemetry Service (WMTS) licensee may transmit any emission type appropriate for communications in this service, except for video and voice; and set forth other technical standards by which WMTS and Multi-Use Radio Service (MURS) licensees must operate.

Legal Basis:47 U.S.C. 154 and 303.

Section Number and Title:

95.631(i)—Emission types.

95.632—MURS transmitter frequencies.

95.633(f)—Emission bandwidth.

95.635(e)—Unwanted radiation.

95.639(g)—Maximum transmitter power.

Brief Description:Part 95 contains the Commission rules relating to personal radio services. Subpart H sets forth the rules governing the Wireless Medical Telemetry Service (WMTS), which is defined as a private, short distance data communication service for the transmission of patient medical information to a central monitoring location in a hospital or other medical facility.

Need:This subpart sets out the regulations governing the operation of Wireless Medical Telemetry Devices in the 608-614 MHz, 1395-1400 MHz, and 1427-1432 MHz frequency bands.

Legal Basis:47 U.S.C. 154 and 303.

Section Number and Title:

95.1101—Scope.

95.1103—Definitions.

95.1105—Eligibility.

95.1107—Authorized locations.

95.1109—Equipment authorization requirement.

95.1111—Frequency coordination.

95.1113—Frequency coordinator.

95.1115—General technical requirements.

95.1117—Types of communications.

95.1119—Specific requirements for wireless medical telemetry devices operating in the 608-614 MHz band.

95.1121—Specific requirements for wireless medical telemetry devices operating in the 1395-1400 MHz and 1427-1432 MHz bands.

95.1123—Protection of medical equipment.

95.1125—RF safety.

95.1127—Station identification.

95.1129—Station inspection.

Brief Description:Part 95 contains the Commission rules relating to personal radio services. Subpart J sets forth the rules governing the Multi-Use Radio Service (MURS), which is defined as a private, two-way, short-distance voice or data communications service for personal or business activities of the general public.

Need:This subpart sets out technical and other rules regarding the Multi-Use Radio Service (MURS), which is defined as a private, two-way, short-distance voice or data communications service for personal or business activities of the general public.

Legal Basis:47 U.S.C. 154 and 303.

Section Number and Title:

95.1301—Eligibility.

95.1303—Authorized locations.

95.1305—Station identification.

95.1307—Permissible communications.

95.1309—Channel use policy.

Brief Description:Subpart A contains the general rules pertaining to Commission's scope and authority and definitions.

Need:The revised rules established definitions relevant to the 24 GHz service and Multiple Address Systems.

Legal Basis:47 U.S.C. 154 and 303.

Section Number and Title:

101.1—Scope and authority.

101.3—Definitions.

Brief Description:Subpart B sets forth the general filing requirements for applications and licenses in the Fixed Microwave Services.

Need:The revised rules modified the buildout requirements for the 38.6-40.0 GHz band, revised the rules relating to the 24 GHz service, updates frequency assignments to reflect the reallocation of frequencies in the 18 GHz band to the Fixed Satellite Service and the grandfathering of existing facilities, requires Mobile Satellite Service licensees to relocate existing Fixed Service licensees in the 2165-2200 MHz bands in cases where sharing between MSS and FS is not possible, and made various editorial changes to the Part 101 rules.

Legal Basis:47 U.S.C. 154 and 303.

Section Number and Title:

101.4—Transition plan.

101.17—Performance requirements for the 38.6-40.0 GHz frequency band.

101.21—Technical content of applications.

101.31—Temporary and conditional authorizations.

101.45—Mutually exclusive applications.

101.55—Considerations involving transfer or assignment applications.

101.61—Certain modifications not requiring prior authorization in the Local Multipoint Distribution Service and 24 GHz Service.

101.63—Period of construction; certification of completion of construction.

101.69—Transition of the 1850-1990 MHz, 2110-2150 MHz, and 2160-2200 MHz bands from the fixed microwave services to personal communications services and emerging technologies.

101.73—Mandatory negotiations.

101.75—Involuntary relocation procedures.

101.81—Future licensing in the 1850-1990 MHz, 2110-2150 MHz, and 2160-2200 MHz bands.

101.83—Modification of station license.

101.85—Transition of the 18.3-19.3 GHz band from the terrestrial fixed services to the fixed-satellite service (FSS).

101.89—Negotiations.

101.91—Involuntary relocation procedures.

101.95—Sunset provisions for licensees in the 18.30-19.30 GHz band.

101.97—Future licensing in the 18.30-19.30 GHz band.

Brief Description:Subpart C sets forth technical standards for applications and licenses in the Fixed Microwave Services.

Need:The revised rules establish revised technical standards for the 24 GHz Service, Multiple Address Systems, and Operational Fixed Stations.

Legal Basis:47 U.S.C. 154 and 303.

Section Number and Title:

101.101—Frequency availability.

101.103—Frequency coordination procedures.

101.105—Interference protection criteria.

101.109—Bandwidth.

101.111—Emission limitations.

101.113—Transmitter power limitations.

101.115—Directional antennas.

101.135—Shared use of radio stations and the offering of private carrier service.

101.139—Authorization of transmitters.

101.141—Microwave modulation.

101.143—Minimum path length requirements.

101.145—Interference to geostationary-satellites.

101.147—Frequency assignments.

Brief Description:Subpart E sets forth miscellaneous provisions applicable to Common Carrier microwave stations.

Need:The revised rules apply requirements relating to discontinuance of service and equal employment opportunities to common carrier operation in the 24 GHz service.

Legal Basis:47 U.S.C. 154 and 303.

Section Number and Title:

101.305—Discontinuance, reduction or impairment of service.

101.311—Equal employment opportunities.

Brief Description:Subpart G sets forth rules for the 24 GHz Service and the Digital Electronic Message Service and provides the provisions implementing Section 309(j) of the Communications Act of 1934, as amended, authorizing the Commission to employ competitive bidding procedures to resolve mutually exclusive applications for initial licenses.

Need:The revised rules establish revised technical and service rules for the 24 GHz Service and implement the Commission's competitive bidding authority under 47 U.S.C. 309(j).

Legal Basis:47 U.S.C. 151, 154(i), 154(j), 155, 157, 225, 303(r) and 309.

Section Number and Title:

101.501—Eligibility.

101.503—Digital Electronic Message Service Nodal Stations.

101.509—Interference protection criteria.

101.511—Permissible services.

101.521—Spectrum utilization.

101.523—Service areas.

101.525—24 GHz system operations.

101.526—License term.

101.527—Construction requirements for 24 GHz operations.

101.529—Renewal expectancy criteria for 24 GHz licenses.

101.531—[Reserved]

101.533—Regulatory status.

101.535—Geographic partitioning and spectrum aggregation/disaggregation.

101.537—24 GHz band subject to competitive bidding.

101.538—Designated entities.

Brief Description:Subpart J sets forth rules for the Local Television Transmission Service.

Need:The revised rules revise the frequency assignments available for the Local Television Transmission Service and revise the requirements applicable to operation of such facilities at temporary fixed locations.

Legal Basis:47 U.S.C. 154 and 303.

Section Number and Title:

101.803—Frequencies.

101.815—Stations at temporary fixed locations.

Brief Description:Subpart O sets forth the general provisions, system license requirements, and system requirements for Multiple Address Systems as well as the provisions implementing Section 309(j) of the Communications Act of 1934, as amended, authorizing the Commission to employ competitive bidding procedures to resolve mutually exclusive applications for certain initial licenses.

Need:The Subpart O rules establish service and technical rules applicable to Multiple Address Systems and implement the Commission's competitive bidding authority under 47 U.S.C. 309(j).

Legal Basis:47 U.S.C. 154, 303 and 309.

Section Number and Title:

101.1301—Scope.

101.1303—Eligibility.

101.1305—Private internal service.

101.1307—Permissible communications.

101.1309—Regulatory status.

101.1311—Initial EA license authorization.

101.1313—License term.

101.1315—Service areas.

101.1317—Competitive bidding procedures for mutually exclusive MAS EAapplications.

101.1319—Competitive bidding provisions.

101.1321—License transfers.

101.1323—Spectrum aggregation, disaggregation, and partitioning.

101.1325—Construction requirements.

101.1327—Renewal expectancy for EA licensees.

101.1329—EA Station license, location, modifications.

101.1331—Treatment of incumbents.

101.1333—Interference protection criteria.

Background

On November 1, 1996, the U.S. Department of Transportation amended its regulation implementing section 504 of the Rehabilitation Act of 1973 to create a new section 49 CFR 27.72, concerning regulatory requirements for U.S. airports to ensure the availability of lifts to provide level-entry boarding for passengers with disabilities flying on small commuter aircraft.See61 FR 56409. This requirement paralleled the lift provisions applicable to U.S. carriers in the ACAA rule, 14 CFR part 382. On May 13, 2008, the Department of Transportation published a final rule that amended part 382 by making it applicable to foreign air carriers.See73 FR 27614. In addition to making the rule applicable to foreign carriers, the amended part 382 includes provisions that require U.S. and foreign air carriers, in cooperation with airport operators, to provide animal relief areas for service animals that accompany passengers departing, connecting, or arriving at U.S. airports.See14 CFR 382.51(a)(5). Part 382 also requires U.S. and foreign air carriers to enable captioning on all televisions and other audio-visual displays that are capable of displaying captioning and that are located in any portion of the airport terminal to which any passengers have access.See14 CFR 382.51(a)(6). As a result of the 2008 amendment to part 382, the requirements in part 27 do not mirror the requirements applicable to airlines set forth in part 382. In order to harmonize part 27 with the amended part 382, the Department proposes to amend part 27 to add such parallel provisions.

The proposed rule would also update outdated terminology and references that currently exist in 49 CFR part 27. The proposed rule would change the word “handicapped,” and similar variations of that word that appear throughout part 27, to “people first” language (e.g.,“individuals with disabilities”) consistent with practice under the Americans with Disabilities Act. Additionally, the proposed rule would delete the obsolete reference to the Uniform Federal Accessibility Standards in 49 CFR 27.3(b) and change the language “appendix A to part 37 of this title” to “appendices B and D of 36 CFR part 1191, as modified by appendix A to part 37 of this title.”

The 2008 amendment to part 382 requires U.S. and foreign air carriers to work with airport operators to provide service animal relief areas at U.S. airports. Part 27 does not include a provision that mirrors this requirement. As such, the Department proposes to amend part 27 by inserting a provision that would require airport operators to work with carriers to establish relief areas for service animals that accompany passengers with disabilities departing, connecting, or arriving at U.S. airports.

Part 382 does not provide specific directives regarding the design, number, or location of service animal relief areas an airport should have; it simply requires carriers to provide service animal relief areas in cooperation with the airports and in consultation with service animal training organizations concerning the design of service animal relief areas. However, in a Frequently Asked Questions document issued by the Department's Aviation Enforcement Office on May 13, 2009, examples of factors airlines and airports should consider in designating and constructing areas for service animal relief at U.S. airports are provided.1 Factors to consider in establishing relief areas include the size and surface material of the area, maintenance, and distance to relief area which could vary based on the size and configuration of the airport. The Department seeks comment about whether it should adopt requirements regarding the design of service animal relief areas and what, if any, provisions the rule should include concerning the dimensions, materials used, and maintenance for relief areas.

We are tentatively proposing a minimum of one service animal relief area for each terminal in an airport. The Department is aware that requiring only one service animal relief area for each terminal in an airport may result in individuals with disabilities missing flights when trying to reach service animal relief areas located outside the sterile area of an airport, especially inlarger airports. For this reason, and despite our tentative recommendation of one relief area for each terminal in an airport, the Department seeks comment on what would be an appropriate number of service animal relief areas in an airport. In addition to seeking public comment on how many service animal relief areas should be required at an airport or a terminal, the Department would like to know how that number should be determined. For example, should the number be determined by the size or configuration of the airport (e.g.,the number, location and design of terminals and concourses) and/or the amount of time it would take for an individual with a disability to reach a service animal relief area from any gate within the airport? Or should DOT establish a performance requirement that a passenger arriving at any gate with his or her service animal be able to reach a relief area in 10, 20 or some other number of minutes?

The Department also seeks comment on the placement of service animal relief areas, particularly whether service animal relief areas should be located inside or outside the sterile2 area of an airport. It could be important to have relief areas both inside and outside the sterile area of an airport to ensure that individuals with service animals have access to such areas when traveling. For example, an individual traveling with a service animal could arrive at Gate C3 and have an hour to make a connection to a flight at Gate G17. If the individual must leave the sterile area to find a service animal relief area, travel to and from that area, and then go back through security screening, the individual could have difficulty in making the connecting flight. At the same time, we understand that some airports have expressed security and logistical concerns about the placement of service animal relief areas inside the sterile area of an airport. The Department also recognizes that the Transportation Security Administration (TSA) in May 2011 revised its guidelines “Recommended Security Guidelines for Airport Planning, Design and Construction,” to make clear that airports may provide Service Animal Relief Areas in sterile areas of the airport, or may provide escorted access to non-designated outdoor areas for the purpose of service animal relief. The Department also recognizes that coordination with the TSA via each airport's site-specific Airport Security Program would need to occur if service animal relief areas are to be placed inside the sterile area. Consequently, the Department seeks comment on where airport service animal relief areas should be located to ensure that the time and distance to access the service animal relief areas do not create barriers for passengers with disabilities.

Finally, the Department has been made aware that some individuals with disabilities, especially, but not only, individuals who are blind or visually impaired, are experiencing difficulty in locating service animal relief areas at certain airports. Under part 382, passengers who request that a carrier provide them with assistance to an animal relief area should be advised by the carrier of the location of the animal relief area. Additionally, if requested, it would be the responsibility of the carrier to accompany a passenger traveling with a service animal to and from the animal relief area. Nevertheless, we seek comment on whether the rule should include a provision requiring airports to specify the location of service animal relief areas on airport Web sites, maps and/or diagrams of the airport, including whether the relief area is located inside or outside a sterile area. We also seek comment on whether airports should be required to provide signage to assist individuals with disabilities in locating service animal relief areas.

To the extent that the Department issues a final rule with requirements for airports to establish service animal relief areas that are more detailed than the requirements for U.S. and foreign airports that exist in part 382, the Department believes that it is beneficial to have the same requirements apply to U.S. and Foreign airlines. As such, we are soliciting comment on whether any requirement that applies to U.S. airports should also be applied to U.S. and foreign carriers. For example, if the Department creates a requirement that airports must establish service animal relief areas inside the sterile area of an airport, should such a requirement apply to U.S. and foreign air carriers in part 382?

We propose that any final rule that we adopt regarding establishing service animal relief areas take effect 120 days after its publication in theFederal Register. We believe this would allow sufficient time for airports to comply with this requirement, particularly since U.S. and foreign airlines are already working with airports to establish and maintain service animal relief areas. We invite comments on whether 120 days is the appropriate interval.

As a result of the 2008 amendment of part 382, U.S. and foreign air carriers are required to enable captioning3 on televisions and other audio-visual displays under their control in terminals to which passengers have access. Currently part 27 does not have a corresponding requirement for U.S. airports. The Department proposes to amend part 27 by inserting a provision that would require airport operators at U.S. airports to enable high-contrast captioning on certain televisions and audio-visual displays in U.S. airports.

Most televisions currently in use at U.S. airports have captioning capabilities because all televisions with screens 13″ or larger in size, made or sold in the U.S. since July 1, 1993, are required by Federal law to have captioning capabilities. Because of this, DOT believes that requiring airports to enable the captioning feature should not be costly or otherwise onerous. We believe compliance with this section is a matter of providing the training necessary to turn on the captioning feature of a television or other audio-visual display. Such training does not appear to require a lengthy amount of time or in-depth instruction. Given the straightforward nature of the implementation involved, the Department believes that the proposed thirty-day implementation period is adequate. DOT seeks comment on any reasons that a longer time frame may be necessary.

Part 27 also does not contain a requirement for airports to provide the same information to deaf or hard of hearing individuals in airports that they provide to other members of the public. It is important that persons with a hearing loss or who are deaf do not miss important information available to others at an airport through the public address system. The Department seeks comment on whether it should require U.S. airports to display messages and pages broadcast over public address systems on video monitors. We also seek comment on whether we should amend 14 CFR part 382 to apply such a requirement to U.S. and foreign air carriers with respect to terminal facilities that a carrier owns, leases or controls. Is visual display of information announced over the public addresssystem the best means to disseminate airport-related announcements to passengers with hearing impairments? Should the Department establish a performance standard for providing information to individuals with hearing impairments rather than require airports to use a particular medium (e.g.,video monitors, wireless pagers, erasable boards)? Also, we ask interested persons to comment on whether the Department should simply require that airports provide the text of the announcements made over the public address system promptly or should instead require that there be simultaneous visual transmission of the information. We also seek comment on whether all announcements made through the public address system should be displayed in a manner that is accessible to deaf and hard-of-hearing travelers, or only those announcements that are essential,e.g.,that pertain to emergencies (fire, bomb threatetc.), flight information (gate assignments, delays or cancellations), or individuals being paged. Finally, the Department seeks comment on how much time airports would need to establish a system for displaying announcements and pages broadcast over public address system as well as the cost for establishing such a system.

Approximately 10 years ago, 49 CFR 27.72 was amended to mirror a provision in part 382 that required U.S. air carriers to enter into agreements with airport operators to ensure that lifts are available for enplaning and deplaning passengers with disabilities. As noted above, part 382 was extended to foreign air carriers in 2008. Currently 49 CFR 27.72 does not require U.S. airports to work with foreign carriers to ensure that lifts are available; the language in 49 CFR 27.72 covers only arrangements with U.S. carriers. The proposed rule would impose on U.S. airports the same requirements with respect to foreign carriers that 49 CFR 27.72 currently imposes on them with respect to U.S. carriers. The proposed rule would require airport operators to negotiate in good faith with foreign air carriers to provide, operate and maintain lifts for boarding and deplaning where level-entry loading bridges are not available. Under this proposal, the airport operators would be required to sign, no later than 90 days after publication of the final rule in theFederal Register, a written agreement with each foreign air carrier serving that airport that allocates responsibility for providing, operating and maintaining the lifts. We are proposing that the agreement provide that all actions necessary to ensure accessible boarding and deplaning for passengers with disabilities be completed no later than 120 days after the final rule's publication in theFederal Register.

Also, the proposed rule would restructure the current lift requirements found in 49 CFR 27.72. When the rule was first written, 49 CFR 27.72 applied to aircraft with a seating capacity of 19 through 30 passengers. This provision was amended in May 3, 2001, to also apply to aircraft with a seating capacity of 31 or more passengers. Because of the implementation timelines specified in the 2001 amendment, 49 CFR 27.72 includes two separate provisions outlining boarding assistance requirements for individuals with disabilities, section 27.72(c) and section 27.72(d). As an editorial matter the proposed rule would eliminate this distinction and make the rule applicable to lifts for boarding any aircraft with a seating capacity of 19 or more passengers that are not boarded via a level-entry loading bridge.

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This action has been determined to be significant under Executive Order 12866 and the Department of Transportation Regulatory Policies and Procedures because of its considerable interest to the disability community and the aviation industry. However DOT does not believe at this time that this action meets the criteria under the Executive Order for an economically significant rule.

This action is the result of several important regulatory changes made to 14 CFR part 382, the rule implementing the ACAA. The extension to U.S. airports of the current lift provision in 49 CFR part 27, which requires airports to work not only with U.S. but also with foreign air carriers to ensure the availability of lifts, will be of interest to the aviation industry and the public. The Department has attempted to propose this extension in as equitable a manner as possible by applying to U.S. airports the same regulatory provisions that apply to U.S. and foreign air carriers. As noted above, the provisions of the proposed rule apply only to U.S. airports with 10,000 or more annual enplanements and that receive Federal financial assistance.

The rule is not expected to require the purchase of additional lifts, since the approximately 216 affected U.S. airports (i.e.,those that are served by foreign flag carriers and that have 10,000 or more enplanements) will already have lifts available by agreement between the airports and U.S. carriers as a result of the existing version of part 27. These airports may have already agreed with foreign carriers, such as certain Canadian, Mexican, or Caribbean carriers that use smaller aircraft that board from the tarmac, to provide this service; most other foreign carriers use larger aircraft that normally board via loading bridges. The effect of the rule would then be only to mandate what has already been done voluntarily. Existing agreements between carriers and airports, however, may need to be adjusted to broaden the availability of the lifts. Nonetheless, the Department seeks comment on whether the rule would require U.S. airports to purchase additional lifts, and if so how many, and what the cost of a typical lift is.

A particularly important element of the proposed rule is the addition of a new provision that requires U.S. airport operators, in cooperation with U.S. and foreign air carriers, to provide service animal relief areas. The proposed rule contemplates a minimum of one relief area for each terminal within an airport; however, the Department is aware that requiring only one service animal relief area for each terminal in an airport may be inadequate as it may result in individuals with disabilities missing flights when trying to reach service animal relief areas located outside the sterile area of an airport, especially in larger airports. Nonetheless, given the widely divergent plans of airports, we are only able to make a plausible assumption about the number of terminals that exist in a given airport based on the size of the airport. Using information provided by the FAA, which categorizes the size of the 368 airports within the United States, we postulate that the 29 large-hub airports contain approximately 7 terminals, the 36 medium-hub airports contain approximately 5 terminals, the 72 small-hub airports contain approximately 3 terminals, and the 231 non-hub airports contain approximately 1 terminal. Assuch, we estimate that 830 terminals will exist in the 368 airports in the United States. We estimate that the initial cost for such an area would be approximately $5,000 per terminal, with low- and high-cost alternatives ranging from $1,000 to $10,000. We postulate a likely annual maintenance cost of $1,000 per terminal with a range from $500 to $2,000. The Department seeks comments on these estimates.

Also, the Department believes that most airport video monitors have captioning capability, and turning on the captioning is likely to have minimal costs.

This Notice of Proposed Rulemaking has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This notice does not propose any regulation that has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. It does not propose any regulation that imposes substantial direct compliance costs on States and local governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

This Notice of Proposed Rulemaking has been analyzed in accordance with the principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). The funding and consultation requirements of Executive Order 13084 do not apply because this notice does not significantly or uniquely affect the communities of the Indian Tribal governments and does not impose substantial direct compliance costs.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601et seq.,as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e.,small businesses, small organizations, and small governmental jurisdictions). No regulatory flexibility analysis is required if the head of an agency certifies that the rule will 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 will not have a significant economic impact on a substantial number of small entities.

The Department certifies that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The Small Business Administration (SBA) size standards define privately owned airports as small businesses if their annual revenues do not exceed $7 million. Publicly owned airports are categorized as small entities if they are owned by jurisdictions with fewer than 50,000 inhabitants. This rule applies to airports with 10,000 or more annual enplanements, which are primary airports that have more commercial-service traffic and account for 96% of U.S. enplanements per annum. Out of the 368 airports with more than 10,000 enplanements that are potentially affected by the proposed rule, we estimate that approximately 50 to 55 are defined as small entities.

The Department believes that the economic impact will not be significant to these 55 airports because the overall annual costs associated with the rule are not great. The only provision of this rule that we believe may impose measurable costs on airports is the requirement that at least one service animal relief area be made available at each U.S. airport terminal. The estimated total costs for constructing and maintaining relief areas at these airports, assuming that each of these 55 airport would only need one relief area, would range from a low of about $600 to a high of about $3,000, with an expected value of about $1,500. On the basis of this examination, the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities. A copy of the Regulatory Flexibility Analysis will be placed in docket.

This proposed rule adopts new and revised information collection requirements subject to the Paperwork Reduction Act (PRA). The Department will publish a separate notice in theFederal Registerinviting OMB, the general public, and other Federal agencies to comment on the new and revised information collection requirements contained in this document. As prescribed by the PRA, the requirements will not go into effect until OMB has approved them and the Department has published a notice announcing the effective date of the information collection requirements.

The Department has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this notice.

For the reasons set forth in the preamble, the Department of Transportation proposes to amend 49 CFR part 27 as follows:

1. The authority citation for part 27 continues to read as follows:

2. In § 27.3, amend paragraph (b) to read as follows:

3. In § 27.71, add paragraph (h) and (i) to read as follows:

4. Amend § 27.72 to read as follows:

When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly review the status of the species (status review). For the status review to be complete and based on the best available scientific and commercial information, we request information on the American eel from governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties. We seek new information not previously available or not considered at the time of the 2007 status review on:

(1) The species' biology, range, and population trends, including:

(a) Habitat requirements for feeding, breeding, and sheltering;

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for the species, its habitat, or both.

(2) The factors that are the basis for making a listing determination for a species under section 4(a) of the Act (16 U.S.C. 1531et seq.), which are:

(a) The present or threatened destruction, modification, or curtailment of its habitat or range;

(b) Overutilization for commercial, recreational, scientific, or educational purposes;

(c) Disease or predation, specifically:

(i) Rangewide analysis of the prevalence of the parasite,Anguillicola crassus,in American eel;

(ii) Data collection and analysis designed to differentiate between American eel rangewide population fluctuations responding to other natural phenomena, such as ocean conditions, and infections fromAnguillicola crassus;

(d) The inadequacy of existing regulatory mechanisms; or

(e) Other natural or manmade factors affecting its continued existence.

(3) Data that supports or refutes:

(a) Panmixia (having one, well-mixed breeding population), including evidence of genetic differentiation that results in selective growth, sex ratios, increased vulnerability to threats, or habitat preferences;

(b) Existence of population structure to the degree that a threat could have differentiating effects on portions of the population and not on the whole species;

(c) Statistically significant long-term glass eel recruitment declines. If landings data are used, the catch per unit effort is integrated into the results, preferably from more than one location along the Atlantic Coast. Raw data will be accepted; however, data that have not been analyzed will likely have limited value in our assessment.

(4) Information on the correlation between climate change and glass eel recruitment, such as Atlantic oceanic conditions data, analyses, and predictions including, but not limited to:

(a) Climate change predictions over the next 25, 50, 75, and/or 100 years as they relate to ocean circulation, changes in the Sargasso sea circulation, sea surface temperature (SST), or larvae and glass eel food availability, either directly or indirectly through changes in SST that affect primary productivity;

(b) Quantitative research on the food of eel larvae and the relationship of food availability to survival of eel larvae;

(c) Further investigations into the indirect effects of a change in SST on nutrient circulation due to enhanced stratification of the water column and its effects on phytoplankton communities;

(d) The length of time eel larvae take to migrate to the Atlantic coast from the Sargasso Sea;

(e) The impact of food availability along the entire migration route on eel larvae survival;

(f) Threats to the Sargasso Sea of the magnitude that would be predicted to affect glass eel recruitment, and information on increased larval retention in the Sargasso Sea gyre resulting from changes in winds due to climate change.

If, after the status review, we determine that listing the American eel is warranted, we will propose critical habitat (see definition in section 3(5)(A) of the Act) under section 4 of the Act, to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, we also request data and information on:

(1) What may constitute “physical or biological features essential to the conservation of the species,” within the geographical range currently occupied by the species;

(2) Where these features are currently found;

(3) Whether any of these features may require special management considerations or protection;

(4) Specific areas outside the geographical area occupied by the species that are “essential for the conservation of the species;” and

(5) What, if any, critical habitat you think we should propose for the designation if the species is proposed for listing, and why such habitat meets the requirements of section 4 of the Act.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your information concerning this status review by one of the methods listed inADDRESSES. If you submit information viahttp://www.regulations.gov,your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hard copy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hard copy submissions onhttp://www.regulations.gov.

Information and supporting documentation that we received and used in preparing this finding are available for you to review athttp://www.regulations.gov,or you may make an appointment during normal business hours at the U.S. Fish and Wildlife Service, Northeast Regional Office (seeFOR FURTHER INFORMATION CONTACT).

Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in theFederal Register.

Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly conduct a species status review, which we subsequently summarize in our 12-month finding.

On April 30, 2010, we received a petition dated April 30, 2010, from Craig Manson, Executive Director of the Council for Endangered Species Act Reliability (CESAR or petitioner), requesting that the American eel be listed by the Service and National Marine Fisheries Service (NMFS) as threatened under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, as required by 50 CFR 424.14(a). In a May 13, 2010, letter to the petitioner, we acknowledged receipt of the petition and stated that the Service, not NMFS, had jurisdiction over the American eel and we would be responding to the petition.

On September 7, 2010, we received a Notice of Intent to Sue (NOI) from the petitioner for failure to respond to the petition. In a November 23, 2010, letter to the petitioner, we stated that the Service's appropriation in fiscal year (FY) 2010 was insufficient to address its large backlog of listing actions, and consequently we had not yet been able to begin work on the petition. We also stated that we anticipated funding becoming available in FY 2011 to work on the petition. On December 29, 2010, we received a letter dated December 23, 2010, from the petitioner requesting clarification on our November 23, 2010, letter. The petitioner asked whether we had made a “warranted but precluded” determination due to funding limitations or were merely further acknowledging their petition. In a January 10, 2011, letter to the petitioner, we clarified that the intent of our November 23, 2010, letter was to both acknowledge receipt of the NOI and to explain that it was not practicable for the Service to work on the petition until we received funding to do so. We also stated that we had, as of January 10, 2011, received funding to evaluate the petition.

In a March 9, 2011, letter to the petitioner, we requested copies of the references that were cited as part of the petition but were not furnished with the petition or readily available in our files. On April 1, 2011, we received a letter dated March 31, 2011, from the petitioner stating that the requested citations were available via an internet Google search or through the Department of the Interior library or its interlibrary loan program. On April 4, 2011, we received a second copy of the March 31, 2011, letter with a compact disc containing most, but not all, of the requested references. This finding addresses the petition.

On May 27, 2004, the Atlantic States Marine Fisheries Commission (ASMFC), concerned about extreme declines in the Saint Lawrence River/Lake Ontario (SLR/LO) portion of the species' range, requested that the Service and NMFS conduct a status review of the American eel. The ASMFC also requested an evaluation of the appropriateness of a Distinct Population Segment (DPS) listing under the Act for the SLR/LO and Lake Champlain/Richelieu River portion of the American eel population, as well as an evaluation of the entire Atlantic coast American eel population (ASMFC 2004, p. 1). The Service responded to this request on September 24, 2004; our response stated that we had conducted a preliminary review regarding the potential DPS as described by the ASMFC, and determined that the American eel was not likely to meet the discreteness element of the policy requirements due to lack of population subdivision. Rather, the Service agreed to conduct a rangewide status review of the American eel in coordination with NMFS and ASMFC (Service 2004, p. 1).

On November 18, 2004, the Service and NMFS received a petition, dated November 12, 2004, from Timothy A. Watts and Douglas H. Watts, requesting that the Service and NMFS list the American eel as an endangered species under the Act. The petitioners cited destruction and modification of habitat, overutilization, inadequacy of existing regulatory mechanisms, and other natural and manmade factors (such as contaminants and hydroelectric turbines) as threats to the species. On July 6, 2005, the Service issued a 90-day finding (70 FR 38849), which found that the petition presented substantial information indicating that listing the American eel may be warranted, and initiated a status review.

On February 2, 2007, the Service issued a 12-month finding that listing the American eel as threatened orendangered was not warranted (72 FR 4967).

This section is a summary of the species information presented in the Service's 2007 12-month finding (72 FR 4967), supplemented where noted with more recent citations; for a more complete description of the species' biology, habitat and range, see 72 FR 4967, pp. 4968-4977.

The life history of the American eel begins in the Sargasso Sea, located in the middle of the North Atlantic Ocean, where eggs hatch into a larval stage known as “leptocephali.” These leptocephali are transported by ocean currents from the Sargasso Sea to the Atlantic coasts of North America and northern portions of South America. Leptocephali migrate in the surface layer of the ocean where food particles are most abundant. Tsukamotoet al.(2009, p. 835) found that leptocephali appear to have a unique mechanism of buoyancy control (chloride cells all over the body surface), that differs from other planktonic animals. The American eel undergoes several stages of metamorphosis, from leptocephali to juveniles arriving in coastal waters as unpigmented “glass eels.” When juvenile eels arrive in coastal waters, they can arrive in great density and with considerable yearly variation (ICES 2001, p. 2). Glass eels metamorphose (change) to pigmented “elvers” and then develop into “yellow eels,” occupying marine, estuarine, and freshwater habitats. American eels begin sexual differentiation at a length of about 20 to 25 centimeters (cm) (7.9 to 9.8 inches (in)) and, depending on eel density, become male or female “silver eels.” Upon nearing sexual maturity, these silver eels begin migration toward the Sargasso Sea, completing sexual maturation en route. Spawning occurs in the Sargasso Sea. It is hypothesized that there is an abrupt temperature change (referred to as a temperature front) or other as-yet-unidentified feature that serves as a cue for migrating adults to cease their long migration and begin spawning (Friedland 2007, p. 1). After spawning, the adults die; a species with this life-history trait is known as a semelparous species.

In our 2007 12-month finding, we explained that the American eel is one of 15 ancient species, evolving about 52 million years ago, of the worldwide genus Anguilla. The American eel is a highly resilient species with plastic life-history strategies allowing individuals to adapt to varying conditions. For example, to successfully complete the migration from the continent to the Sargasso Sea (outmigration), great endurance and an extensive fat reserve are required. Larger, fatter eels have an advantage over smaller eels in reaching the Sargasso Sea and having sufficient energy stores to reproduce. Fecundity (a measure of fertility) of American eels varies with body length and habitat occupied, larger female eels occupying upstream habitat produce more eggs than do smaller, estuarine females. Eels from northern areas, where migration distances are great, show slower growth and greater length, weight, and age at migration, preparing them, it has been hypothesized, for the longer migration. American eels in United States southern Atlantic coast waters, although smaller, develop into silver eels about 5 years sooner than northern eels, likely as a result of warmer, more stable water conditions. These southern eels would travel significantly shorter distances back to the Sargasso than would northern eels. Variation in maturation age benefits the population by allowing different individuals of a given year class to reproduce at different times over a period of many years, which increases the chances that some eels will encounter environmental conditions favorable for spawning success and offspring survival. For example, variability in the maturation age of eels born in 2006 may result in spawners throughout 2010 to 2030, during which time favorable environmental conditions are likely to occur at least once.

American eels are currently thought to be one, well-mixed, single breeding (panmictic) population (PBS&J 2008, pp. 2-9; MacGregoret al.2008, p. 2; Fenske 2009, p. 38; Mathers and Stewart 2009, p. 359; Tremblay 2009, p. 85; Jessup 2010, p. 339; Velez-Espino and Koops 2010, pp. 175-181). This panmictic life-history strategy maximizes adaptability to changing environments and is well suited to species that have unpredictable larval dispersal to many habitats (e.g.,marine, estuarine, and freshwater). By not exhibiting geographic or habitat-specific adaptations, eels have the ability to rapidly colonize new habitats and to recolonize disturbed ones over wide geographical ranges. The consequence of panmixia to the species' ability to withstand human-caused activities is captured in the following passage by Aoyama (2009, p. 32): “with a panmictic population structure, overharvesting eels in one area likely will not affect subsequent recruitment to that particular area because new recruits will arrive randomly from spawners that originated from other areas.”

While one study (Coteet al.2009, pp. 1943-1944) preliminarily suggests that regional variations in growth may be genetically related, and possibly call into question our understanding of panmixia in the American eel, the authors state that the genetics have not been rigorously tested, and the analysis may just show the start of possible adaptive population genetic differentiation (Coteet al.2009, pp. 1943-1944; DeLeoet al.2009, pp. 2, 4). If we find in the future that the Coteet al.(2009) hypothesis of a genetic basis for regional growth variations does have merit for the American eel, that will change our understanding that the eel is fully panmictic, and the Service may need to reexamine the species-level effects of the various threats discussed below. However, until such time as information becomes available concerning geographically distributed genetic structure for the American eel, we will continue to consider the American eel panmictic, as that life strategy is currently supported by the best scientific information available (PBS&J 2008, pp. 2-9; MacGregoret al.2008, p. 2; Fenske 2009, p. 38; Mathers and Stewart 2009, p. 359, Tremblay 2009, p. 85; Jessup 2010, p. 339; Velez-Espino and Koops 2010, pp. 175-181).

The extensive range of the American eel includes all accessible river systems and coastal areas having access to the western North Atlantic Ocean and to which oceanic currents would provide transport. As a result of oceanic currents, the majority of American eels occur along the Atlantic seaboard of the United States and Canada. The historical and current distribution of the American eel within its extensive continental range is well documented along the United States and Canadian Atlantic coast, and the SLR/LO. The distribution is less well documented and likely rarer, again due to currents, in the Gulf of Mexico, Mississippi watershed, and Caribbean Islands, and least understood in Central and South America.

The American eel is said to occupy the broadest diversity of habitats of any fish species (Helfmanet al.1987, p. 42). During their spawning and oceanic migrations, eels occupy salt water, and in their continental phase, use all salinity zones: fresh, brackish, and marine (for detailed habitat use by life stage, see Cairnset al.2005), and some eels move between fresh and brackish water several times throughout their life (Thibaultet al.2007, p. 1106; Jessupet al.2008, p. 210). Barring impassable natural or humanmade barriers, eels occupy all freshwater systems, including large rivers and theirtributaries, lakes, reservoirs, canals, farm ponds, and even subterranean springs. The eel's anguillid (eel-shaped) body form allows it to climb when at young stages and under certain conditions (e.g.,rough surfaces), enabling it to pass up and over some barriers encountered during upstream migrations in freshwater streams (Craig 2006, pp. 1-4). Eels are able to survive out of water for an exceptionally long time (eels can meet virtually all their oxygen needs through their skin), as long as they are protected from drying (for which their ability to produce mucus is of great adaptive significance). Eels have been seen using overland routes (while moist) when they encounter a barrier, which explains their entrance into landlocked waters (Tesch 2003, pp. 184-185) and their presence above numerous dams and weirs (Service 2005b, pp. 16-18).

No rangewide estimate of abundance exists for the American eel. Information on demographic structure is lacking and difficult to determine because the American eel is panmictic (see above), with individuals randomly spread over an extremely large and diverse geographic range, and with growth rates and sex ratios determined by the environmental conditions they encounter. Because of this unique life history, site-specific information on eels must be evaluated in context of its significance to the entire species. Determining status trends is challenging because the relevant available data are limited to a few locations that may or may not be representative of the species' range. Little information exists about key factors such as mortality and recruitment that could be used to develop an assessment model. (Recruitment refers to juveniles surviving and being added to the population.) In the American eel, recruitment is typically measured by counting glass eels as they reach coastal waters. Furthermore, the ability to make inferences about the species' viability based on available trend information is hampered without an overall estimate of eel abundance (i.e.,no abundance data exist for the estuarine and saline habitats). Despite these challenges, the Service determined in its 2007 12-month status review (72 FR 4967) that the entire American eel population appeared stable over the long-term.

The 2007 12-month finding concluded:

The Service's 2007 status review, documented in our 12-month finding (72 FR 4967), is, to date, the most comprehensive analysis of the American eel's rangewide status. The Service will use the 2007 status review as baseline information in the evaluation of the CESAR petition as well as other information that has become available since the 2007 12-month finding and prior to the receipt of the petition.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR part 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat, and we then attempt to determine how significant a threat it is. If the threat is significant, it may drive or contribute to the risk of extinction of the species such that the species may warrant listing as threatened or endangered as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively may not be sufficient to compel a finding that listing may be warranted. The information shall contain evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of threatened or endangered under the Act.

In making this 90-day finding, we evaluated whether the information regarding threats to the American eel found in the petition and in our files, including our 2007 12-month finding, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.

The petitioner asserts the American eel is threatened by loss of habitat or range and reductions in habitat (ASMFC 2009, NatureServe 2004), stating “significant anthropogenic [manmade] changes within the range have reduced the accessible habitat by percentages perilously close to 100 percent in some places” (Petition, p. 17). The petitioner asserts that “these reductions in habitat and their causes can have a cascadingadverse effect on eel populations” (Petition, p. 17). The petitioner also asserts that freshwater riverine systems are the most important habitat for eels and that “While it is possible that some eels spend their entire life cycle in salt water, oceanic research indicates such behavior is rare and virtually nonexistent; catch data from commercial trawling confirms empirically that this is rare. Certainly the marine component is small and at best an unknown and unquantified life strategy which provides little foundation for reliance on it as a basis for sustaining the American eel production” (Petition, p. 17). The petitioner also provides summary information regarding freshwater stream habitat loss due to obstructions (i.e.,dams) and some eel abundance and density observations throughout the coastal range of the species (Petition, pp. 19-21).

The petitioner restated much of the information provided in the Service's 2007 12-month finding (72 FR 4967), along with information from a few sources published after the 2007 12-month finding. However, most of these “new” sources of information, while published after the 2007 12-month finding, summarize the same historical information regarding habitat loss and degradation available to, and considered by, the Service for the 2007 12-month finding (see Buschet al.1998 cited in ASMFC 2009, Maryland Department of Natural Resources 1999, NatureServe 2004). The petitioner cited information from a book “Eels at the Edge” (Casselman and Cairns 2009). This entire book was unavailable to the authors of this 90-day finding to analyze since the petitioner did not provide the requested copy and the entire book did not become available from the Service's files until after the 90-day finding was drafted; however, the book is actually a compilation of papers, many of which (e.g.,Weeder and Uphoff (2009) and Welsh and Hammond (2009)) were available and analyzed by us for this 90-day finding. The complete Casselman and Cairns (2009) book will be evaluated during the new 12-month status review.

The Service's Factor A analysis in the 2007 12-month finding (72 FR 4967, pp. 4978-4983) reviewed spawning and ocean migration habitat; estuarine and marine habitat; and freshwater habitat, including lacustrine (lake) habitat, specifically Lake Ontario, and the impacts of barriers (including dams) on distribution. The Service found in the 2007 12-month finding that spawning and ocean habitats were not impacted by significant threats and that American eels used estuarine, marine, and freshwater habitats, including exclusive use of marine and estuarine habitats by some eels (72 FR 4967, p. 4983). Although extensive loss of historical freshwater habitat has occurred due to human-induced barriers (i.e.,dams constructed for hydroelectric, water supply, and recreational purposes), any population-level impacts have likely already been realized and there is no indication of future barrier construction that would further limit freshwater habitat (72 FR 4967, p. 4983). The “American eel remains well-distributed throughout roughly 75 percent of its historical range, mainly in the lower reaches of the watersheds,” and although American eel abundance has been more affected by barriers than has distribution, “there is no evidence that the reduction in densities has resulted in a negative population-level effect such as a reduction in glass eel recruitment. Analyses of local and regional declines in abundance do not temporally correlate with the loss of access to freshwater habitat” (72 FR 4967, p. 4983). The 2007 12-month finding concluded that freshwater, estuarine, and marine habitats were sufficient to sustain American eel populations, and the present or threatened destruction, modification, or curtailment of its habitat or range was not a threat to the American eel (72 FR 4967, pp. 4983, 4996).

In addition to the baseline information in the Service's 2007 12-month finding, new information in the Service's files at the time of the receipt of the petition continues to demonstrate that American eels persist in all three habitat types, despite localized impacts. In some instances, the new information suggests that American eels do more than just “persist” in estuarine and coastal marine waters; in fact, those habitat types may be even more important to American eels than we previously thought (Machutet al.2007, p. 1707; Jessupet al.2008, p. 210; Cairns 2009, p. 74; Fenske 2009, p. 75; ICES 2009, p. 1; Jessupet al.2009, pp. 867-868; Jessup 2010, p. 328). Examples of localized impacts to freshwater habitat include a paper by Machutet al.(2007, p. 1700) that suggests urbanization in Hudson River tributaries impacts the invertebrate communities used as food for the American eel and may be contributing to the reported decline of American eels from certain portions of their historic range, and a letter from the Service to the City of Raleigh indicating impacts to the Little River in North Carolina if projected water supply and disposal projects proceed (USFWSin litt.2009b). However, we have no information to suggest that these two localized examples are indicative of rangewide impacts to freshwater habitat.

Throughout the freshwater range of the American eel, new eel passage projects (since 2007) have been completed or are planned. While upstream passage facilities are not present everywhere within the American eel's range (Minkkinen and Park 2007, p. 1) and existing upstream passage facilities do cause some mortality, more American eels are passed into the upper reaches of watersheds now than prior to 2007. For example, an eel passage project was completed at the Roanoke Rapids Dam in North Carolina (American Eel Working Group (AEWG) 2010, p. 1; Roanoke Rapids and Gaston 2010, p. 2). Eel passage projects are in variable stages of planning and construction in other watersheds, including in the Potomac River watershed (Chesapeake Bay Field Office (CBFO) 2009, p. 1); at the Stevenson Dam on the Housatonic River and the Taftville Dam on the Shetucket River in Connecticut (Connecticut Department of Environmental Protection (CTDEP 2009, p. 4)); at the Millville, Warren, and Luray Dams on the Shenandoah River in West Virginia (Eyleret al.2008, slide 4; Welsh 2008, slide 22); in the Piedmont region of South Carolina (Rohdeet al.2008, p. 82); in the Santee River Basin in South Carolina (Santee River Basin Accord 2008, pp. 6-7); and in Quebec and Ontario Provinces, Canada (Verreaultet al. 2009b, p. 21). Although the success of ladder placement to minimize entrainment (the process by which aquatic organisms, suspended in water, are pulled through a pump or other device (Webster's On-line Dictionary, 2011)) is specific to each dam (McGrathet al.2009, p. 1), American eels can show a positive, quick response to the placement of ladders and use them to swim past/over barriers (Cairnset al.2008, p. 2; Schmidtet al.2009, p. 718).

Since 2007, more studies on the American eel's use of freshwater, estuarine, and coastal marine waters have been completed. These studies confirm that eels use all three habitat types (Dutilet al.,2009, pp. 1979, 1981; ICES 2009, p. 1) and that brackish (i.e.,estuarine waters) and salt water are important for American eel growth, in terms both of faster growth rates and larger size of individuals, andproductivity (Machutet al.2007, p. 1707; Jessupet al.2008, p. 210; Cairns 2009, p. 74; Fenske 2009, p. 75; ICES 2009, p. 1; Jessupet al.2009, pp. 867-868; Jessup 2010, p. 328). For example, Jessopet al.(2009, p. 866) found growth rates of 3.2 times greater in American eels that had resided primarily in estuarine waters than those that had resided only in freshwater. Lamsonet al.(2009, pp. 310, 312) found that on average, eels grew in length 2.2 times faster and gained weight 5.3 times faster in full-strength seawater than did freshwater residents (freshwater residents took 2.4 times longer to reach the silver eel stage). This rapid growth enhances many fitness-related aspects of fish demographics, including quicker progression to reproductive capability and decreased vulnerability to predators, hastening the single reproductive opportunity of these fishes (Cairnset al.2009, p. 2095). The mechanism behind, and the evolutionary advantage of, this rapid growth in saline environments (Cairnset al.2009, p. 2095) and the latitudinal variability in length and age at maturity of both males and females (Jessop 2010, p. 328) continues to intrigue researchers. While there is no indication that the importance of freshwater habitat for American eel has diminished, recent information shows that estuarine (brackish) areas also provide valuable American eel productivity partially due to the increased food availability and decreased exposure to natural and anthropogenic mortality (Lamsonet al.2009, p. 311). Some eels move between salt water and brackish water and between brackish water and freshwater several times within their lifetime prior to outmigration to the Sargasso Sea spawning grounds (Jessupet al.2008, p. 210; Thibaultet al.2007, p. 1106).

In summary, we find that the information provided in the petition, as well as baseline and other new information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to the present or threatened destruction, modification, or curtailment of the American eel's habitat or range. There is no evidence that additional freshwater habitat is being lost or modified rangewide beyond the already documented historical loss that was previously determined not to be a threat to the American eel. The new information indicates more freshwater habitat is becoming available to the American eel with the installation of upstream passage projects. In addition, information suggests that estuarine and coastal marine habitats are readily used by, and may be more important to, the American eel than previously thought. In our new 12-month status review, we will, however, further investigate any new information on habitat destruction, modification, or curtailment of the species' habitat or range in relation to current or projected population declines.

The petitioner asserts that American eels are commercially harvested at all juvenile and adult life stages and “it is undisputed that overutilization of American eel is now occurring across the species' range in the United States of America” (Petition, p. 22). The petitioner cites information from ASMFC (2000) and Geer (2004) that discuss reduction in commercial landings from the historical levels of the mid 1970s and 1950, respectively. The petitioner also cites information from the ASMFC Addendum II (2008) report and 2007 harvest data from State Compliance Reports (2008) that document eel fisheries in almost all States and overall landings of eels decreasing over time. The petitioner asserts that the ASMFC's own records show a failure to implement protective measures for American eels, including restriction or reduction of harvest levels, despite the “declines in abundance” (Petition, p. 23). The petitioner also asserts that there is a level of recreational harvest that also contributes to the decline of American eels (Petition, p. 23).

The information cited in the petition is a compilation of historical information available to, and considered by, the Service in our 2007 12-month finding, as well as more recent raw landing data from years after the 2007 12-month finding. For example, the following references available in the Service's files or provided by the petitioner were published since 2007 but summarized historical data sets, the results of which were already considered in the 2007 12-month finding: Susquehanna River Anadromous Fish Restoration Cooperative (SRAFRC) 2010, Clark 2009, DeLafontaineet al.2009, Mathers and Stewart 2009, Overton and Rulifson 2009, Weeder and Hammond 2009, Weeder and Uphoff 2009, MacGregoret al.2008, and Casselman and Marcogliese 2007. The ASMFC 2007 (petitioner's ASMFC 2008 citation) and ASMFC-AEPRT 2008 reports included raw landing data from 2007.

As explained in the Service's 2007 12-month finding, correlating landings data with long-term increases or decreases in American eel population trends is speculative at best, given the multifaceted analysis required. This analysis has not yet been conducted (72 FR 4967, p. 4986). To determine the impacts of commercial and recreational harvest at a population level, given the assumption that the American eel is panmictic, the following factors must be taken into account: “(1) The level of individuals [that] are not subjected to fishing pressure; (2) the theory that fishing of glass eels and elvers does not necessarily represent a substantial loss to reproductive capacity of the species; (3) the vast areas that remain unfished; and (4) the lack of evidence that there is a reduction in glass and elver recruitment rangewide” (72 FR 4967, p. 4986).

The petitioner states that the ASMFC Addendum II (petitioner's ASMFC 2008 citation, our ASMFC 2007 reference) indicates that recreational fishing of American eels stems from incidental bycatch by anglers, commercial bait for sport fish such as striped bass, and some amount of bait use by recreational fisherman (Petition p. 23). The ASMFC (2007, pp. 6-7) report does state that the NMFS Marine Recreational Fisheries Statistics Survey (MRFSS) for 2007 indicated that the recreational total catch was 139,731 American eel, which represented a large increase from the 2006 total of 85,969 American eel. However, the report goes on to state in a footnote to the catch data that the “MRFSS Data for American Eel are unreliable. 2005 Proportional Standard Error (PSE) values for recreational harvest in Rhode Island, New Jersey, Delaware, Maryland, Virginia, and South Carolina are 98.1, 100, 96.6, 70.1, 100.5, 100, and 79.1, respectively” (ASMFC 2007, p. 7). This means that the American eel recreational harvest data could be drastically under or over counted depending upon the potential for error.

We analyzed MRFSS information, available from 1981, as part of our 2007 12-month finding. Part of the data analysis included evaluating the reliability of the MRFSS data, especially given the margin for error noted in the ASFMC 2007 (p. 7) report. Our 2007 12-month finding stated that “recreational harvest is either limited or nonexistentthroughout most of the range of the American eel,” and described the source of the recreational harvest similarly to the petitioner's categories (72 FR 4967, p. 4986). The 2007 12-month finding went on to describe the low levels of recreational harvest throughout the American eel's range, the gear and catch restrictions put in place by the ASFMC member states to prevent unregulated recreational harvest, and the limited information about subsistence harvest and bycatch (72 FR 4967, p. 4987). Through our analysis, we concluded in the 2007 12-month finding that “there are no data to suggest that subsistence harvest, bycatch, and recreational harvest are having a significant impact on American eel regionally or rangewide” (72 FR 4967, p. 4987).

In addition to the ASMFC 2007 report, the outline of a Verreaultet al.(2009b) report indicates that some recreational harvest information for American eels in Canada may be available. However, the recreational harvest sections of the report for glass eel, yellow eel, and silver eel all state that there are “no data available” (Verreaultet al.2009b, pp. 5, 11).

In summary, at the time the petition was received, we had only the ASMFC 2007 report, which indicates that the little recreational harvest data that are available may be unreliable, and the Verreaultet al.2009b report, which indicates that there are no recreational harvest data available in Canada. Therefore, because there is no new information about the potential impact of ongoing commercial harvest, and monitoring and reporting of recreational harvest continues to be limited or nonexistent throughout the range of the American eel, the conclusion from the 2007 12-month finding that commercial and recreational harvest does not impact the American eel at the panmictic population level is reasonable. We will, however, further investigate commercial and recreational harvest impacts to the American eel in our new 12-month status review.

New models for estimating abundance of fish species are being developed, but due to the global and complex life-history traits of the American eel and the difficulties inherent in simulating those traits, as well as the models' assumption limitations, no reliable model for the American eel currently exists, especially one that relies on harvest (i.e.,landings) data (ASMFC-AEPRT 2008, p. 2; ASMFC-AESAS 2008a, pp. 9-11; Cairnset al.2008, p. 3; MacGregoret al.2008, p. 4; ASFMS-AETC&SAS 2009c, p. 8). The ASMFC (2008c, pp. 1-2) listed the need for a fishery-independent sampling program for yellow and silver eels as a high priority, as this information would give a more reliable indicator of population trends.

The petitioner's assertion that the ASMFC failed to implement protective measures for American eels, including restriction or reduction of harvest levels, despite the “declines in abundance” (Petition, p. 23), will be addressed under Factor D below.

In summary, we find that the information provided in the petition, as well as baseline and other new information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to overutilization of the American eel for commercial, recreational, scientific, or educational purposes. There is no evidence indicating that harvest of American eels may be a threat at the population level. While new population models are becoming available, the continued reliance on landings data remains problematic in determining accurate population trends. We will, however, further investigate new information regarding overutilization of the American eel for commercial, recreational, scientific or educational purposes in our new 12-month status review.

The petitioner asserts that the American eel is threatened byAnguillicola crassus,a parasite infesting the eel's swim bladder (an internal gas-filled organ that regulates a fish's buoyancy) (Petition, pp. 23-28). The swim bladder is used by the eel for vertical migration (defined as moving at different depths in the water column) during its spawning migration (Petition, p. 25). This parasite spread from its native host, Japanese eels (Anguilla japonica), to both the European (Anguilla anguilla) and American eel through the expanding eel trade between countries and the eel aquaculture industry (Petition, p. 23). The parasite infects an eel's swim bladder and causes damage to the swim bladder, potentially affecting the eel's ability to reach the spawning ground in the Sargasso Sea (Petition, p. 25). The petitioner cites studies by Aieta and Oliveria (2009) and Sokolowski and Dove (2006) documenting the spread ofA. crassusthroughout the American eel's range (Petition, pp. 24-25). The petitioner concludes that the effects ofA. crassus,in combination with the impacts of hydroelectric turbine mortality, contaminant accumulation, low fat stores, and commercial and recreational harvest, are causing fewer eels to reach their Sargasso Sea spawning grounds (Petition, p. 26). The petitioner also asserts that the results of experiments (Gollocket al.2005) conducted on European eels showing evidence of decreased survival rate of European eels infected withA. crassusand exposed to hypoxic (reduced oxygen) conditions (associated with warmer than normal water temperatures) can be extrapolated to American eels (Petition, p. 26). The petitioner also asserts that eels infected withA. crassusthat do survive the migration to the Sargasso Sea will not have the necessary fat stores to successfully reproduce because the eels may have used too much stored fat energy swimming with impaired swim bladders (Petition, p. 27). The petitioner also asserts the reduction in the number of eels reaching the spawning grounds will cause a long-term “allee effect” (an effect of population density on population growth, by which there is a decrease in reproductive rate at a very low population density and a positive relationship between population density and the reproduction and survival of individuals (Science-Dictionary.com 2011)) because eels will be unable to find mates (Petition, p. 28).

The petitioner did not assert that predation was a threat to the American eel.

The Service's 2007 12-month finding discussed the latest laboratory research on the negative effectsAnguillicola crassusinfection on European eel swim capacity. AlthoughA. crassusinfection causes physiological damage to the swim bladder, this damage is only a concern for silver eels during outmigration when buoyancy and depth control are needed for the presumed deepwater migration to the Sargasso Sea (72 FR 4967, p. 4988). The 2007 12-month finding also discussed the implications of this reduced swim capacity to outmigration and spawning of American eel, and concluded that there may be less of a potential impact fromA. crassusto American eel than to European eel (72 FR 4967, p. 4988). The 2007 12-month finding concluded that there was no apparent causal link between theA. crassusparasite in individual American eel and population-level effects, such as reduced recruitment of glass eels. However, the Service acknowledged that, because the effects of the parasite are difficult to study under naturalconditions, a level of uncertainty was inherent in our conclusion.

New information readily available to the Service since the 2007 12-month finding and prior to receipt of the petition provides, as the 12-month finding anticipated, evidence of a northerly extension ofAnguillicola crassusdistribution through New England to eastern Canada (Rockwellet al.2009, p. 483). Competing hypotheses continue as to whether colder temperatures will limit the spread of this parasite (Aieta and Oliveira 2009, p. 234; Sjoberget al.2009, p. 2167) and what effectA. crassusinfection has on the fat reserves required for successful migration (Petition, p. 26; Sjoberget al.2009, p. 2166). However, although new literature has been published since the 2007 12-month finding, some of these publications were based on research results that were considered in the 2007 12-month finding. Other new publications confirmed the presence ofA. crassusin a previously unexamined area of the Upper Potomac River drainage of the mid-Atlantic (Zimmerman and Welsh 2008, p. 34). The Service anticipated the spread ofA. crassusin the 2007 12-month finding. The current and anticipated impacts ofA. crassus,thus, were previously addressed (e.g.,Palstra 2007a). Therefore, the new validation of the northerly invasion is not substantial information because the current and anticipated impacts of the parasite on American eel were already analyzed at the species level.

The petitioner also asserts that new research states that the eel's vertical migrations are limited byAnguillicola crassus,and this may affect outmigration (Sjoberget al.2009, p. 2166). Reports such as Sjoberget al.(2009) and Chowet al.(2009), while published since the 2007 finding, merely confirm information from laboratory studies analyzed in the 12-month finding about the impacts ofA. crassuson silver eels' buoyancy and depth control during outmigration (72 FR 4967, p. 4988). Sjoberget al.(2009, pp. 2165-2166) reports it appears that more heavily infected European eels were relatively more vulnerable to recapture in pound nets; therefore, it is hypothesized by the authors that parasite-induced damage to the swim bladder inhibited vertical migrations, and infected European eels tended to migrate in shallower coastal waters, relatively close to the shore. Chowet al.(2009, pp. 257-258) captured two Japanese eels at depths of greater than 230 meters (m) (755 feet (ft)), confirming at least for Japanese eel what has been hypothesized for allAnguillicola,that migrations may occur at significant depths. The concern put forward by the petitioner is that, without a functioning swim bladder, such as those damaged byA. crassus,eels cannot make vertical migrations into or out of such depths. Because our 2007 12-month finding discussed the implications ofA. crassuson the American eel, the new validation ofA. crassusimpacts is not substantial information because the current and anticipated impacts of the parasite on American eel were already analyzed at the species level.

Other new information presented by the petitioner and in the Service's files suggests that physical barriers such as dams and natural waterfalls significantly reduceAnguillicola crassusinfection rates upstream (Machut and Limberg 2008, p. 13). In addition, recent genetic research into the population structure ofA. crassusindicates that the parasitic infestation likely arose from long-range transfers of infected eels during eel stocking (Wielgosset al.2008, p. 3491), which raises doubts about the petitioner's assertion ofA. crassusintroduction via ballast water.

The petitioner cited research by Gollocket al.(2005) asserting a generalized decreased survival rate due to heightened mortality ofAnguillicola crassusinfected eels under hypoxic conditions. However, these findings applied to eels living in Lake Balaton where dissolved oxygen may decrease rapidly overnight because of the cessation of photosynthesis by phytoplankton. Given the localized nature of this research, any extrapolation of these findings to population-level effects on American eel is speculative at best.

The petitioner, citing a paper discussing extinction risk of the polar bear, suggested that the infections byAnguillicola crassus,together with other threats, may limit the probability of American eels finding a mate in the vast Sargasso Sea and that this “allee effect” will edge the species closer to extinction (Petition, p. 28). The allee effect is a concept that has been discussed in relation to the European eel, which has experienced significant recruitment failure, but because there is no evidence that significant recruitment failure may be occurring with American eel, this new assertion is speculative. Attributing effects seen in European eel to American eel (e.g.,effects to spawning fromA. crassusinfection) was discussed in the 2007 12-month finding. There is no new available information either provided by the petitioner or found in the Service's files that alters the cautions in that finding against untempered transfer of information specific to the European eel, to the American eel.

There was no information provided by the petitioner or new information in our files concerning the effects of predation on the American eel population. The 2007 12-month finding stated that individual American eels are sometimes predated by birds of prey and piscivorous (fish-eating) fish, but this level of predation does not impact the species rangewide (72 FR 4967, p. 4987).

In summary, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to disease or predation. We will, however, further investigate new information regarding the population-level impacts ofA. crassusand predation on the American eel in our new 12-month status review.

In general, the petitioner asserts that the Service, NMFS, Federal Energy Regulatory Commission (FERC), U.S. Environmental Protection Agency (EPA), ASMFC, and Canada lack adequate regulatory mechanisms under existing authorities to protect the American eel (Petition, pp. 28-35). The petitioner cites a lack of follow-through on ASMFC's stated need for a stock assessment, the Service's and NMFS' lack of specificity in their FY 2007-2011 strategic plan and “Our Living Oceans” documents, respectively (Petition, p. 28). The petitioner asserts an under-reporting of the number of structures serving as barriers to American eels and lack of “systematic effort to alleviate the threat of dams” (Petition, p. 29), as well as a failure of existing regulatory mechanisms to address the decline of American eels (Petition, p. 32).

Specifically, the petitioner asserts there is inadequate regulation of hydroelectric power dams via implementation of legal authorities under the Federal Power Act on the part of the Service, NMFS, and FERC, and via implementation of the Clean Water Act on the part of the EPA (Petition, p. 32). The petitioner asserts these Federal agencies have failed to provide “safe and efficient upstream and downstream passage for American eels at hydroelectric dams in the historic range of the American eel in the United States.”

The petitioner also asserts the EPA has failed to adequately regulate the disposition of ballast water under the Clean Water Act, which has led to the spread ofAnguillicola crassus.The petitioner cites several information sources suggesting that the discharge of ballast water is a likely mechanism for the spread ofA. crassusthrough intermediary hosts, as well as numerous other invasive species (Petition, p. 34). The petitioner asserts that the Service did not address ballast water disposition in the 2007 12-month finding.

The petitioner also asserts that the ASMFC has failed to limit or prohibit the harvest of American eel on the Atlantic seaboard through their legal authorities under the Magnuson-Stevens Fisheries Conservation Act despite ASMFC's statement in 2004 recommending the Service and NMFS consider protection of the American eel under the Endangered Species Act (Petition, p. 34).

The petitioner states that the Service's Region 5 Fiscal Years (FYs) 2007-2011 Strategic Plan and NMFS' Our Living Oceans documents do little to demonstrate the agencies' “systematic effort to alleviate the threat of dams to eels,” and quotes information from those two documents as it pertains to the importance of habitat restoration. Because strategic plans for FYs 2007 to 2011 do not exist, we assume that the petitioner meant to cite the Northeast Region (i.e.,Region 5) Fisheries Program Strategic Plan for FYs 2004-2008 (Service 2004b) or FYs 2009-2011 (Service 2009). That said, strategic plans are broad-vision documents meant to provide the general framework and goals for separate stepped-down operational plans, which have the specificity that the petitioner notes the strategic plan lacks. For example, a strategic plan may recommend the need for research and modeling to determine the optimal path to achieve a specific goal. One such model is the habitat suitability index (HSI) discussed by Kocovskyet al.(2008), which prioritizes the temporal sequence of dam removal in the Susquehanna River based on suitable habitat conditions for target fish species, including the American eel. Because they do not prescribe any specific actions, the strategic plans do not constitute regulatory mechanisms, and are not analyzed as such. The Factor A section of the 2007 12-month finding (72 FR 4967, p. 4983) concluded the present or threatened destruction, modification, or curtailment of the American eels' habitat or range is not a significant threat to the American eel rangewide and the Factor A section of this 90-day finding above concludes there is no substantial information indicating this may be a significant threat now.

The petitioner asserts that the EPA has failed to adequately regulate the disposition of ballast water under the Clean Water Act, which has lead to the spread ofAnguillicola crassus.The petitioner states, “Numerous authors, as well as panelists in the 2004 FWS sponsored workshop, pointed out that ballast water of ships is the most likely mechanism for the rapid spread of the parasite from one location to another, through the dispersal of its intermediate hosts” (Petition, p. 34). As explained above under Factor C, recent genetic research into the population structure ofA. crassusindicates that the parasitic infestation likely arose from long-range transfers of infected eels during eel stocking (Wielgosset al.2008, p. 3491). This genetic research was completed after the 2007 12-month status review, but took into account information from the 2004 Service workshop referenced by the petitioner. In addition, Factor C in the 2007 12-month finding concluded that disease is not a significant threat to the American eel rangewide and the Factor C section of this 90-day finding above concludes there is no substantial information indicating this may be a significant threat now. Therefore, there is no substantial information on the inadequacy of existing regulatory mechanisms associated with disease.

The petitioner asserts that ASMFC failed to limit or prohibit the harvest of American eel on the Atlantic seaboard through their legal authorities under the Magnuson-Stevens Fisheries Conservation Act: “The ASMFC has done little over the past decade effectively to reverse the declines in eel recruitment, halt commercial [fishing] and commercial take of American eels for recreational use as bait, or implement consistent methods to accurately assess their population size (ASMFC 2008; Tayloret al.2008).” The petitioner's Tayloret al.2008, citation is the same document discussed below with the ASMFC-AERPT 2008 citation; however, we disagree with the conclusion the petitioner draws from this document. The ASMFC-AERPT (2008, pp. 2-5) document reaffirms the 2007 12-month finding's conclusion that using harvest data to determine abundance is problematic (p. 1); reports that all States that harvest American eel have gear or size limit restrictions in place to regulate the harvest (pp. 4-5); identifies high-priority research needs (p. 6); discusses the ASMFC Appendix II (petitioner's ASMFC 2008 citation, our ASFMC 2007 reference), which emphasizes improving upstream and downstream passage, and the decision to delay in implementing further gear and size restrictions pending the outcome of the (delayed) 2010 stock assessment (p. 7); discusses the planned Memorandum of Understanding between ASMFC and the Great Lakes Fisheries Commission to improve joint management of the American eel (p. 7); and reports that all States are in compliance with implementing the requirements of the American Eel Fisheries Management Plan (p. 8). This summary list illustrates that ASMFC is working with the States to implement conservation actions to limit eel harvests, identify current and future research priorities, and manage the eel fishery by using the available information appropriately (i.e.,not using harvest data to determine abundance). Therefore, we find the petitioner's assertion to be without merit. In addition, the Factor B section of the 2007 12-month finding (72 FR 4967, p. 4987) concluded that overutilization for commercial, recreational, scientific, or educational purposes is not a significant threat to the American eel rangewide, and the Factor B section of this 90-day finding above concludes there is no substantial information indicating this may be a significant threat now.

Factor D of the Service's 2007 12-month finding (72 FR 4967, pp. 4990-4991) extensively analyzed the existing regulatory mechanisms that address fish passage. The discussions of hydropower turbines in Factor E of the Service's 2007 12-month finding (72 FR 4967, p. 4991) and below in this 90-day finding acknowledge that American eels experience some mortality at hydroelectric power plant turbines. However, the 2007 12-month finding concluded that mortality of individuals, even thousands of individuals each year, while unfortunate, is not at a level that is a threat to the American eel population rangewide. The Factor E section of this 90-day finding below finds that there is not substantial information to indicate that this may be a significant threat now. The petitioner asserts that the Service, NMFS, and FERC have declined to exercise their regulatory authorities under the Federal Power Act. The petitioner did not, however, provide any information under Factor D on how these agencies have failed to exercise their regulatory authorities. As explained further in Factor E below, several studies haverecommended modifications to hydropower facilities for safer downstream eel migration (Carr and Whoriskey 2008, p. 399; Durif and Elie 2008, pp. 135-136), and some facilities already implement these modifications (Service 2007a, pp. 3-4; Eyler 2009, p. 2; Service 2009, pp 6-10; Verreaultet al.2009a, p. 21) with variable levels of success. Factor D of the Service's 2007 12-month finding (72 FR 4967, p. 4991) concluded that “turbines can cause regional impacts to abundance of American eels within the watershed, but there is no evidence that turbines are affecting the species at a population level (for full discussion of turbine impacts see Factor E). Therefore we find that the regulations governing fish passage are adequate for the protection of American eel.”

We have no information in our files or provided by the petitioner on any regulatory mechanisms to address the threat of changes in oceanic conditions due to climate change discussed in Factor E below. We will, however, further investigate this in our new 12-month status review.

As discussed in Factor E below, we have no information indicating that electro-magnetic fields, acoustic disturbance, and the harvest of seaweed for biofuel are significant threats to the American eel. We will, however, further investigate these activities and regulatory mechanisms in our new 12-month status review.

In summary, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to the inadequacy of existing regulatory mechanisms. We will, however, further investigate new information regarding existing regulatory mechanisms for the American eel in our new 12-month status review.

The petitioner asserts that Atlantic seaboard river systems are the “sole migratory pathways for female American eels to gain access to their required freshwater habitat” (Petition, p. 35). The petitioner states both upstream (discussed under Factor A) and downstream river habitat used by American eels are fully or partially blocked by numerous hydroelectric power dams and the impact of those dams (i.e.,turbine mortality) has a disproportionate impact on female American eels and recruitment of the species (Petition pp. 35-36, 38). The petitioner cites the Buschet al.(1998) paper, which states that of the 15,570 dams blocking America eel habitat in the United States, 1,100 of these dams are used for hydroelectric power. The petitioner further asserts that few of these 1,100 dams provide safe passage for migrating female American eels, which results in the death of virtually all female eels attempting to migrate. The petitioner also cites other papers that include information about dam-specific mortality rates (Petition, pp. 37-38). All of these cited papers were published prior to, and considered in, the Service's 2007 12-month finding.

The petitioner also asserts that changes in oceanic conditions resulting from global warming (i.e.,climate change) are contributing to the worldwide decline of eel species, including the American eel (Petition, p. 38). The petitioner asserts that changes in sea surface temperature (SST) and shifts in latitudinal isotherms (a line that connects points on a map that have the same temperature) are impacting the productivity of the eel's spawning area, changing the northern extent of the Sargasso Sea spawning area, and affecting the transportation and survival rates of leptocephali (Petition, p. 38). The petitioner, citing new research related to the European eel, asserts that this new information could also apply to the American eel. For example, citing Friedlandet al.'s (2009) conclusion that changes in SST are impacting transportation and larval retention (amount of time the larvae stay in the current) of European eels, the petitioner asserts that, given the close proximity of the two spawning areas in the Sargasso Sea, this change in SST could also affect American eels (Petition, pp. 38-39). Citing Bonhommeauet al.(2008), the petitioner asserts that the authors linked global warming to eel declines via decreased productivity and recruitment. The petitioner asserts the “worldwide recruitment decline in freshwater anguillid populations began almost simultaneously in the 1980s. While there are many factors that have contributed to this decline, recent analyses point to oceanic changes as being the more likely factor driving this trend (Bonhommeauet al.2008, Friedlandet al.2007” (Petition, p. 39). The petitioner also asserts that although the American eel may have been resilient to environmental changes throughout its evolutionary history, the rapid changes in the ocean environment combined with the ongoing impacts of habitat loss, hydroelectric dams, harvest, contaminants, andAnguillicola crassusinfection, are beyond American eel's adaptability (Petition, p. 39).

The petitioner also asserts unspecified threats to the American eel from exposure to mercury, PCBs (polychlorinated biphenyls), and DDT (dichlorodiphenyltrichloroethane). The petitioner cites reports from the ASMFC (2000) and the Vermont Fish and Wildlife Department (2008) documenting the presence of these contaminants in eel samples. The petitioner also mentions elevated levels of mercury in streams from coal-burning electric power generators and acid rain causing stream acidification and fish kills (Petition, p. 40); however, the petitioner neither provides citations for this information nor explains how it demonstrates a threat to American eel.

Lastly, the petitioner asserts that electro-magnetic fields from submarine cables, acoustic disturbance from offshore wind development, and biofuel production from floating biomass (including sargassum) harvested from gyres in the open ocean are emerging threats to the American eel. Although the petitioner provided citations for the acoustic disturbance from off-shore wind development (Ohamet al.2007) and biomass harvesting (Markels 2009), the petitioner did not explain how any of these factors poses a threat to the American eel (Petition, p. 40).

The petitioner discussed the results from a selection of citations on the effects of hydropower turbines, most of which were assessed for, but may not have been specifically cited in, the Service's 2007 12-month finding. While some of these citations may have been published after the 2007 12-month finding, the data the citations examine are either from prior to the 2007 12-month finding or merely describe an additional year of data in an ongoing study. Therefore, we conclude that this type of information in the petitioner's referenced citations offers no significant, additional value for this 90-day finding. In the Service's 2007 12-month finding, the range and rates of impacts from various turbine types to various sizes of eels (see synopsis of the Electric Power Research Institute report at 72 FR 4967, pp. 4991-4992) were thoroughly analyzed and discussed. Contrary to the assertions of the petitioner that virtually all female eels attempting to migrate are killed, the 2007 12-month finding found rates ofmortality ranging from 25 to 50 percent when one turbine is encountered during outmigration, and 40 to 60 percent when one or more turbines are encountered (72 FR 4967, p. 4992). This level of mortality, the 2007 12-month finding explains, leaves escapement values (the percent of individuals that survive to continue outmigration) of a minimum of 40 percent and a maximum of 75 percent. The 2007 12-month finding states that only 4.5 percent of the 33,663 dams on the Atlantic coast have hydropower, leaving significant areas of freshwater habitat turbine-free, and that the portion of the population that inhabits estuarine and marine waters is largely unaffected. The 2007 12-month finding concluded that, although mortality from turbines is evident and can be substantial in some cases, there is no evidence that this mortality is a significant threat to the American eel at a rangewide population level (72 FR 4967, p. 4992).

New information in the Service's files continues to support the escapement figures presented in the 2007 12-month finding. Research conducted in 2007 and 2008 on the Shenandoah River in the mid-Atlantic region showed a 47 percent survivorship of eels that migrate out of the Shenandoah River from above the Shenandoah Dam. The study also identified decreased mortality during the seasonal shutdown of the hydropower facility that was designed to protect downstream migrating eels. However, 64 percent of migrants moved downstream outside the recommended seasonal shutdown period, suggesting that additional revisions to dam operations could improve these mitigation efforts (Welshet al.2009, p. 20). Ongoing research continues to improve such mitigation efforts through improving escapement rates. Research also continues on the influence of environmental variables (such as stream flow, water temperature, and lunar phase) on downstream migration (Jansenet al.2007, pp. 1442-1443; Hammond and Welsh 2009, pp. 319-320; Welshet al.2009, pp. 20-22). This work will inform turbine operations and the assessment of success rates of other mitigation measures, such as controlled spillage, diversions, and trap and transport of silver eels downstream of hazards such as turbines (McCarthyet al.2008, p. 122). While the results of this research may further improve downstream passage for American eels, there is no information in our files indicating that the level of existing downstream passage may be a threat to the overall population of the American eel rangewide.

In addition to turbine mortality, several papers have documented individual eels exhibiting altered search pattern behavior when physically encountering power plant facilities (i.e.,bar racks, bypass structures, etc.) (Jansenet al.2007, pp. 1440-1442; Carr and Whoriskey 2008, p. 397; Durif and Elie 2008, p. 208; Eltzet al.2008, p. 29; Brownet al.2009, p. 285; Calleset al.2010, pp. 2175-2178). This search pattern behavior has delayed (hours to weeks) some eels' outmigration. As described above in the hydropower turbine section, a significant number of eels successfully migrate, and migration occurs in a normal temporal sequence. While delayed migration occurs in some individuals, there is no information in our files indicating that this may be a threat to the overall population of American eel rangewide.

The Service's 2007 12-month finding explored the relationship between oceanic conditions and the successful maturation and transportation of leptocephali within ocean currents from the Sargasso Sea and, therefore, recruitment of glass eels at coastal and riverine habitats. We stated that oceanic conditions, which are highly variable and cyclical, likely play a significant role in the population dynamics of the American eel (72 FR 4967, p. 4995), but at the time of the 2007 status review, the relationships between specific oceanic conditions and eel recruitment remained almost entirely hypothetical. We acknowledged that our information was scant and, therefore, turned to oceanic and eel experts to better understand the complex relationships between various oceanic conditions and eel recruitment.

The types of oceanic conditions that had the potential to affect eels in the North Atlantic, we stated, include: “(1) changes to sea surface temperatures (SSTs); (2) changes to mixed layer depth (MLD) (the depth to which mixing is complete, relative to the layer of ocean water beneath it); (3) deflections of the Gulf Stream at the Charleston Bump, off Cape Hatteras; and (4) other changes (72 FR 4967, p. 4994).” Changes in SSTs include inhibition of spring mixing, and nutrient recirculation and productivity, which may influence leptocephali (i.e.,larval) food abundance (72 FR 4967, pp. 4994-4995). We concluded that there was no indication that the American eel was suffering rangewide abundance or distributional collapse and the species was evolutionarily adapted to oceanic variations (at the time, thought to be within normal variations). Therefore, there was “no indication that the American eel was at a reduced level where this natural oceanic variation would significantly affect the species” and “natural oceanic conditions were not currently, or anticipated to be in the future, a significant threat to the American eel at a population level” (72 FR 4967, p. 4995).

Since the 2007 12-month finding, and prior to receipt of the petition, additional research has been conducted on the effects of climate change on oceanic conditions and the correlation of those changes to European and American eel recruitment. The impacts of climate change may be affecting European and American eel recruitment in three ways: (1) Shifts in spawning locations within the Sargasso Sea, (2) reduced food availability for leptocephali, and (3) shifts in where the leptocephali enter and exit the ocean currents to their continental habitats.

With regard to spawning locations, in March 2007, after the publication of the 2007 12-month finding, Friedlandet al.(2007, pp. 1, 6) published correlative data indicating that climatic changes in the Sargasso Sea may be influencing oceanic reproduction and larval (i.e.,leptocephali) survival in European eels. The authors found evidence of a northern shift in the temperature front that defines the northern boundary of the European eel spawning ground within the Sargasso Sea, which “may affect the location of spawning areas by silver eels and the survival of leptocephali during the key period when they are transported towards the Gulf Stream.” Friedlandet al.(2007, p. 6) stated: “Our finding provides evidence of linkages between declines in recruitment of the European eel and specific environmental changes [thermal, wind, and mixing parameters] within the spawning and early larval development areas of eels in the Sargasso Sea.” Their analysis went on to suggest that a number of oceanic condition parameters have changed in the Sargasso Sea and, because of the proximity of spawning areas of European and American eel, they hypothesized that American glass eel recruitment could also be affected (Friedlandet al.2007, pp. 7-10).

With regard to larval food availability, in 2008, Bonhommeauet al.(2008a, 2008b) published two papers that causally linked fluctuations in European, American, and Japanese glass eel recruitment, as measured on arrival to continental waters, to larval food availability. Larval food availability impacts the survival of larvae during their ocean migration from the Sargasso Sea to continental waters. The authorsexamined the relationships between glass eel recruitment (measured at the Loire River in France for European eels and Little Egg inlet in New Jersey and Beaufort inlet in North Carolina for American eels) and marine primary production (PP) (the production of organic compounds from atmospheric or aquatic carbon dioxide) in the Sargasso Sea spawning areas. In this study, PP was used as a proxy for leptocephali food availability. Bonhommeauet al.(2008b) found that SST influences PP and that, specifically in the Sargasso Sea, increasing SSTs led to a decrease in PP (i.e.,a decrease in eel food availability). Therefore, Bonhommeauet al.(2008b) theorized, the warmer the Sargasso Sea, the lower the European and American eels' recruitment. Bonhommeauet al.(2008b, p. 75) stated that fluctuations in the Sargasso Sea SSTs followed the same trends as anomalies of temperature across the Northern Hemisphere, which suggested a direct link between global warming and the increase in SST. They concluded by suggesting that a subtle increase in temperature may have dramatic effects on leptocephali, given the length of their oceanic migration.

Also with regard to larval food availability, Milleret al.(2009, pp. 235-238) state that although Anguillid eel populations can likely survive wide-ranging changes in oceanic and continental climates (given that Atlantic eels (European and American eels) have survived ice ages), the current lower recruitment levels (which may be explained in part by oceanic conditions) put the European eel at risk. The authors conclude with “If increases in temperature reduce productivity enough to affect the feeding success of leptocephali, then a continued global warming trend is an additional concern” (p. 245).

With regard to shifts in leptocephali transport by currents, recent research results for the Japanese eel indicate that the latitudinal (north to south) location of spawning events can shift depending on oceanic conditions, and subsequently have the potential to negatively affect coastal glass eel recruitment (Tsukamoto 2009, p.1846). Citing Kettle and Haines (2006) and Friedlandet al.(2007), Tsukamoto states that the exact spawning location of the European eel and consequently the American eel since the two species share the same spawning ground, also appears to have the potential to affect where larvae may eventually recruit as glass eels in their respective continental waters. In the Sargasso Sea, the temperature front at the northern edge of the spawning area for the American eel and the European eel appears to have been moving to the north in recent years and this may cause the silver eels to spawn slightly farther north. Shifting spawning grounds may affect where leptocephali enter and subsequently leave the ocean currents used for dispersal and may, therefore, negatively affect coastal recruitment of American eels (Tsukamoto 2009, p. 1846).

The Intergovernmental Panel on Climate Change (IPCC) 2007 synthesis report provides an “integrated view of climate change as the final part of the IPCC's Fourth Assessment Report” (IPCC 2007, p. 26). The synthesis report covers several topics including the observed changes in climate and effects on natural and human systems, causes (e.g.,anthropogenic vs. natural) of the observed changes, and projections of future climate change and related impacts under different scenarios. The IPCC defines climate change as “a change in the state of the climate that can be identified (e.g.,using statistical tests) by changes in the mean and/or the variability of its properties, and that persists for an extended period, typically decades or longer. It refers to any change in climate over time, whether due to natural variability or as a result of human activity” (IPCC 2007, p. 30).

The IPCC 2007 report unequivocally states that there is a warming of the climate system as evidenced by observed increases in global average air and ocean temperatures (p. 30), that the increase in anthropogenic greenhouse gas (GHG) concentrations are very likely the cause of increased global average temperatures since the mid-20th century (p. 39), and that “for the next two decades a warming of about 0.2 °C per decade is projected for a range of SERS [Special Report on Emission Scenarios] emission scenarios. Even if the concentrations of GHG and aerosols had been kept constant at year 2000 levels, a further warming of about 0.1 °C per decade would be expected. Afterwards, temperature projections increasingly depend on specific emission scenarios” (p. 45). While there is uncertainty when applying the global IPCC findings at some regional scales, the general conclusions stated above are fairly robust (IPCC 2007, pp. 72-73). This climate change information, coupled with the suggested impacts on sea conditions and coastal eel recruitment, is substantial enough to find that it may pose a significant threat to the American eel. We will fully investigate all climate change information, including any regional scale data, in our 12-month status review.

The findings stated by Bonhommeauet al.(2008a, 2008b), Friedlandet al.(2007), Milleret al.(2009) and Tsukamoto (2009), coupled with the climate change projections indicating continued, accelerated rates of human-induced temperature increases into the future (IPCC 2007), may change our 2007 12-month finding's (72 FR 4967, p. 4995) conclusion. Specifically, these findings may change our previous conclusion that current and projected oceanic conditions are within normal variations to which the American eel is evolutionarily adapted (i.e.,one of the conclusions discussed in the second paragraph of this section “Changes in Oceanic Conditions Due to Climate Change”). Therefore, we find that information provided by the petitioner and information in our files present substantial information with regard to the potential for global warming to affect the status of the American eel in the future.

We found the petitioner did not provide any substantive new information regarding contaminants affecting the American eel population. The Service's 2007 12-month finding discussed and analyzed the impacts of existing contaminants, new and emergent contaminants, other persistent and nonpersistent contaminants, complex mixtures of contaminants, vitamin deficiency, and combined threats such as disease, parasite infection, and contaminants on the American eel population (72 FR 4967, pp. 4992-4994). In summary, contaminants may impact individual or local populations of American eel. However, we cautioned against extrapolating preliminary laboratory studies to rangewide implications, given the lack of evidence of correlations between known contamination of specific river systems and corresponding localized declines (72 FR 4967, p. 4994). Dittmanet al.(2009, p. 48) documented PBDE (polybrominated diphenyl ether) contaminants in some American eels, but the authors noted that these contaminants were in lower concentrations than previously discussed PCBs and had unknown effects. In addition, the Deepwater Horizon (Mississippi Canyon 252) oil well blowout and uncontrolled oil release began 10 days prior to the receipt of CESAR's petition. We have no information about the possible impacts of the oil release on American eels at a population level; however, we will evaluate any new information regarding potential impacts to the species during our status review. In summary, whilewe did have information on contaminants occurring in individual eels, this is not substantive information on the effects of contaminants on the overall American eel population.

Although the petitioner asserted effects to the American eel from electro-magnetic fields, acoustic disturbance, and the harvest of seaweed for biofuel, the petitioner did not provide any data and we have no information in our files to support the claims. Therefore, we find the assertions to be speculative and not a sufficient basis to conclude that any of these may pose a significant threat to the American eel.

We find that the information provided in the petition, as well as other new information in our files, presents substantial scientific or commercial information indicating that the petitioned action may be warranted by a causal link between oceanic changes (increasing sea surface temperature with a corresponding shift in spawning location, decrease in food availability, or shift in leptocephali transport by currents, tied to global warming) and decreasing glass eel recruitment. We will further explore any current or future population level impacts that may result from climate change in our new 12-month status review. However, we find that the information provided in the petition, as well as baseline and other new information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to hydropower impacts, contaminants, electro-magnetic fields, acoustic disturbance, or the harvest of seaweed for biofuel. Information in our files and in the petition does not present new information to change the Service's previous conclusion in the 2007 12-month finding that hydropower and contaminants are not significant threats to the American eel population. We will, however, investigate any new information regarding Factor E threats that arises during the course of our new 12-month status review.

On the basis of our determination under section 4(b)(3)(A) of the Act, we determine that the petition presents substantial scientific or commercial information indicating that listing the American eel throughout its entire range may be warranted. This finding is based on information provided under factor E (changes in oceanic conditions due to climate change). We determine that the information provided under factors A (habitat loss, degradation or curtailment of habitat or range), B (overutilization for scientific, commercial, or educational purposes), C (disease or predation), D (inadequacy of existing regulatory mechanisms), and E (hydropower turbines, contaminants, electro-magnetic fields, acoustic disturbance, or seaweed harvesting) is not substantial.

Because we have found that the petition presents substantial information indicating that listing the American eel may be warranted, we are initiating a status review to determine whether listing the American eel under the Act is warranted.

The “substantial information” standard for a 90-day finding differs from the Act's “best scientific and commercial data” standard that applies to a status review to determine whether a petitioned action is warranted. A 90-day finding does not constitute a status review under the Act. In a 12-month finding, we determine whether a petitioned action is warranted after we have completed a thorough status review of the species, which is conducted following a “substantial” 90-day finding. Because the status review may provide additional information, and because the Act's standards for 90-day and 12-month findings are different, as described above, a “substantial” 90-day finding does not mean that the status review will result in a “warranted” finding.

A complete list of references cited is available on the Internet athttp://www.regulations.govand upon request from the Northeast Regional Office (seeFOR FURTHER INFORMATION CONTACT).

The primary authors of this notice are the staff members of the Northeast Regional Office.

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires each regional fishery management council to submit any fishery management plan or amendment to NMFS for review and approval, disapproval, or partial approval. The Magnuson-Stevens Act also requires that NMFS, upon receiving a plan or amendment, publish an announcement in theFederal Registernotifying the public that the plan or amendment is available for review and comment.

The FMP being revised by this amendment was prepared by the Councils and implemented through regulations at 50 CFR parts 622 under the authority of the Magnuson-Stevens Act.

The 2006 revisions to the Magnuson-Stevens Act require that by 2011, for fisheries determined by the Secretary to not be subject to overfishing, ACLs and AMs must be established at a level that prevents overfishing and helps to achieve optimum yield (OY). These mandates are intended to ensure fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems. Guidance also requires fishery management councils to establish a control rule to determine allowable biological catch (ABC).

Currently two migratory groups of king mackerel and Spanish mackerel are established; the Gulf migratory group and the Atlantic migratory group. The Gulf Council determines management measures for the Gulf migratory groups and the South Atlantic Council determines management measures for the Atlantic migratory groups.

Actions in Amendment 18 would remove four species from the FMP; modify the framework procedures; establish two migratory groups for cobia; and establish ACLs, ACTs, and AMs for each migratory group of king mackerel, Spanish mackerel, and cobia. In addition, Amendment 18 would set allocations and establish control rules for Atlantic group cobia and revise definitions for management thresholds for Atlantic migratory groups.

Species currently in the FMP include king mackerel, Spanish mackerel, cobia, cero, little tunny, dolphin, and bluefish (Gulf only). At present, only king mackerel, Spanish mackerel, and cobia have associated Federal regulatory text; the other species are in the FMP for data collection purposes only. Even though dolphin are in the Coastal Migratory Pelagic FMP, in the Atlantic they are managed under a different FMP. Amendment 18 proposes to remove cero, little tunny, dolphin, and bluefish from the Coastal Migratory Pelagic FMP. The Councils and NMFS have determined these species are not in need of Federal management at this time. If landings or effort change for any of these species and the Councils determine management at the Federal level is needed, these species could be added back into the FMP at a later date.

Although there is mixing of cobia from the Gulf and the Atlantic, scientific data indicate there are at least two separate migratory groups in the Gulf and Atlantic. Amendment 18 would establish two migratory groups for cobia with the boundary at the line of demarcation between the Gulf exclusive economic zone (EEZ) and the South Atlantic EEZ. ACLs and AMs would be established separately for each group by the responsible Council.

The Councils accepted ABC control rules for Gulf migratory groups of king mackerel, Spanish mackerel, and cobia, and for the Atlantic migratory group of cobia, based on the control rule recommended by the Gulf Council's Scientific and Statistical Committee (SSC). They accepted ABC control rules for Atlantic migratory groups of king mackerel and Spanish mackerel based on the control rule recommended by the South Atlantic Council's SSC. For all species, Amendment 18 proposes ACLs equal to the ABC. For purposes of tracking the ACL for king and Spanish mackerel, landings will be evaluated based on the commercial fishing year. Recreational landings for all Atlantic species will be evaluated based on a moving multi-year average of landings, as described in the FMP.

For Gulf migratory group king mackerel, Amendment 18 proposes separate ACLs and AMs for the commercial and recreational sectors based on sector allocations. The commercial sector would close by zone, subzone, or gear type when the commercial quota for the applicable zone, subzone, or gear type is reached or is projected to be reached. In addition, current trip limit adjustments would remain in place. For the recreational sector, the NMFS Regional Administrator would have the authority to reduce the bag and possession limit to zero if the recreational allocation (recreational ACL) is reached or projected to be reached.

For Atlantic migratory group king mackerel, Amendment 18 proposes separate ACLs for the commercial and recreational sectors based on sector allocations. Amendment 18 also proposes a stock ACL and an ACT for the recreational sector. The commercial sector would close when the commercial ACL is reached or projected to be reached. For the recreational sector, if the stock ACL is exceeded in any year, the bag limit would be reduced the next fishing year by the amount necessary to ensure that recreational landings may achieve the recreational ACT, but do not exceed the recreational ACL in the following fishing year. A sector specific payback would be assessed if Atlantic migratory group king mackerel are determined to be overfished and the stock ACL is exceeded.

For Gulf migratory group Spanish mackerel, Amendment 18 proposes stock ACLs and AMs. Both the commercial and recreational sectors would close when the stock ACL is reached or projected to be reached.

For Atlantic migratory group Spanish mackerel, Amendment 18 proposes separate ACLs for the commercial and recreational sectors based on sector allocations. Amendment 18 also proposes an ACT for the recreational sector. The commercial sector would close when the commercial quota is reached or projected to be reached. In addition, current trip limit adjustments would remain in place. For the recreational sector, if the stock ACL is exceeded in any year, the bag limit would be reduced the next fishing year by the amount necessary to ensure recreational landings may achieve the recreational ACT, but do not exceed the recreational ACL in the following fishing year. A sector specific payback would be assessed if the Atlantic migratory group Spanish mackerel are determined to be overfished and the stock ACL is exceeded.

For Gulf migratory group cobia, Amendment 18 proposes stock ACLs and AMs. A stock ACT is proposed that is 90 percent of the ACL. Both the commercial and recreational sectors would close when the stock ACT is reached or projected to be reached.

For Atlantic migratory group cobia, Amendment 18 proposes separate ACLs for the commercial and recreational sectors based on sector allocations. Because sector allocations do not currently exist for cobia, the amendment proposes an allocation of 8 percent of the ACL for the commercial sector and 92 percent of the ACL for the recreational sector, based on landings. Amendment 18 also proposes an ACT for the recreational sector.

The commercial sector would close when the commercial ACL is reached or projected to be reached. For the recreational sector, if the stock ACL is exceeded in any year, the fishing season would be reduced the following year by the amount necessary to ensure recreational landings may achieve the recreational ACT, but do not exceed the recreational ACL in the following fishing year. A sector specific payback would be assessed if Atlantic migratory group cobia are determined to be overfished and the stock ACL is exceeded.

Amendment 18 would revise definitions of maximum sustainable yield, OY, minimum stock size threshold and maximum fishing mortality threshold for Atlantic migratory group king mackerel, Spanish mackerel, and cobia.

To facilitate timely adjustments to harvest parameters and other management measures, the Councils have added the ability to adjust ACLs and AMs, and establish and adjust target catch levels, including ACTs, to the current framework procedures. The proposed addition of other management options into the framework procedures would also add flexibility and the ability to more timely respond to certain future Council decisions through the framework procedures.

A proposed rule that would implement measures outlined in Amendment 18 has been received from the Councils. In accordance with the Magnuson-Stevens Act, NMFS is evaluating the proposed rule to determine whether it is consistent with the FMP, the Magnuson-Stevens Act, and other applicable law. If that determination is affirmative, NMFS will publish the proposed rule in theFederal Registerfor public review and comment.

Comments received by November 28, 2011, whether specifically directed to the amendment or the proposed rule, will be considered by NMFS in its decision to approve, disapprove, or partially approve the amendment. Comments received after that date will not be considered by NMFS in this decision. All comments received by NMFS on the amendment or the proposed rule during their respective comment periods will be addressed in the final rule.