32248 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

Approximately 90 of these small TV

broadcast television stations are

affiliates of the WB or UPN networks

and may be affected by our rule change.

We note, however, that under SBA’s

definition, revenues of affiliates that are

not television stations should be

aggregated with the television station

revenues in determining whether a

concern is small. Therefore, our

estimate may overstate the number of

small entities since the revenue figure

on which it is based does not include or

aggregate revenues from non-television

affiliated companies. It would appear

that there would be no more than 800

entities affected.

46. Description of Projected

Reporting, Recordkeeping, and Other

Compliance Requirements. The R&O

imposes no reporting, recordkeeping, or

compliance requirements.

47. Steps Taken to Minimize

Significant Economic Impact on Small

Entities and Significant Alternatives

Considered. The RFA requires an

agency to describe any significant

alternatives that it has considered in

reaching its proposed approach, which

may include the following four

alternatives: (1) The establishment of

differing compliance or reporting

requirements or timetables that take into

account the resources available to small

entities; (2) the clarification,

consolidation, or simplification of

compliance or reporting requirements

under the rule for small entities; (3) the

use of performance, rather than design,

standards; and (4) an exemption from

coverage of the rule, or any part thereof,

for small entities.

48. As indicated, the R&O allows

licensees to affiliate with a network

entity that maintains two or more

networks unless such multiple networks

consist of more than one of the ‘‘big

four’’ networks (NBC, ABC, CBS and

Fox). This eliminates the bar on

affiliation with an entity that maintains

one of the ‘‘big four’’ networks and the

UPN and/or WB networks. All

significant alternatives, i.e., retention of

the existing rule, modification of the

existing rule, and elimination of the

dual network rule altogether, were

considered in the Commission’s 1998

biennial review of its broadcast

ownership rules (MM Docket No. 98–35)

and herein. In the Biennial Review

proceeding the Commission tentatively

determined that elimination of the

subject provision would be in the public

interest. The Commission considered

the results of this top-to-bottom review

of the subject rule in its consideration

of alternatives to the course proposed

herein in the instant proceeding. The

instant action provides television

licensees, including those considered to

be ‘‘small businesses,’’ with increased

flexibility with regard to the broadcast

networks with which they may affiliate.

It also may help small stations that are

affiliated with the UPN or WB networks

survive and prosper in an increasingly

competitive media marketplace. Finally,

it gives the four major and two emerging

broadcast television networks, none of

which are small businesses, more

merger flexibility.

49. Report to Congress. The

Commission will send a copy of this

R&O, including this FRFA, in a report

to be sent to Congress pursuant to the

Small Business Regulatory Enforcement

Fairness Act of 1996, see 5 U.S.C.

801(a)(1)(A). In addition, the

Commission will send a copy of this

R&O, including FRFA, to the Chief

Counsel for Advocacy of the Small

Business Administration. A copy of this

R&O and FRFA (or summaries thereof)

will also be published in the Federal

Register. See 5 U.S.C. 604(b).

50. Accordingly, pursuant to the

authority contained in 47 U.S.C. 154(i)

and (j), 303(r), 308, 310 and 403, as

amended, 47 CFR part 73 is amended as

set forth in ‘‘Rule Change.’’

51. Viacom, Inc.’s, temporary waiver

of 47 CFR 73.658(g) of the Commission’s

Rules, will be extended until the

effective date of this rule amendment.

52. The Commission’s Consumer

Information Bureau, Reference

Information Center, will send a copy of

this R&O, including the Final

Regulatory Flexibility Analysis, to the

Chief Counsel for Advocacy of the Small

Business Administration.

Federal Communications Commission.

William F. Caton,

Deputy, Secretary.

List of Subjects in 47 CFR Part 73

Television.

Rule Change

For the reasons discussed in the

preamble the Federal Communications

Commission amends 47 CFR part 73 as

follows:

PART 73—RADIO BROADCAST

SERVICES

1. The Authority citation for part 73

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334, and

336.

2. Section 73.658 is amended by

revising paragraph (g) to read as follows:

§ 73.658 Affiliation agreements and

network program practices; territorial

exclusivity in non-network program

arrangements.

* * * * *

(g) Dual network operation. A

television broadcast station may affiliate

with a person or entity that maintains

two or more networks of television

broadcast stations unless such dual or

multiple networks are composed of two

or more persons or entities that, on

February 8, 1996, were ‘‘networks’’ as

defined in § 73.3613(a)(1) of the

Commission’s regulations (that is, ABC,

CBS, Fox, and NBC).

* * * * *

[FR Doc. 01–14936 Filed 6–13–01; 8:45 am]

BILLING CODE 6712–01–U

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 40

[Docket OST–99–6578]

RIN 2105–AC49

Procedures for Transportation

Workplace Drug and Alcohol Testing

Programs

AGENCY: Office of the Secretary, DOT.

ACTION: Request for comments on final

rule.

SUMMARY: On December 19, 2000, the

Department of Transportation published

its final rule on drug and alcohol testing

procedures. One provision of this rule

requires employers to inquire into the

drug and alcohol testing records of

applicants for employment. A group of

maritime industry organizations

requested that the Department provide a

comment period on this provision. In

response to this request, the Department

is opening a comment period for 30

days.

DATES: Comments on 40 CFR 40.25 must

be received by July 16, 2001.

ADDRESSES: Comments should be sent to

Docket Clerk, Attn: Docket No. OST–99–

6578, Department of Transportation, 400

7th Street, SW., Room PL401,

Washington DC, 20590. Persons wishing

their comments to be acknowledged

should enclose a stamped, selfaddressed postcard with their

comments. The docket clerk will date

stamp the postcard and return it to the

sender. Comments may be reviewed at

the above address from 9:00 a.m.

through 5:30 p.m. Monday through

Friday. Commenters may also submit

their comments electronically.

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32249

Instructions for electronic submission

may be found at the following web

address: http://dms.dot.gov/submit/.

The public may also review docketed

comments electronically. The following

web address provides instructions and

access to the DOT electronic docket:

http://dms.dot.gov/search/.

FOR FURTHER INFORMATION CONTACT:

Robert C. Ashby, Deputy Assistant

General Counsel for Regulation and

Enforcement, 400 7th Street, SW., Room

10424, Washington DC, 20590, 202–

366–9306 (voice), 202–366–9313 (fax),

or bob.ashby@ost.dot.gov (e-mail).

SUPPLEMENTARY INFORMATION: On

December 19, 2000 (65 FR 79462), the

Department published a final rule

revising its drug and alcohol testing

procedures (49 CFR Part 40). One

provision of this rule, § 40.25, requires

employers to make inquiries about the

drug and alcohol testing history of

applicants for employment in jobs

involving the performance of safetysensitive functions. The employee must

provide a written consent to the inquiry

before it is made. The purpose of the

provision is to ensure that new

employers have the opportunity to learn

about recent violations (within two

years of the application) of the

Department’s rules. This information is

important to allow employers to comply

with the obligation to ensure that

employees fully complete return-to-duty

process requirements. The provision is

based on a long-standing provision of

the Federal Motor Carrier Safety

Administration’s drug and alcohol

testing rule (49 CFR Part 382).

The history of this provision in the

Part 40 rulemaking is as follows: In

§ 40.329 of the Department’s December

1999 notice of rulemaking (NPRM) on

this subject, the Department proposed

allowing medical review officers

(MROs) to provide information on

employees’ drug test results to thirdparty employers under some

circumstances. Most commenters, while

agreeing that providing information to

third-party employers about violations

of drug testing rules has value for safety

purposes, found the specifics of the

proposal problematical. Some urged the

Department to find an alternative.

Employing a provision like the Federal

Motor Carrier Safety Administration

provision mandating pre-employment

inquiries about applicants’ drug and

alcohol testing history was one

suggestion mentioned in comments (see

65 FR 79475, December 19, 2000). An

agency is entitled to respond to

comments on a proposed rule by

changing, adding, or deleting

provisions. As explained in the

preamble to the final rule, this is the

course the Department chose in moving

from the NPRM’s § 40.329 to the final

rule’s § 40.25.

Nevertheless, a group of maritime

organizations requested that the

Department open a comment period for

the purpose of commenting on § 40.25.

While we believe the Department acted

fully in accordance with all applicable

rulemaking procedures, we will, in

response to this request, open a

comment period on the provision for 30

days. We are able to be responsive to

this request because we have sufficient

time, before the August 1, 2001,

effective date of the revised Part 40, to

consider comments and make any

changes we believe to be appropriate

without disrupting the implementation

of the rule. We do not believe that a

longer period is needed to provide

comments on this one particular

provision of the rule that we published

on December 19, 2001. Interested

persons should therefore be able to

comment readily within the 30-day

period.

The groups that requested the

opportunity to comment on this

provision of the final rule also requested

that the Department suspend the

implementation of § 40.25. This

provision goes into effect August 1,

2001. It is not necessary to suspend a

provision that is not yet in effect.

Please note that this opportunity for

comment concerns only § 40.25, and the

Department is not accepting comments

on other provisions of the rule at this

time. For readers’ convenience, we are

reprinting below the text of § 40.25:

Section 40.25 Must an employer check

on the drug and alcohol testing record

of employees it is intending to use to

perform safety-sensitive duties?

(a) Yes, as an employer, you must,

after obtaining an employee’s written

consent, request the information about

the employee listed in paragraph (b) of

this section. This requirement applies

only to employees seeking to begin

performing safety-sensitive duties for

you for the first time (i.e., a new hire,

an employee transfers into a safetysensitive position). If the employee

refuses to provide this written consent,

you must not permit the employee to

perform safety-sensitive functions.

(b) You must request the information

listed in this paragraph (b) from DOTregulated employers who have

employed the employee during any

period during the two years before the

date of the employee’s application or

transfer:

(1) Alcohol tests with a result of 0.04

or higher alcohol concentration;

(2) Verified positive drug tests;

(3) Refusals to be tested (including

verified adulterated or substituted drug

test results);

(4) Other violations of DOT agency

drug and alcohol testing regulations;

and

(5) With respect to any employee who

violated a DOT drug and alcohol

regulation, documentation of the

employee’s successful completion of

DOT return-to-duty requirements

(including follow-up tests). If the

previous employer does not have

information about the return-to-duty

process (e.g., an employer who did not

hire an employee who tested positive on

a pre-employment test), you must seek

to obtain this information from the

employee.

(c) The information obtained from a

previous employer includes any drug or

alcohol test information obtained from

previous employers under this section

or other applicable DOT agency

regulations.

(d) If feasible, you must obtain and

review this information before the

employee first performs safety-sensitive

functions. If this is not feasible, you

must obtain and review the information

as soon as possible. However, you must

not permit the employee to perform

safety-sensitive functions after 30 days

from the date on which the employee

first performed safety-sensitive

functions, unless you have obtained or

made and documented a good faith

effort to obtain this information.

(e) If you obtain information that the

employee has violated a DOT agency

drug and alcohol regulation, you must

not use the employee to perform safetysensitive functions unless you also

obtain information that the employee

has subsequently complied with the

return-to-duty requirements of Subpart

O of this part and DOT agency drug and

alcohol regulations.

(f) You must provide to each of the

employers from whom you request

information under paragraph (b) of this

section written consent for the release of

the information cited in paragraph (a) of

this section.

(g) The release of information under

this section must be in any written form

(e.g., fax, e-mail, letter) that ensures

confidentiality. As the previous

employer, you must maintain a written

record of the information released,

including the date, the party to whom

it was released, and a summary of the

information provided.

(h) If you are an employer from whom

information is requested under

paragraph (b) of this section, you must,

after reviewing the employee’s specific,

written consent, immediately release the

32250 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

requested information to the employer

making the inquiry.

(i) As the employer requesting the

information required under this section,

you must maintain a written,

confidential record of the information

you obtain or of the good faith efforts

you made to obtain the information.

You must retain this information for

three years from the date of the

employee’s first performance of safetysensitive duties for you.

(j) As the employer, you must also ask

the employee whether he or she has

tested positive, or refused to test, on any

pre-employment drug or alcohol test

administered by an employer to which

the employee applied for, but did not

obtain, safety-sensitive transportation

work covered by DOT agency drug and

alcohol testing rules during the past two

years. If the employee admits that he or

she had a positive test or a refusal to

test, you must not use the employee to

perform safety-sensitive functions for

you, until and unless the employee

documents successful completion of the

return-to-duty process (see paragraphs

(b)(5) and (e) of this section).

Regulatory Analyses and Notices

The Department has previously

considered all of 49 CFR Part 40 with

respect to rulemaking process

requirements (see 65 FR 79516–79518;

December 19, 2000). The proposed rule,

analyses concerning it, and the

comments on it can be found in the

Department’s docket or on the

Department’s Dockets Management

System (DMS) web site. The address for

the Dockets office and the DMS web site

are listed under ADDRESSES above. This

action is simply a response to an

industry request for, essentially, the

reopening of a comment period; the

Department does not propose to take

any new action through this document

that would be subject to statutory or

Executive Order requirements

concerning the regulatory process.

Issued this 11th Day of June, 2001, at

Washington DC.

Kenneth C. Edgell,

Acting Director, Office of Drug and Alcohol

Policy and Compliance.

[FR Doc. 01–15072 Filed 6–12–01; 10:41 am]

BILLING CODE 4910–62–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AE92

Endangered and Threatened Wildlife

and Plants; Establishment of

Nonessential Experimental Population

Status for 16 Freshwater Mussels and

1 Freshwater Snail (Anthony’s

Riversnail) in the Free-Flowing Reach

of the Tennessee River below the

Wilson Dam, Colbert and Lauderdale

Counties, AL

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: We, the Fish and Wildlife

Service (Service), plan to reintroduce 16

federally listed endangered mussels—

Alabama lampmussel (Lampsilis

virescens), birdwing pearlymussel

(Conradilla caelata), clubshell

(Pleurobema clava), cracking

pearlymussel (Hemistena lata),

Cumberland bean (pearlymussel)

(Villosa trabalis), Cumberlandian

combshell (Epioblasma brevidens),

Cumberland monkeyface pearlymussel

(Quadrula intermedia), dromedary

pearlymussel (Dromus dromas), finerayed pigtoe (Fusconaia cuneolus),

oyster mussel (Epioblasma

capsaeformis), catspaw (purple cat’s

paw pearlymussel) (Epioblasma

obliquata obliquata), shiny pigtoe

(Fusconaia cor), tubercled blossom

(pearlymussel) (Epioblasma torulosa

torulosa), turgid blossom (pearlymussel)

(Epioblasma turgidula), winged

mapleleaf (mussel) (Quadrula fragosa),

and yellow blossom (pearlymussel)

(Epioblasma florentina florentina)—and

1 federally listed endangered aquatic

snail, Anthony’s riversnail (Athearnia

anthonyi), into historical habitat in the

free-flowing reach of the Tennessee

River. The geographic boundaries of the

nonessential experimental populations

(NEPs) extend from the base of the

Wilson Dam (River Mile 259.4 (414.0

kilometers)) to the backwaters of the

Pickwick Reservoir (RM 246.0 (393.6

km)) and include the lower 5 RM (8 km)

of all tributaries that enter the Wilson

Dam tailwaters.

These reintroduced populations will

be classified as NEPs under section 10(j)

of the Endangered Species Act of 1973,

as amended (Act). Based on the

evaluation of species experts, none of

these species are currently known to

exist in this river reach or its tributaries.

These reintroductions are recovery

actions and are part of a series of

reintroductions and other recovery

actions that the Service, Federal and

State agencies, and other partners are

considering and conducting throughout

the species’ historical ranges. This rule

provides a plan for establishing the

NEPs and provides for limited allowable

legal taking of the aforementioned

mollusks within the defined NEP Area.

DATES: The effective date of this rule is

July 16, 2001.

ADDRESSES: The complete

administrative file for this rule is

available for inspection, by

appointment, during normal business

hours at the Asheville Field Office, U.S.

Fish and Wildlife Service, 160 Zillicoa

Street, Asheville, North Carolina 28801.

FOR FURTHER INFORMATION CONTACT: Mr.

Richard G. Biggins at 828/258–3939,

Ext. 228; facsimile 828/258–5330; and email richard_biggins@fws.gov.

SUPPLEMENTARY INFORMATION:

Background

1. Legislative: Congress made

significant changes to the Endangered

Species Act of 1973 (Act), as amended,

with the addition of section 10(j), which

provides for the designation of specific

reintroduced populations of listed

species as ‘‘experimental populations.’’

Previously, we had authority to

reintroduce populations into

unoccupied portions of a listed species’

historical range when doing so would

foster the conservation and recovery of

the species. However, local citizens

often opposed these reintroductions

because they were concerned about the

placement of restrictions and

prohibitions on Federal and private

activities. Under section 10(j), the

Secretary of Interior can designate

reintroduced populations established

outside the species’ current range, but

within its historical range, as

‘‘experimental.’’

Under the Act, species listed as

endangered or threatened are afforded

protection primarily through the

prohibitions of section 9 and the

requirements of section 7. Section 9 of

the Act prohibits the take of a listed

species. ‘‘Take’’ is defined by the Act as

harass, harm, pursue, hunt, shoot,

wound, trap, capture, or collect, or

attempt to engage in any such conduct.

Section 7 of the Act outlines the

procedures for Federal interagency

cooperation to conserve federally listed

species and protect designated critical

habitats. It mandates all Federal

agencies to determine how to use their

existing authorities to further the

purposes of the Act to aid in recovering

listed species. It also states that Federal

agencies will, in consultation with the