35554 Federal Register / Vol. 63, No. 125 /Tuesday, June 30, 1998 / Proposed Rules

under the Paperwork Reduction Act. (44

U.S.C. 3501 et seq.).

Federalism

The Coast Guard has analyzed this

revised proposal under the principles

and criteria contained in Executive

Order 12612, and has determined that

this proposal does not have sufficient

federalism implications to warrant the

preparation of a Federalism Assessment.

Environmental Assessment

The Coast Guard considered the

environmental impact of this revised

proposal and has determined pursuant

to section 2.B.2.a (CE #32(e)) of

Commandant Instruction M16475.1C,

that this action is categorically excluded

from further environmental

documentation. A categorical exclusion

determination for this rulemaking is

available in the public docket for

inspection and copying.

List of Subjects in 33 CFR Part 117

Bridges.

In consideration of the foregoing, the

Coast Guard proposes to amend 33 CFR

part 117 as follows:

PART 117—[AMENDED]

1. The authority citation for part 117

continues to read as follows:

Authority: 33 U.S.C. 499; 49 CFR 1.46; 33

CFR 1.05–1(g); section 117.255 also issued

under the authority of Pub. L. 102–587, 106

Stat. 5039.

2. In § 117.261 revised paragraphs (u),

(v) and (w) to read as follows:

§ 117.261 Atlantic Intracoastal Waterway

from St. Mary’s River to Key Largo.

* * * * *

(u) Flagler Memorial (SR A1A) bridge,

mile 1021.9 at Palm Beach. The draw

shall open on signal; except that from

October 1 to May 31, Monday through

Friday except Federal holidays, from

7:30 a.m. to 9:30 a.m. and from 4 p.m.

to 5:45 p.m., the draw need open only

at 8:30 a.m. and 4:45 p.m. From 9:30

a.m. to 4 p.m., the draw need open only

on the hour and half-hour.

(v) Royal Park (SR 704) bridge, mile

1022.6 at Palm Beach. The draw shall

open on signal; except that from October

1 through May 31, Monday through

Friday except Federal holidays, from

7:45 a.m. to 9:45 a.m. and from 3:30

p.m., to 5:45 p.m., the draw need open

only at 8:45 a.m., 4:30 p.m., and 5:15

p.m. From 9:30 a.m. to 3:30 p.m., the

draw need open only on the quarterhour and three-quarter hour.

(w) Southern boulevard (SR 700/80)

bridge, mile 1024.7 at Palm Beach. The

draw shall open on signal; except that,

from October 1 through May 31,

Monday through Friday except Federal

holidays, from 7:30 a.m. to 9:15 a.m.

and from 4:30 p.m. to 6:30 p.m., the

draw need open only at 8:15 a.m. and

5:30 p.m. From 9:15 a.m. to 4:30 p.m.,

the draw need open only on the quarterhour and three-quarter hour.

* * * * *

Dated: June 23, 1998.

Norman T. Saunders,

Rear Admiral, U.S. Coast Guard Commander,

Seventh Coast Guard District.

[FR Doc. 98–17370 Filed 6–29–98; 8:45 am]

BILLING CODE 4910–15–M

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Administration For Children and

Families

45 CFR Part 1303

RIN: 0970–AB87

Head Start Program

AGENCY: Administration on Children,

Youth and Families (ACYF),

Administration for Children and

Families (ACF), HHS.

ACTION: Notice of Proposed Rulemaking.

SUMMARY: The Administration on

Children, Youth and Families is issuing

this Notice of Proposed Rulemaking to

propose timelines for the conducting of

administrative hearings on adverse

actions taken against Head Start

grantees and to make additional changes

to the regulations designed to expedite

the appeals process.

DATES: In order to be considered,

comments on this proposed rule must

be received on or before August 31,

1998.

ADDRESSES: Please address comments to

the Associate Commissioner, Head Start

Bureau, Administration on Children,

Youth and Families, PO Box 1182,

Washington, DC 20013. Beginning 14

days after close of the comment period,

comments will be available for public

inspection in Room 2219, 330 C Street,

SW., Washington, DC 20201, Monday

through Friday between the hours of 9

a.m. and 4 p.m.

FOR FURTHER INFORMATION CONTACT: Jim

S. Kolb (202) 205–8580.

SUPPLEMENTARY INFORMATION:

I. Program Purpose

Head Start is authorized under the

Head Start Act (42 U.S.C. 9801 et seq.).

It is a national program providing

comprehensive developmental services

primarily to low-income preschool

children, primarily age three to the age

of compulsory school attendance, and

their families. To help enrolled children

achieve their full potential, Head Start

programs provide comprehensive

health, nutritional, educational, social

and other services. Additionally, Head

Start programs are required to provide

for the direct participation of the

parents of enrolled children in the

development, conduct, and direction of

local programs. Parents also receive

training and education to foster their

understanding of and involvement in

the development of their children. In

fiscal year 1996, Head Start served

752,000 children through a network of

over 2,000 grantees and delegate

agencies.

While Head Start is intended to serve

primarily children whose families have

incomes at or below the poverty line, or

who receive public assistance, Head

Start policy permits up to 10 percent of

the children in local programs to be

from families who do not meet these

low-income criteria. The Act also

requires that a minimum of 10 percent

of the enrollment opportunities in each

program be made available to children

with disabilities. Such children are

expected to participate in the full range

of Head Start services and activities

with their non-disabled peers and to

receive needed special education and

related services.

II. Summary of the Proposed

Regulation

The authority for this Notice of

Proposed Rulemaking (NPRM) is section

646 of the Head Start Act (42 U.S.C.

9841), as amended by Pub. L. 103–252,

Title I of the Human Services

Amendments of 1994. ACF proposes to

make changes to the regulations

designed to expedite the appeals

process and as specifically required by

section 646(c) to specify a timeline for

administrative hearings on adverse

actions taken against grantees, and a

timeline by which the person

conducting the administrative hearing

shall issue a decision based on the

hearing. The proposed rule implements

these requirements.

Overall, this proposed rule on

timelines, including the conforming

changes to other affected sections of the

appeals requirements in part 1303, will

have the effect of saving time and

expenses while continuing to allow due

process to a grantee appealing a

proposed termination or denial of

refunding decision. In the past, a

number of appeal proceedings have

been protracted and costly partly

because of the absence of statutory or

regulatory timelines for holding a
Federal Register / Vol. 63, No. 125 /Tuesday, June 30, 1998 / Proposed Rules 35555

hearing. Under the proposed timelines,

decisions can be rendered in a shorter

period of time thus allowing quicker

removal of a deficient grantee. This will

help ensure that children and their

families receive high quality Head Start

services from a qualified provider.

III. Section by Section Discussion of the

NPRM

Section 1303.14 Appeal by a Grantee

from a Termination of Financial

Assistance

The proposed rule makes several

changes to this section. ACF is

proposing to revise section 1303.14(c)(1)

to state in greater detail the information

which it must include in letters of

termination. Under the proposed

regulation the Agency will be required

to state the legal basis for termination,

the factual findings on which the

termination is based, or reference to

specific findings in another document

that form the basis for the termination

(such as reference to item numbers in an

on-site review report or instrument),

and citation to any statutory provisions,

regulations or policy issuances on

which the Agency is relying for its

determination. This change will reduce

the need for the Agency to supplement

its initial notice with additional filings

after the appeal is filed and thereby

streamline and expedite the appeals

process.

The Agency is also proposing to

amend the regulation to increase the

amount of time for a grantee to appeal

a termination from 10 days to 30 days.

The change is being made to give

grantees more time in which to develop

their initial appeal submission. More

complete submissions will allow

quicker resolutions of appeals. This

increase in time to file appeals carries

with it more responsibility for filing

properly, as discussed below.

The last sentence in § 1303.14(c)(2) is

being deleted because the standard for

content of the request for a hearing will

now appear in the revised § 1303.14(d).

The Agency is also proposing new

language for § 1303.14(d) which requires

the grantee to state in more detail the

basis of its appeal of the termination.

This change will reduce the need for the

grantees to supplement their initial

request for a hearing with additional

filings and thereby streamline and

expedite the appeals process. ACF is

also proposing a change in

§ 1303.14(c)(5) to make it consistent

with the new § 1303.14(d). A new

§ 1303.14(c)(6) is added to provide for

two sanctions against ACF in the event

that a notice of termination is deficient.

If in the judgment of the Departmental

Appeals Board a grantee fails to comply

with these requirements in a substantial

manner its appeal must be rejected, with

prejudice. The burden shall be on a

grantee to show good cause for any

failure to comply with these

requirements. Workload difficulties

shall not normally constitute good

cause, unless the Departmental Appeals

Board determines that adjustments

cannot be made by the grantee and that

the conflicting matters reasonably take

precedence over the expeditious

conduct of the appeal. Thus, for

example, a grantee must show

extenuating circumstances for its failure

to provide documents in its possession

at the time of its appeal and to raise

arguments or objections that would

logically be raised or made in light of

the notice of termination. If the failure

is not substantial, the appeal may

proceed, but the omitted document

must be excluded and the omitted

argument or objection barred. These

provisions flow from the purpose of

these changes, which is to expedite

appeals, and in light of the fact that

grantees will have twenty more days to

file their appeals than is the case under

current regulations. The proposed

regulation does provide relief from the

sanctions under exceptional

circumstances, as the Departmental

Appeals Board may determine in

accordance with the regulations. The

new paragraph on sanctions is (e).

The current § 1303.14(e) is deleted

and a portion of its contents revised and

added as the last sentence in the new

paragraph (d)(7) of this section. It would

require the grantee to serve notice of the

appeal and request for a hearing on any

delegate agency which would be

financially affected at the time the

grantee files its appeal. However, failure

to do so would be between the delegate

and grantee and would not prevent the

non-renewal or termination action from

proceeding. Any remedy would be

between the grantee and delegate

agency.

The proposed revision of § 1303.14(g)

to be redesignated as (i) includes a new

requirement that delegate agencies,

requesting an opportunity to participate

in a hearing, must do so within 30 days

of the grantee’s request for a hearing.

This new requirement is consistent with

the overall thrust of the proposed

provision which is to minimize delays

and require the parties to eliminate

possible sources of delay in the

proceedings.

Section 1303.15 Appeal by a Grantee

From a Denial of Refunding

ACF is proposing to revise paragraph

(b)(2) of this provision to give grantees

30 instead of 10 days in which to appeal

denial of refunding. This proposed

change will make this provision

consistent with revised § 1303.14(c)(2).

The additional time will allow grantees

to provide more complete submissions

which will allow quicker resolutions of

appeals. The proposed revision to

paragraph (d) will require ACF to state

in more detail the basis of the decision

to deny refunding to a grantee. The

additional information in the notice will

reduce the need for the Agency to

supplement its initial notice with filing

after the appeal is filed and thereby

streamline and expedite the appeals

process. Paragraph (d) also provides for

two sanctions against ACF in the event

that a notice of denial of refunding is

deficient. The Agency also is proposing

to add paragraphs (f), (g) and (h) to 45

CFR 1303.15 to make the procedures for

appeals of denials of refunding

consistent with those for termination

appeals in 45 CFR 1303.14.

Section 1303.16 Conduct of Hearing

The proposed revision would

specifically require the parties to use

prepared written direct testimony.

ACF’s experience with prepared written

testimony has shown it is more efficient

in terms of clear presentation of direct

testimony and the reduction of hearing

time and expense, including the absence

of agency staff from their normal duties.

Direct testimony is the testimony of

witnesses in response to the questions

of the attorney for the party which

called them. After a witness’s direct

testimony is presented to the Board, the

attorney for the opposing party has an

opportunity to cross examine, and the

attorney for the party which called the

witness has another opportunity to ask

additional questions, a process known

as ‘‘redirect examination.’’ Prepared

direct testimony by parties eliminates

the need for live direct testimony at the

hearing. However, cross examination

and redirect examination will be live at

the hearing. This permits the presiding

member to assess witness credibility

through direct observation. Use of

prepared written direct testimony by the

parties can result in a significant

reduction in the amount of time needed

for a hearing and the cost of compiling

transcripts of hearings. Based on it own

experience, ACF believes this approach

will contribute to streamlining the Head

Start appeals process. Changes also are

proposed in the wording of 45 CFR

1303.16(e) to make it consistent with the
35556 Federal Register / Vol. 63, No. 125 /Tuesday, June 30, 1998 / Proposed Rules

proposed changes in 45 CFR 1303.14(e)

and (g).

Section 1303.17 Time for hearing and

decision

This proposed rule implements

section 646(c) of the Head Start Act,

which directs the Secretary to specify

timelines for commencing hearings and

rendering decisions. The Head Start Act and implementing

regulations in 45 CFR part 1303 seek to

strike a balance between the need to

ensure that all Head Start programs are

of high quality and are responsive to the

families they serve, on the one hand,

and protection of existing grantees from

arbitrary or baseless adverse actions, on

the other. Assuring that all Head Start

programs provide quality services is a

goal of the Department and the

Congress, as reflected in the report of

the Advisory Committee on Head Start

Quality and Expansion and the

amendments made to the Head Start Act

by Title I of the Human Services

Amendments of 1994. Those

amendments added section 641A of the

Act (42 U.S.C. 9836A) which, in

subsection (d), sets out in detail the

actions which must be taken with

respect to a grantee which has been

found, during an on-site review, to have

quality deficiencies. This subsection

directs the Secretary to require programs

to correct all identified deficiencies

either immediately or within one year of

notification by the Department of the

deficiencies under an approved Quality

Improvement Plan. The Department

must initiate proceedings to terminate

the Head Start grant of any agency

which does not correct all identified

deficiencies within the prescribed time

frames. Grantees which wish to appeal

a proposed termination may do so to the

Department of Health and Human

Services Departmental Appeals Board. The proposed rule requires that any

hearing of an appeal by a grantee from

a notice of suspension, termination or

denial of refunding must be commenced

no later than 120 days from the date the

grantee’s appeal is received by the

Departmental Appeals Board. The final

decision in an appeal, whether or not

there is a hearing, must be rendered not

later than 60 days after the close of the

proceedings, including submission of

the briefs and the holding of oral

argument, if allowed or required by the

Departmental Appeals Board. Currently, there are no timelines for

the hearings or the decisions on appeals

by grantees. The proposed timelines

will ensure an expeditious and more

predictable review process, allow

sufficient time for consideration of the

case, and protect the grantees’ statutory

right to the opportunity for a full and

fair hearing.

IV. Impact Analysis

Executive Order 12866

Executive Order 12866 requires that

regulations be drafted to ensure that

they are consistent with the priorities

and principles set forth in the Executive

Order. The Department has determined

that this rule is consistent with these

priorities and principles. This Notice of

Proposed Rulemaking implements the

statutory requirement for Head Start

grantee appeals to be heard and decided

within certain, defined time frames.

Regulatory Flexibility Act of 1980

The Regulatory Flexibility Act (5

U.S.C. CH. 6) requires the Federal

government to anticipate and reduce the

impact of rules and paperwork

requirements on small businesses. For

each rule with a ‘‘significant economic

impact on a substantial number of small

entities’’ an analysis must be prepared

describing the rule’s impact on small

entities. Small entities are defined by

the Act to include small businesses,

small non-profit organizations and small

governmental entities. While these

regulations would affect small entities,

they would not affect a substantial

number. For this reason, the Secretary

certifies that this rule will not have a

significant impact on substantial

numbers of small entities.

Paperwork Reduction Act

Under the Paperwork Reduction Act

of 1995, Pub. L. 104–13, all Departments

are required to submit to the Office of

Management and Budget (OMB) for

review and approval any reporting or

record-keeping requirement inherent in

a proposed or final rule. This NPRM

does not contain any information

collection or record-keeping

requirements.

List of Subjects in 45 CFR Part 1303

Administrative practice and

procedure, Education of the

disadvantaged, Grant—programs-social

programs, Reporting and recordkeeping

requirements.

(Catalog of Domestic Assistance Program

Number 93.600, Project Head Start)

Dated: December 24, 1997.

Olivia A. Golden,

Assistant Secretary for Children and Families.

Approved: March 20, 1998.

Donna E. Shalala,

Secretary.

For the reasons set forth in the

Preamble, 45 CFR part 1303 is proposed

to be amended to read as follows:

PART 1303—APPEAL PROCEDURES

FOR HEAD START GRANTEES AND

CURRENT OR PROSPECTIVE

DELEGATE AGENCIES

1. The authority citation for part 1303

continues to read as follows:

Authority: 42 U.S.C. 9801 et seq.

2. Section 1303.14 is amended by

revising paragraphs (c)(1), (2) and (5);

removing paragraph (e); redesignating

paragraphs (d) and (f) through (j) as

paragraphs (f) through (r); adding new

paragraphs (c)(6), (d) and (e); and

revising the newly redesignated

paragraph (i) to read as follows:

§ 1303.14 Appeal by a grantee from a

termination of financial assistance.

* * * * *

(c) A notice of termination shall set

forth:

(1) The legal basis for the termination

under paragraph (b) of this section, the

factual findings on which the

termination is based or reference to

specific findings in another document

that form the basis for the termination

(such as reference to item numbers in an

on-site review report or instrument),

and citation to any statutory provisions,

regulations or policy issuances on

which ACF is relying for its

determination.

(2) The fact that the termination may

be appealed within 30 days to the

Departmental Appeals Board (with a

copy of the appeal sent to the

responsible HHS official and the

Commissioner, ACYF) and that such

appeal shall be governed by 45 CFR part

16, except as otherwise provided in the

Head Start appeals regulations, and that

any grantee that requests a hearing, shall

be afforded one, as mandated by 42.

U.S.C. 9841.

* * * * *

(5) That the grantee’s notice of appeal

and request for hearing must meet the

requirements set forth in paragraph (d)

of this section.

(6) That a failure by the responsible

HHS official to meet the requirements of

this paragraph may result in the

dismissal of the termination action

without prejudice, or the remand of that

action for the purpose of reissuing it

with the necessary corrections.
Federal Register / Vol. 63, No. 125 /Tuesday, June 30, 1998 / Proposed Rules 35557

(d) A grantee’s notice of appeal and

request for hearing must:

(1) Be in writing;

(2) Specifically identify what factual

findings are disputed;

(3) Identify any legal issues raised,

including relevant citations;

(4) Include an original and two copies

of each document the grantee believes is

relevant and supportive of its position

(unless the grantee has obtained

permission from the Departmental

Appeals Board to submit fewer copies);

(5) Include any request for specifically

identified documents the grantee wishes

to obtain from ACF, a statement of the

relevance of the requested documents,

and a statement that the grantee has

attempted informally to obtain the

documents from ACF and was unable to

do so;

(6) Include a statement on whether

the grantee is requesting a hearing; and

(7) Be filed with the Departmental

Appeals Board and be served on the

ACF official who issued the termination

notice. The grantee must serve notice of

the appeal and any request for a hearing

on any delegate agency which would be

financially affected at the time the

grantee files its appeal.

(e) The Departmental Appeals Board

sanctions with respect to a grantee’s

notice of appeal and request for hearing

are as follows:

(1) If in the judgment of the

Departmental Appeals Board a grantee

has failed to substantially comply with

the provisions of the preceding

paragraphs of this section, its appeal

must be dismissed with prejudice.

(2) If the Departmental Appeals Board

concludes that the grantees’s failures are

not substantial, but are confined to a

few specific instances, it shall bar the

submittal of an omitted document, or

preclude the raising of an argument or

objection not timely raised in the

appeal, or deny a request for a

document or other ‘‘discovery’’ request

not timely made.

(3) The sanctions set forth in

paragraphs (e) (1) and (2) of this section

shall not apply if the Departmental

Appeals Board determines that a grantee

has shown good cause for its failures to

comply with the relevant requirements.

Delays in obtaining representation shall

not constitute good cause. Matters

within the control of its agents and

attorneys shall be deemed to be within

the control of the grantee.

* * * * *

(i) If the responsible HHS official

initiated termination proceedings

because of the activities of a delegate

agency, that delegate agency may

participate in the hearing as a matter of

right. Any other delegate agency,

person, agency or organization that

wishes to participate in the hearing may

request permission to do so from the

presiding officer of the hearing. Any

request for participation, including a

request by a delegate agency, must be

filed within 30 days of the grantee’s

notice of appeal and request for hearing.

* * * * *

3. Section 1303.15 is amended by

revising paragraphs (b)(2) and (d) (1)

and adding new paragraphs (d)(4), (f),

(g) and (h) to read as follows:

§ 1303.15 Appeal by a grantee from a

denial of refunding.

* * * * *

(b) * * *

(2) Any such appeals must be filed

within 30 days after the grantee receives

notice of the decision to deny refunding.

* * * * *

(d) * * *

(1) The legal basis for the denial of

refunding under paragraph (a) of this

section, the factual findings on which

the denial of refunding is based or

references to specific findings in

another document that form the basis

for the denial of refunding (such as

reference to item numbers in an on-site

review report or instrument), and

citation to any statutory provisions,

regulations or policy issuances on

which ACF is relying for its

determination.

* * * * *

(4) A statement that failure by the

responsible HHS official to meet the

requirements of this paragraph may

result in the dismissal of the denial of

refunding action without prejudice, or

the remand of that action for the

purpose of reissuing it with the

necessary corrections.

* * * * *

(f) If the responsible HHS official has

initiated denial of refunding

proceedings because of the activities of

a delegate agency, that delegate agency

may participate in the hearing as a

matter of right. Any other delegate

agency, person, agency or organization

that wishes to participate in the hearing

may request permission to do so from

the presiding officer of the hearing.

Such participation shall not, without

the consent of ACYF and the grantees,

alter the time limitations for the

delivery of papers or other procedures

set forth in this section.

(g) Paragraphs (j), (k), and (l) of 45

CFR 1303.14 shall apply to appeals of

denials of refunding.

(h) The Departmental Appeals Board

sanctions with respect to a grantee’s

appeal of denial of refunding are as

follows:

(1) If in the judgment of the

Departmental Appeals Board a grantee

has failed to substantially comply with

the provisions of the preceding

paragraphs of this section, its appeal

must be dismissed with prejudice.

(2) If the Departmental Appeals Board

concludes that the grantees’s failures are

not substantial, but are confined to a

few specific instances, it shall bar the

submittal of an omitted document, or

preclude the raising of an argument or

objection not timely raised in the

appeal, or a document or other

‘‘discovery’’ request not timely made.

(3) The sanctions set forth in

paragraphs (h) (1) and (2) of this section

shall not apply if the Departmental

Appeals Board determines that a grantee

has shown good cause for its failures to

comply with the relevant requirements.

Delays in obtaining representation shall

not constitute good cause. Matters

within the control of its agents and

attorneys shall be deemed to be within

the control of the grantee.

4. Section 1303.16 is amended by

redesignating paragraphs (d) through (g)

as paragraphs (e) through (h); adding a

new paragraph (d); and revising newly

redesignated paragraph (f) to read as

follows:

§ 1303.16 Conduct of hearing.

* * * * *

(d) Prepared written direct testimony

will be used in appeals under this part

in lieu of oral direct testimony. When

prepared written direct testimony is

submitted by the parties, witnesses must

be available at the hearing for crossexamination and redirect examination.

If a party can show substantial hardship

in using prepared written direct

testimony, the Departmental Appeals

Board may exempt it from the

requirement. However, such hardship

must be more than difficulty in doing

so, and it must be shown with respect

to each witness.

* * * * *

(f) Any person or organization that

wishes to participate in a proceeding

may apply for permission to do so from

the presiding officer. This application,

which must be made within 30 days of

the grantee’s notice of appeal and

request for hearing in the case of the

appeal of termination or denial of

refunding, and as soon as possible after

the notice of suspension has been

received by the grantee, shall state the

applicant’s interest in the proceeding,

the evidence or arguments the applicant

intends to contribute, and the necessity

for the introduction of such evidence or

arguments.

5. Section 1303.17 is added to read as

follows:
35558 Federal Register / Vol. 63, No. 125 /Tuesday, June 30, 1998 / Proposed Rules

§ 1303.17 Time for hearing and decision.

(a) Any hearing of an appeal by a

grantee from a notice of suspension,

termination or denial of refunding must

be commenced no later than 120 days

from the date the grantee’s appeal is

received by the Departmental Appeals

Board. The final decision in an appeal

whether or not there is a hearing must

be rendered not later than 60 days after

the close of the proceedings, including

submission of the briefs and oral

argument, if allowed or required by the

Departmental Appeals Board, and

completion of final transcripts and any

other applicable corrections to them.

(b) All hearings will be conducted

expeditiously and without undue delay

or postponement.

(c) The time periods established in

paragraph (a) of this section may be

extended if:

(1) The parties jointly request a stay

to engage in settlement negotiations;

(2) Either party requests summary

disposition; or

(3) The Departmental Appeals Board

determines that the Board is unable to

hold a hearing or render its decision

within the specified time period for

reasons beyond the control of either

party or the Board.

[FR Doc. 98–17296 Filed 6–29–98; 8:45 am]

BILLING CODE 4184–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 2 and 90

[ET Docket No. 98–95; FCC 98–119]

Dedicated Short Range

Communications of Intelligent

Transportation Services

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: The Commission is proposing

to allocate 75 megahertz of spectrum for

use by Dedicated Short Range

Communications (‘‘DSRC’’) of

Intelligent Transportation Systems

(‘‘ITS’’). DSRC systems are being

designed that require a short range,

wireless link to transfer information

between vehicles and roadside systems.

ITS services are expected to improve

traveler safety, decrease traffic

congestion, and facilitate reduction of

air pollution and conservation of fossil

fuels. This action furthers the goals of

the U.S. Congress, Department of

Transportation and the ITS industry to

improve the efficiency of the Nation’s

transportation infrastructure and to

facilitate the growth of the ITS industry.

DATES: Comments are due September

14, 1998, reply comments are due

October 13, 1998.

FOR FURTHER INFORMATION CONTACT: Tom

Derenge, Office of Engineering and

Technology, (202) 418–2451.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Notice of

Proposed Rule Making, ET Docket 98–

95, FCC 98–119, adopted June 11, 1998,

and released June 11, 1998 . The full

text of this Commission decision is

available for inspection and copying

during normal business hours in the

FCC Reference Center (Room 239), 1919

M Street, N.W., Washington, D.C., and

also may be purchased from the

Commission’s duplication contractor,

International Transcription Service,

(202) 857–3800, 1231 20th Street, N.W.

Washington, D.C. 20036.

Summary of the Notice of Proposed

Rule Making

1. On May 19, 1997, the Intelligent

Transportation Society of America (‘‘ITS

America’’) filed a Petition for

Rulemaking (‘‘Petition’’) requesting that

the Commission allocate 75 megahertz

of spectrum in the 5.850–5.925 GHz

band on a co-primary basis for DSRCbased ITS services. The Petition states

that DSRC links are needed for eleven

ITS user services and places DSRC

needs into three categories: current

DSRC applications; emerging DSRC

applications; and future DSRC

applications.

2. The 5.850–5.925 GHz band is

allocated internationally on a primary

basis for Fixed Services, Fixed Satellite

Service (‘‘FSS’’) Earth-to-space links

(‘‘uplinks’’), and Mobile Services.

Additionally, in Region 2, this band is

allocated on a secondary basis to the

Amateur Radio Service and the

Radiolocation Service. Finally, the

5.850–5.875 GHz segment is designated

internationally for industrial, scientific

and medical (‘‘ISM’’) applications.

Domestically, the entire band is

currently allocated on a co-primary

basis for the Government’s

Radiolocation Service (i.e., for use by

high-powered military radar systems)

and for non-Government FSS uplink

operations. ISM devices and unlicensed

part 15 devices are also permitted to

operate in the 5.850–5.875 GHz

segment. Finally, the Amateur Radio

Service has a secondary domestic

allocation in the entire band.

3. We propose to allocate 75

megahertz of spectrum, at 5.850–5.925

GHz, to the Mobile Service and to

designate its use for DSRC operations.

We tentatively conclude that this

significant amount of proposed

spectrum would further the goals of the

National ITS program and encourage the

development of advanced technologies

to increase the safety and efficiency of

the national transportation

infrastructure well into the future.

Additionally, a 75 megahertz allocation

should enable avoidance of occupied

frequencies in areas where incumbent

use is heavy and should be sufficient to

meet the spectrum demands of future

DSRC operations, such as Automated

Highway Systems, which could require

several dedicated wideband channels to

ensure reliability. We request comment

on whether this proposed allocation is

excessive given that efficient spectrum

use techniques exist and our goal of

promoting spectrum efficiency. We

welcome alternative suggestions for an

allocation for DSRC.

4. We believe that spectrum sharing

between FSS and DSRC operations may

be possible. However, we seek comment

on the likely future needs for this

spectrum for FSS earth stations. In this

regard, we note that given the much

higher power of FSS operations and the

relatively low power of DSRC

operations, individual DSRC operations

are unlikely to cause harmful

interference to incumbent FSS satellite

operations. We also do not expect that

DSRC devices in the aggregate would

negatively impact existing or future FSS

operations, particularly given that there

are several other potentially significant

contributors to the overall noise level in

this band, such as government radars

and ISM devices. We request comment

on this preliminary assessment. We also

seek comment on what, if any, effects

the widespread deployment of DSRC

devices could have on future

development of FSS operations in this

band. In this regard, we observe that

widespread deployment of mobile

devices, including devices with

potential public safety uses, could make

it more difficult to coordinate new FSS

operations. We also seek comment on

whether there are any instances in

which DSRC services might be

unacceptably impaired by FSS

operations. We seek comment on

whether terrain shielding, directional

antennas, RF fencing and other

techniques can be employed by DSRC

operators to avoid receiving or causing

interference. Alternatively, should

interference situations arise where the

two services are not compatible in a

specific area or over a range of

frequencies, we request comment on the

feasibility of relocating the FSS

operations to other geographic areas or

frequency bands using the principles

outlined in the Emerging Technologies