        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 73
        [MB Docket No. 09-194; FCC 09-94]
        Empowering Parents and Protecting Children in an Evolving Media Landscape

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Notice of inquiry.

          SUMMARY:
          This document seeks comment on how to empower parents to help their children take advantage of the opportunities offered by evolving electronic media technologies while at the same time protecting children from the risks inherent in use of these technologies. It asks for comment about the extent to which children are using electronic media today, the benefits and risks this presents, and the ways in which parents, teachers, and children can help reap the benefits while minimizing the risks of using these technologies. It also asks about the effectiveness of media literacy efforts and about how the Commission can assist with efforts being made by other Federal agencies that are addressing similar issues.

          DATES:
          Comments are due January 25, 2010; reply comments are due February 22, 2010.

          FOR FURTHER INFORMATION CONTACT:

          For additional information on this proceeding, contact David Konczal, Media Bureau, Policy Division at (202) 418-2228 or at David.Konczal@fcc.gov, Kim Matthews, Media Bureau, Policy Division at (202) 418-2154 or at Kim.Matthews@fcc.gov, or Holly Saurer, Media Bureau, Policy Division at (202) 418-7283 or at Holly.Saurer@fcc.gov.

        SUPPLEMENTARY INFORMATION:
        This is a summary of the Commission's Notice of Inquiry (NOI), FCC 09-94, adopted on October 22, 2009, and released on October 23, 2009. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. This document will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be purchased from the Commission's copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
        Summary of the Notice of Inquiry
        Introduction
        The evolving electronic media landscape presents parents with both tremendous opportunities and critical challenges. On the one hand, electronic media technologies present many benefits for children, such as offering an almost unlimited potential for educational avenues and providing the technological literacy needed to compete in a global economy. On the other hand, the technological developments that produce these benefits also present risks for children. With this Notice of Inquiry (“NOI”), we seek to develop a record that will help us answer the question of how to empower parents to help their children take advantage of these opportunities, while at the same time protecting children from the risks inherent in use of these platforms.
        From television to mobile devices to the Internet, electronic media offer children today avenues for education that their parents could never have envisioned. Using a television, a mobile device, a computer, or other media platform, children potentially can access educational information on every topic imaginable. The new media landscape is also participatory in nature. In addition to passively viewing or listening to educational content, children are using new technologies, such as social networking sites, to interact with and learn from relatives, friends, and others located across the globe.

        As children are exposed to new media platforms, however, they may also be exposed to content that is inappropriate or subjected to contact with individuals who may want to cause them harm. The same television, mobile device, computer, or other media platform that provides educational information may also expose children to exploitative advertisements, offensive language, sexually explicit material, violent content, bullying, scams, or even child predators. Media convergence also presents new challenges for parents in monitoring their children's media consumption. The same content that is blocked when a child attempts to view it on a television may be available for viewing on the Internet. Moreover, two decades ago, children's media consumption was limited to the home environment; today, children can access the Internet and its unlimited content options on their mobile devices outside the home where a parent is not present. While indecency regulations apply to radio and television broadcasting, subscription services have generally received different regulatory treatment, requiring parents to take additional actions to protect children when using these services. In addition, children are now creators of content in a participatory media environment, posting their thoughts on blogs and sharing pictures or videos on Web sites or using mobile phones. Thus, children today are at risk of sharing private information that may be embarrassing or may even expose them to harm.
        Some parents are aware of the wide range of electronic media technologies available today but are confused about how to ensure that their children benefit from these technologies while avoiding the inherent risks. Other parents may be unaware of the benefits and risks of electronic media technologies, leaving their children in danger of being left behind in the digital revolution or left unsupervised as they navigate this challenging media landscape.
        Through this NOI, we seek information on the extent to which children are using electronic media today, the benefits and risks these technologies bring for children, and the ways in which parents, teachers, and children can help reap the benefits while minimizing the risks. We start by reviewing the current children's media landscape, including the extent to which children use various kinds of electronic media and the potential impact on children from media use. We acknowledge that a wealth of academic research and studies exists on these issues. As discussed below, we ask commenters to identify additional data and important studies, whether concluded or ongoing, beyond those discussed here. Commenters are also invited to ask and answer any other questions that this NOI fails to raise which they believe would help inform our inquiry.
        We then explore the many positive impacts on children that media use may have. As discussed below, the benefits of electronic media for children include (i) accessing educational content; (ii) acquiring technological literacy needed to compete in a global economy; (iii) developing new skills in the use of technology and the creation of content; (iv) facilitating new forms of communication with family and peers; (v) improving health through telemedicine; and (vi) removing barriers for children with disabilities. We seek comment on these benefits, whether parents, teachers, and children are aware of these benefits, and the extent to which educational content is offered over the various electronic media platforms.
        While we recognize that electronic media technologies offer these potential benefits to children, we also explore the risks of harm that media use presents. As discussed below, these risks include (i) exposure to exploitative advertising; (ii) exposure to inappropriate content (such as offensive language, sexual content, violence, or hate speech); (iii) impact on health (for example, childhood obesity, tobacco use, sexual behavior, or drug and alcohol use); (iv) impact on behavior (in particular, exposure to violence leading to aggressive behavior); (v) harassment and bullying; (vi) sexual predation; (vii) fraud and scams; (viii) failure to distinguish between who can and who cannot be trusted when sharing information; and (ix) compromised privacy. We seek comment on these risks, whether parents, teachers, and children are aware of them, and what can be done to protect children from them.
        Some experts believe that greater media literacy for parents, teachers, and children is critical to enabling children to enjoy the benefits of electronic media while minimizing the potential harms. We are particularly interested in learning more about the effectiveness of media literacy and what can be done to increase media literacy among parents, teachers, and children. We explore those issues below.
        In conducting this inquiry, we recognize that other Federal agencies are addressing some of the same issues, at least with respect to online safety. We seek comment on what the Commission can do to assist these efforts. We also invite commenters to suggest new actions that the Commission or industry can take to address the issues posed here. In doing so, we ask commenters to discuss whether the Commission has the statutory authority to take any proposed actions and whether those actions would be consistent with the First Amendment. In addressing the issues raised here, we urge commenters to consider the full range of electronic media platforms, including broadcast television and radio, multichannel video programming distributors (“MVPDs”), audio devices, video games, wireless devices, nonnetworked devices, and the Internet.

        Our goal with this NOI is to gather data and recommendations from experts, industry, and parents that will enable us to identify actions that all stakeholders can take to enable parents and children to navigate this promising electronic media landscape safely and successfully. In this regard, we solicit information on how other nations have dealt with and are dealing with these issues. Commenters should provide data on broadcast services, subscription video and other electronic media platforms. We also note that we recently issued a Report to Congress (the “CSVA Report”) pursuant to the Child Safe Viewing Act of 2007 that contains relevant data and information for this NOI. See Implementation of the Child Safe Viewing Act: Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, Report, FCC 09-69 (rel. Aug. 31, 2009). (“CSVA Report”). In the CSVA Report, we assessed the current state of the marketplace with respect to the existence and availability of advanced blocking technologies, methods of encouraging the development, deployment, and use of such technologies, and the existence, availability, and use of parental empowerment tools and initiatives already in the market. This NOI picks up where the CSVA Report left off, and we urge commenters to read the CSVA Report before filing comments in this proceeding. In addition, we will incorporate the comments filed in the CSVA proceeding by reference into the record on this NOI.
        Issues for Comment
        Children's Media Use

        Children today live in a media environment that is dramatically different from the one in which their parents and grandparents grew up decades ago. The advent of cable and satellite television, accompanied by the transition to digital technology, has dramatically increased the number of television channels available in most homes. Studies examining the media habits of American children demonstrate that children have access to a wide array of electronic media technologies. For instance, a study using 2004 data indicates that almost all households with children ages 8 to 18 had a television set, video player, radio, and audio player. In fact, a Kaiser Family Foundation study found that in 2004 the typical American child of that age was likely to live in a home with three televisions, three video cassette recorders (“VCRs”), three radios, three CD/tape players, two video game consoles, and a personal computer with an Internet connection. Data from 2005 indicates that this ubiquity even extended to households with children six years and younger, 78 percent of whom had personal computers, and 50 percent of whom had a video game player. According to a recent study by the Pew Internet & American Life Project (“Pew”), 71 percent of children ages 12 to 17 owned cell phones in 2008 and 74 percent owned an iPod or other MP3 player. The study also found that more than 70 percent of 12- and 13-year-olds owned a portable gaming device in 2008—more than the percentage that owned a cell phone among that age group. We therefore seek information about whether these trends continue to hold true, and ways in which they may have changed.
        Studies also demonstrate that the pervasive presence of media in the lives of children has led to children spending significant time using some form of media, and often using two or more kinds of media simultaneously. One study found that five years ago, in 2004, children ages 8 to 18 already were reporting an average of five hours and 48 minutes of daily electronic media use, while, in 2005, children six years and younger averaged two hours and twenty four minutes of daily exposure to electronic media. Further, a Kaiser Family Foundation study analyzing 2004 data concluded that 8- to 18-year-olds watched on average just over three hours of television each day and nearly four hours when videos, DVDs, and pre-recorded shows were included. The same study found that 12- to 13-year-olds spent about 13/4 hours each day listening to music (including radio, CDs, tapes, or MP3 players), one hour each day on the computer (not including schoolwork), and just under 50 minutes each day playing video games. The study also concluded that one quarter of the time that 8- to 18-year-olds used media, they used two or more media at the same time. Thus, the amount of media content to which children were exposed exceeded the number of hours children actually used media. We seek comment on how these viewing habits may have changed in the past several years. We also seek comment on the extent to which the rise of media multitasking by children—their use of more than one kind of electronic media simultaneously—may be increasing their total exposure to media content.
        The rise in Internet use by children plays a significant role in their exposure to more forms of media. For instance, according to a Pew study analyzing data from 2006, 93 percent of American children ages 12 to 17 accessed the Internet. The number of applications children are using online are increasing as well: children are now heavily involved on social networking sites, share videos on sites such as YouTube and GoogleVideo, and share artwork, photos, stories, and videos online. We seek comment on whether these trends have increased and whether children have begun using other new forms of media over the past several years.
        We ask commenters to identify additional data and studies on children's media use beyond those that we have discussed. Are there additional relevant studies describing which media platforms children are using most frequently? Are there studies analyzing trends in children's media consumption (for example, how does the amount of time children spend texting and using social networking sites compare to television viewing, and how has this changed over time)? Are there studies describing where children use media (inside the home in the presence of a parent or outside the home)? In what ways does media consumption vary depending on a child's age? Are there studies concerning what kinds of content are most commonly accessed by children, and if so, what do such studies conclude?
        We also seek comment on whether there are classes of children who do not have access to new digital media platforms. Does access vary depending on race, ethnicity, geography, parental income, or disability? Does access depend on the educational level of a child's parents? What studies have been done on these issues? What can government or industry do to ensure that all children have access to digital media?
        We invite commenters' views on which studies are most reliable, what gaps exist in the research, and where the Commission could contribute by commissioning further studies. In particular, we ask commenters to identify whether the studies cited account for the newest media technologies.
        Benefits of Electronic Media for Children
        Electronic media offer numerous benefits for children. As discussed below in more detail, among these benefits are (i) access to educational content; (ii) acquiring technological literacy needed to compete in a global economy; (iii) developing new skills in the use of technology and the creation of content; (iv) facilitating new forms of communication with family and peers; (v) improving health through telemedicine; and (vi) removing barriers for children with disabilities. We seek further information on the benefits that electronic media offer for children, what actions can be taken to ensure that parents, teachers, and children are aware of these benefits, and the extent to which educational content is offered over the various electronic media platforms.
        Key Benefits

        Substantial evidence indicates that one significant benefit of media for children is helping children to learn. Research on educational television programs for children demonstrates that programs designed with a specific goal to teach academic or social skills can be effective, with potentially long-lasting effects. A number of studies have concluded that preschoolers who viewed Sesame Street had higher levels of school readiness than those who did not. Evidence also shows that children who were regular viewers of the educational program Blue's Clues showed improved problem-solving skills. Research on educational interactive media software and digital games suggests they may have similar positive results. There is also evidence that mobile media, such as cell phones and iPods, can be useful in enabling a personalized learning experience for children, encouraging children to learn outside of school, and reaching underserved children.
        Children with digital media skills are also likely to be better positioned to compete in today's workplace. As a greater number of workplaces incorporate computers and the Internet into everyday work activities, the ability of young people to use these tools becomes critical to ensuring the availability of job opportunities. One study has suggested that teaching at-risk youth marketable skills such as word processing, Web design, desktop publishing, or video production can help them find jobs and resume their education.

        For older children and youth, new forms of media have opened up new ways of communicating with peers and family. Cell phones, text messaging, and social networking sites, for example, have become important means by which many youths communicate with peers and parents. Studies have suggested that these communication tools are used by adolescents primarily to reinforce existing relationships and can have a positive impact on their social connections.
        There is also evidence that media tools can improve children's health. One study has noted that a variety of media solutions are being used today to promote better health outcomes for children, including the development of interactive games and social networking programs to help children understand and self-manage chronic conditions. Another study found that media tools can provide a resource for children to help them learn about important health topics, including nutrition, and to influence healthy behavior.
        Evidence also suggests that media technology can help those with disabilities by, for example, assisting those with vision impairments to read, providing on-screen translations to the hearing-impaired, and enabling the physically impaired to work or take care of themselves at home.
        We seek comment on the benefits identified above as well as other potential gains from children's media use. What do child psychologists, educators, and academics know today about the favorable effects of media on children? Do the benefits to children vary depending on the child's age, socio-economic class, or other factors such as disability? Are there studies other than the ones cited above that are important to consider with respect to the benefits of electronic media for children? Among the studies that have been conducted, which are most reliable or most widely recognized as providing important information on this issue? Do these studies account for the newest media technologies? Are there significant gaps in the understanding of the benefits of electronic media to children that should be filled by further studies? If so, what studies should be done and what role should the Commission play in facilitating further learning about these benefits?
        Electronic media are most likely to benefit children if parents, teachers, and children are aware of the possible benefits. We seek further information about the level of awareness among parents, teachers, and children of the benefits of electronic media. While some parents make efforts to ensure that their children are exposed to beneficial media, other parents may not be engaged with their children's media use, may be unfamiliar with the potential benefits of media use, or may not be technically competent to assist their children with electronic media. What efforts can be taken to ensure that all children receive the benefits of electronic media? What efforts have been made and should be made to educate parents and teachers about how to harness the benefits of electronic media for children?
        Educational Content
        Electronic media can be used to provide educational content for children, but it is unclear how much educational content is being offered today across electronic media platforms. We invite comment on this issue. Is there enough educational content for children available on electronic media today? Do sufficient marketplace incentives exist to create educational content for children, or is governmental or industry action needed to increase incentives? Is there educational content available for children with particular needs, including, for example, children whose first language is not English? Is there adequate content available for children of different ages?

        To the extent there is educational or other beneficial content available for children today, what means do parents, teachers, and children have to select or “white list” this content? In the CSVA Report, we discussed a number of technologies currently available that permit parents or others to select or “white list” content, including tools for the Internet, cell phones, and television. See CSVA Report at paragraphs 36-38, 65, 71, 99, 150. Are there examples of tools that allow parents to find and select educational content available on particular media that stand out as best practices? Could any such best practices be extended to other media?
        To the extent commenters believe there is an insufficient amount of educational or other beneficial content available for children today, we invite comment on what steps the government or industry could take to promote the development and availability of this content. Are there any partnerships between commercial entities and public or noncommercial entities that enable the creation of educational content? We note that the Children's Television Act (“CTA”) is one example of government action to promote the availability of educational content on one type of medium—broadcast television. We invite comment on whether the Commission's rules implementing the CTA have been effective in promoting the availability of educational content for children on broadcast television. We note that a 2008 Children Now study concluded that, while stations are generally meeting the three-hour-per-week core programming benchmark, most core programs focus on social-emotional lessons for children rather than cognitive-intellectual topics, such as physical science, history, or cognitive skills, and that relatively few core programs are “highly educational.” We ask commenters to describe the quality of core programming provided by commercial television licensees today. Is there a sufficient amount of cognitive/intellectual children's programming available today? Would children benefit from more cognitive/intellectual programming? We also ask commenters to describe the quality of core programming provided on broadcasters' multicast streams, as well as what steps broadcasters take to promote that programming. What are the economics of providing educational content? What is the audience size for this programming? Should the Commission consider an approach that would permit commercial entities to fund the creation of educational content to be provided by others, such as PBS. How would such a regime be implemented and enforced?
        Risks of Electronic Media for Children
        While electronic media offer numerous benefits for children, they also present risks. As discussed below, among these risks are (i) exposure to exploitative advertising; (ii) exposure to inappropriate content (such as offensive language, sexual content, violence, or hate speech); (iii) impact on health (for example, childhood obesity, tobacco use, sexual behavior, or drug and alcohol use); (iv) impact on behavior (in particular, exposure to violence leading to aggressive behavior); (v) harassment and bullying; (vi) sexual predation; (vii) fraud and scams; (viii) failure to distinguish between who can and who cannot be trusted when sharing information; and (ix) compromised privacy. We seek further information on the risks that the evolving electronic media landscape presents for children, whether parents, teachers, and children are aware of these risks, and what can be done to protect children from them.
        Potential Risks

        One significant concern with children's exposure to media is the harms that may arise from advertising specifically directed to children and used to influence children's consumption of products. Some of these products may be unhealthy food that can promote obesity. In addition, there is some evidence that younger children often do not understand the persuasive intent of advertisements, and even older children may have difficulty understanding the intent of newer marketing techniques, such as interactive, embedded, viral, and behavioral advertising that blur the line between commercial and program content.
        There is also concern about children's exposure to media content that may be inappropriate, such as offensive language, obscenity, indecency, profanity, or other content that is unsuitable for minors, as well as concern about exposure to content that could influence children to engage in behaviors that pose risks to their health. For example, studies have indicated that heavy exposure of children to violent media content may increase the likelihood of future aggressive and violent behavior, and that youth exposed to smoking in media are more susceptible to viewing smoking favorably and to becoming smokers. Studies have also noted a link between exposure of adolescents to sexual content on television and early sexual behavior, and have found that exposure to alcohol advertising and to electronic media that portray alcohol use increases adolescents' alcohol use. One study has concluded that children who spend more time playing video games are more likely to get into physical fights and be “physically heavier.” In addition, as noted above, the growing epidemic of childhood obesity has focused attention on the possible role of media use and food advertising in influencing children's body weight and eating behaviors. While many studies conclude that exposure to particular kinds of media content can pose a risk to children, there is also some evidence that too much time spent with electronic media in general can be harmful to children's health.
        The increased use of the Internet by children, including the increased use of social networking sites, creates new risks to minors online, including the danger of sexual solicitation, exposure to online harassment and bullying, frauds and scams, and compromised privacy. One study has concluded, however, that the risks minors face online, including harassment, bullying, and sexual solicitation, “are not radically different in nature or scope than the risks minors have long faced offline, and minors who are most at risk in the offline world continue to be most at risk online.” With respect to online sexual solicitation of minors, research has indicated that approximately 13 percent of youths have received sexual solicitations online, and most of these recipients are between 14 and 17 years of age. Research has also found that most sexual solicitors of children online are other adolescents rather than adults. The percentage of youths who receive sexual solicitations online has declined in recent years, however, and research has suggested that online harassment or cyberbullying of children may pose a more common threat. Although studies differ widely in the number of adolescents that report being victimized by the use of the Internet, text messages, or e-mail to embarrass or threaten them, one study conducted in 2005 found that more than 70 percent of teens had been harassed in the previous year. Concerns have been expressed also about the potential infringement of privacy and potential exploitation of children online, ranging from concerns about children posting personal information online to concerns about commercial organizations targeting children through such practices as “data-mining.” One study has concluded that 46 percent of children have disclosed personal information to someone they met online.
        We seek comment on these and other possible risks we have not identified. What are the chief harms that can befall children from using electronic media, and how serious are they? What do child psychologists, educators, and academics know today about the risks of media exposure to children? Is there a consensus about the most significant risks? Are there certain risks that are just as likely to be present even when children are not using electronic media? Do the risks vary depending on the child's age, socio-economic class, or other factors? Are there studies other than the ones cited above that are important to consider with respect to the risks electronic media pose to children? Among the studies that have been conducted, which ones are more reliable or more widely recognized as providing important information on this issue? Do these studies account for the newest media technologies? Are there important gaps in the understanding of the risks of electronic media to children that should be filled by further studies? If so, what studies should be done and what role should the Commission play in facilitating further learning about these risks?
        In addition, the level of awareness of these risks among parents, teachers, and children is unclear. We seek to learn more about how aware parents, teachers, and children are of the risks of electronic media exposure. What efforts have been made and should be made to educate parents, teachers, and children about these risks?
        Impact of Advertisements on Children
        Exposure to excessive and exploitative advertisements is a significant risk children face from electronic media. Advertisements of particular concern for children include: (i) Those that promote products specifically to children; (ii) those that promote unhealthy food, thereby contributing to childhood obesity, and (iii) those that contain inappropriate content, such as offensive language, sexual content, and violence. While we discuss below the means parents have to protect children from the risks of electronic media use, those means might be less useful in protecting children from advertisements. For example, household media rules are unlikely to be effective in protecting children from inappropriate advertisements, because parents are usually not aware of the content of a particular advertisement before a child sees it. Similarly, parental control technologies generally block entire programs or Web sites rather than specific commercials contained within otherwise acceptable content for children.
        What do child psychologists, educators, and academics know about the effects of advertisements on children? In what ways do these effects vary based on a child's age, socio-economic class, or other factors? Among the studies that have been conducted, which ones are most reliable or most widely recognized as providing important information on this issue? Do these studies consider advertisements carried on newer media technologies, such as the Internet and mobile devices? Do advertisements for beneficial products, such as nutritious foods, produce positive effects for children? Are there significant gaps in the understanding of the effects of advertisements on children that should be filled by further studies? If so, what studies should be done and what role should the Commission play in facilitating further learning about these risks?

        New digital media also make possible new forms of advertising that warrant scrutiny into how they impact children. As discussed above, these forms of advertising include interactive advertisements, including advergames, and embedded advertisements, as well as behavioral and viral advertising campaigns. To what extent are children subjected to these new forms of advertising, including when using the Internet and mobile devices? What do child psychologists, educators, and academics know about the effects of these new forms of advertising on children? Can they have a positive impact if the advertisement is for something beneficial, such as nutritious food? We note that there are pending NPRMs on interactive and embedded advertising in television. See Children's Television Obligations of Digital Television Broadcasters, Report and Order and Further Notice of Proposed Rulemaking, 19 FCC Rcd 22943, 22967 (2004) (“2004 Order and FNPRM”); Sponsorship Identification Rules and Embedded Advertising, Notice of Inquiry and Notice of Proposed Rule Making, 23 FCC Rcd 10682 (2008). Parties wishing to update the record on the issues of interactive television and embedded advertising in broadcasting and cable programming may file ex parte submissions in those proceedings.
        The CTA is an example of a governmental action to ensure that one type of medium—television—limits the amount of advertising viewed by children. Specifically, as implemented by the Commission, the CTA requires commercial television licensees, cable operators, and DBS providers to limit the amount of commercial matter that may be aired during children's television programs to not more than 10.5 minutes per hour on weekends and not more than 12 minutes per hour on weekdays. In addition, the Commission requires broadcasters to use separations or “bumpers” between programming and commercials to assist children in distinguishing between advertisements and program content. We invite information about the effectiveness of these rules in limiting commercial material viewed by children on television and how they might be improved.
        The CTA's commercial limits apply only to broadcast, cable, and satellite television. To what extent are children exposed to excessive and exploitative advertisements on media other than television? What actions, if any, should government take to create incentives to limit the exposure of children to advertisements and to promote associated policies, such as the separations policy, on these other media? Are there examples of voluntary industry efforts to limit the exposure of children to advertisements on these other media? Have these efforts been successful?
        The role of advertising in the spread of childhood obesity also warrants further study. The Commission has participated in the Task Force on Media and Childhood Obesity, which included representatives from the media, advertising, food, and beverage industries, along with consumer advocacy groups, healthcare experts, and academics. The Task Force met in an effort to examine the impact of media on childhood obesity and to explore voluntary recommendations to address the phenomenon. In addition, the Better Business Bureau has created the Children's Food and Beverage Advertising Initiative to provide food and beverage advertisers with a self-regulation mechanism for advertisements aimed at children. The Initiative is aimed at “shifting the mix of advertising messaging directed to children under 12 to encourage healthier dietary choices and healthy lifestyles.” Have these voluntary efforts to curtail advertising of unhealthy food to children proven effective? Do these commitments extend beyond television to other media platforms, such as the Internet and mobile devices? Are additional actions needed to address these concerns?
        We invite comment also on the extent to which parents are concerned about exposure of children to inappropriate content within advertisements on various media, such as offensive language, sexual content, and violence. To what extent are commercials containing inappropriate content aired during children's television programming or during general audience programming that may be viewed by children, such as sports programming? Is it feasible to block advertisements that may be inappropriate for children on various media platforms? What are the costs and benefits? What likely economic impact would this have on advertiser-supported media? If the benefits outweigh the costs, what actions could government or industry take to ensure that children are not exposed to inappropriate content? What incentives could the government provide to encourage age-appropriate advertising practices? One concern raised previously is the airing during children's television programming of promotions for upcoming television programs that may themselves contain inappropriate content. We note that the Commission's definition of “commercial matter” for purposes of the commercial time limits may discourage the airing of these inappropriate promotional materials. Specifically, the definition of “commercial matter” includes all promotions of television programs or video programming services other than “children's or other age-appropriate programming appearing on the same channel or promotions for children's educational and informational programming on any channel.” Accordingly, nonexempted promotional materials aired during programming produced for children age 12 and younger must be counted as commercial time. Has this rule limited the exposure of young children to inappropriate promotional materials during children's television programming?
        Protecting Children From the Risks
        Through household media rules and parental control tools, parents have some ability today to protect children from the risks of electronic media use. As discussed below, we seek comment on the level of awareness among parents of these protections and how effective these tools have been in combating risks posed by media consumption. We recognize that these issues may not be resolved solely by technology solutions. Accordingly, we also seek comment on non-technological solutions that will help protect children. In assessing these protections, we urge commenters to consider the impact of media convergence. While media convergence has many benefits, it may also make it more difficult for parents to protect their children from the risks of media exposure. For example, content that parents may block via the V-chip on the home television set, such as a program that is rated TV-14, may be freely accessible to their children on the Internet. Moreover, while indecency regulations apply to radio and television broadcasting, subscription services have generally received different regulatory treatment, requiring parents to take additional actions to protect children when using these services. In addition, children can now access television programming and the Internet on their mobile devices outside the home, where no parent is present. How does the mobile nature of media today affect the ability of parents to monitor their children's media consumption? What strategies have parents used to monitor their children's media exposure outside of the home? Have these strategies been effective? Is there more that government or industry should do to keep pace with this convergence and increase parents' ability to control the content to which their children are exposed? How can or should current laws be updated to reflect this convergence and to keep pace with changes in technology?

        We also note that household media rules and parental control technologies require parental involvement in their children's media use. Some parents, however, may be unaware of the risks from electronic media use or choose not to be engaged in their children's media use. Because household media rules and parental control tools will not protect children of these parents, they face increased risk of harm in the digital world. We invite comment on what can or should government or industry do to protect these children from that harm. Is teaching media literacy to children in schools starting at a young age, as discussed further below, the best way to protect these children? In addition, as children grow older, they may become more media savvy than their parents and may be able to circumvent controls put in place by their parents. What options are there to protect these children from the risks of exposure to electronic media?
        Household Media Rules
        One means for protecting children from the risks of electronic media consumption is for parents to establish rules governing their children's media use (“household media rules”). What studies describe the extent to which parents have established and implemented household media rules? Have these strategies been successful in protecting children? How can household media rules protect children when they are using technologies outside the home, such as mobile devices? Are different strategies required for newer media, such as texting and social networking sites, than for more traditional media, such as television? Are there particular rules or strategies that can serve as best practices for particular media or across media? Are there resources for parents to learn more about establishing and implementing household media rules?
        Technology and Parental Control Tools
        Another way to protect children from the risks of electronic media consumption is through the use of parental control technologies. In the CSVA Report, we identified a wide range of parental control tools that exist and are available today with respect to over-the-air television, cable and satellite television, audio-only programming, wireless services, non-networked devices such as DVD players, video games, and the Internet. We found that the record in that proceeding indicated that no single parental control technology available today works across all media platforms. Moreover, even within each media platform, we found that the available technologies vary greatly with respect to certain criteria. Generally, we identified five areas for further study with respect to parental control tools across media platforms: (i) Level of consumer awareness of such tools; (ii) pace of adoption; (iii) ease of use; (iv) familiarity with and understanding of ratings systems; and (v) pace of innovation. As discussed below, we seek comment on each of these issues in order to increase our understanding of how parental control technologies can best be used to protect children in an evolving electronic media marketplace.

          Level of Consumer Awareness of the Tools. We seek comment on the extent to which parents are aware of specific parental control technologies across all media platforms. To what extent does the level of awareness differ among media? What additional promotional and educational efforts would be effective in increasing awareness of these parental control technologies? In the CSVA Report, we noted that estimates of awareness of the V-chip among parents vary from 49 percent to 69 percent. We seek comment on what actions, if any, should Congress, the Commission, or industry take to increase awareness of the V-chip as a tool to protect children from inappropriate content on broadcast television. Would a joint effort between the Commission and industry similar to that undertaken in connection with the DTV transition be effective in familiarizing parents with the available tools? If so, how should such an outreach program be most effectively structured?

          Pace of Adoption. We seek comment on the extent to which parents are adopting specific parental control technologies. To the extent that the adoption rate is low, what reasons, if any, besides lack of awareness keep parents from adopting parental control technologies, and to what extent do these reasons differ among media? For example, in the CSVA Report, we noted that adoption of control technologies may be greater for the Internet than for broadcasting and other traditional media. We invite comment on the reasons for this difference in adoption rates. We also seek comment on whether and, if so, what actions could be taken to increase adoption of parental control technologies. In the CSVA Report, we noted that estimates of V-chip adoption vary from 5 percent to 16 percent of parents. We seek comment on what actions, if any, Congress, the Commission, or industry should take to increase adoption of the V-chip. In this regard, we seek data and information about whether parents have doubts about the reliable application of the existing “TV Parental Guidelines” industry rating system by programmers or other responsible entities and, if so, whether those doubts affect parents' interest in using V-chip technology. Would improvements in the operation and visibility of the industry's Oversight Monitoring Board, which fields complaints about ratings, be helpful in addressing such doubts?

          Ease of Use. We seek comment on what, if any, features of specific parental control technologies parents find easy to use and helpful, and what features they find confusing and difficult to use. We seek comment on whether and, if so, how these technologies could be improved to make them easier for parents to use.

          Familiarity With and Understanding of the Ratings System. We seek comment on whether parents are familiar with and understand the various ratings systems currently in use and the way content is evaluated for blocking and other purposes in conjunction with specific parental control technologies. To the extent the level of familiarity or understanding is low, we seek comment on whether that lack of familiarity or understanding is impeding use of particular parental control technologies. We also seek comment on whether and, if so, what steps can be taken to increase familiarity and understanding of the various ratings systems. Are there studies or data from other countries that have ratings systems or other parental control technologies? In the CSVA Report, we noted studies indicating that many parents do not understand the existing TV Parental Guidelines used in conjunction with the V-chip. We seek comment on ways to increase understanding of the TV Parental Guidelines. Would the creation of a uniform rating system that would apply to various platforms be an appropriate objective? If so, how should such a system be structured and administered?

          Pace of Innovation. We seek comment on the pace of innovation with respect to parental control technologies. Is innovation in parental control technologies proceeding at a pace consistent with other consumer technologies (e.g., computers, mobile phones and broadband devices)? We also seek comment on whether innovation in parental control technologies is proceeding at a pace that ensures that new parental control features and devices are being developed at a rate that meets evolving parental and caregiver needs. What is driving innovation in parental control technologies—is it the force of parental concerns, or is it simply the pace of innovation in media technologies themselves? In the CSVA Report, we noted a number of areas for further study regarding innovation with respect to V-chip technology. Can the V-chip be used to select or “white list” television programs identified as “core” educational programs? How feasible would it be to add this function to the V-chip and what would be the costs and benefits of doing so? Can the current V-chip technology support an “open V-chip” that would allow parents to select from multiple ratings systems? Is further investment in the V-chip warranted, given the relatively low use of the V-chip and the increasing number of alternative parental control tools available to pay TV subscribers? What steps, if any, should Congress, the Commission, or industry take to give parents access to multiple content ratings for television in addition to ratings assigned by content producers?
        Media Literacy
        Some experts view increased media literacy and education for parents, teachers, and children as a key way to enable children to enjoy the benefits of electronic media while avoiding the potential harms. We seek comment on how great a role media literacy can play in this respect and what actions can be taken to promote media literacy.
        Is There a Minimum Necessary Level of Media Literacy?
        We seek comment on whether there is a minimum level of media literacy that parents, teachers, and children must have to ensure that children can participate effectively in modern society and enjoy the benefits of electronic media while avoiding the potential harms. By way of example, some of the necessary elements of media literacy might include knowledge of: (i) The various types of electronic media; (ii) the benefits of the electronic media landscape; (iii) how to access beneficial content; (iv) the risks of the electronic media landscape; (v) how to avoid these risks (for parents, this may include household media rules and use of parental control technologies; for children, this may include the critical thinking skills needed to make smart choices); (vi) how to distinguish between program content and advertising; and (vii) the privacy implications of using various media. Are all of these elements necessary to a minimal level of media literacy? Are there additional necessary elements? Are there studies of what parents, teachers, and children must know to be sufficiently media literate?
        Teaching Media Literacy to All Stakeholders
        We seek comment on the availability and sufficiency of media literacy training for parents, teachers, and children. To what extent is media literacy a required part of school curricula throughout the nation? Is media literacy education in schools particularly critical for those at-risk children whose parents are either unaware of the benefits and harms of media consumption or choose not to become involved in monitoring their children's media use? At what age should children begin to be taught media literacy? Is it critical for such education to begin early in a child's development? What roles do the Department of Education and other government or private organizations play in this area? Are there studies or data on the effectiveness of media literacy education and which approaches work best for particular demographics? What are current best practices on teaching media literacy? Are there limitations on the value of teaching media literacy to children? For example, are there certain issues, such as the ability to understand persuasive intent in advertising, that children under a certain age lack the cognitive ability to comprehend? We also note that schools are responsible for students' media consumption while they are in school. How do schools determine whether to use media literacy and/or control tools to protect children while consuming media in schools? What factors do schools consider in determining what is appropriate material for children to access? To what extent are schools blocking content that might be beneficial for children? Are there any studies or data available on the impact on long-range educational and/or career opportunities from limiting children's access to online resources? Is there anything that can and should be done to assist teachers and schools in managing students' media consumption and promoting students' media literacy while they are in school? How are parents and teachers taught media literacy? Are there examples of media literacy programs that could serve as a model for teaching parents and teachers? What role could or should the government, and the Commission in particular, play in ensuring that children, educators, and parents receive appropriate media literacy training? What role should the media industry play in this area?
        Resources on Media Literacy
        While there is a significant amount of information on media literacy available today, it is unclear whether parents, teachers, and children are aware of this information or whether they can find this information easily. Is there a single source today that pulls together existing information about media literacy? What are the available sources of such information? Should the government, and the Commission in particular, seek to establish an on-line resource? If so, how can the Commission best promote this resource so that parents and children are aware of it? Are there other governmental or private organizations that are working on or have already prepared such on-line resources? Are they comprehensive? Do they cover the latest technologies?
        Other Outreach
        We seek comment on other efforts that would be effective in promoting media literacy among parents, teachers, and children. Some examples of these efforts might include promotional campaigns, outreach, and public service announcements (“PSAs”). What contribution could these efforts make toward promoting media literacy?
        Coordinating Government Efforts

        We recognize that other governmental activities are underway that address one or more of the issues raised here. For example, in the Broadband Data Improvement Act, Congress directed the National Telecommunications and Information Administration (“NTIA”) to establish the Online Safety and Technology Working Group (“OSTWG”) to examine, among others things, industry efforts to promote online safety through educational efforts, parental control technology, and blocking and filtering software. See Broadband Data Improvement Act, Public Law 110-385, section 214(b), 122 Stat. 4096, 4104 (2008). Specifically, OSTWG is charged with reviewing and evaluating the following issues:
        (1) The status of industry efforts to promote online safety through educational efforts, parental control technology, blocking and filtering software, age-appropriate labels for content or other technologies or initiatives designed to promote a safe online environment for children;
        (2) The status of industry efforts to promote online safety among providers of electronic communications services and remote computing services by reporting apparent child pornography under section 13032 of title 42, United States Code, including any obstacles to such reporting;
        (3) The practices of electronic communications service providers and remote computing service providers related to record retention in connection with crimes against children; and
        (4) The development of technologies to help parents shield their children from inappropriate material on the Internet.

          See id. The same law requires the Federal Trade Commission (“FTC”) to carry out a nationwide program to increase public awareness and provide education about strategies to promote the safe use of the Internet by children, including encouraging best practices for Internet safety. The Adam Walsh Child Protection and Safety Act of 2006 authorizes the Attorney General, in consultation with the National Center for Missing and Exploited Children, to carry out a public awareness campaign to demonstrate to children, parents, and community leaders how to protect children better on the Internet. The same law directs the Attorney General to make grants to States, units of local government, and nonprofit organizations to establish programs for educating children and parents in the best ways for children to be safe when on the Internet. Pursuant to the Children's Online Privacy Protection Act, the FTC has adopted rules detailing, among other things, the responsibilities of Web site operators that seek to collect information from children under the age of 13.
        The Commission recently partnered with OnGuard Online, a partnership with 11 Federal agencies and 17 groups concerned with safety, hosted by the FTC, which provides practical tips “to help you be on guard against Internet fraud, secure your computer, and protect your personal information.” OnGuard Online provides educational material, videos, and games on a wide range of subjects including e-mail scams, identity theft, kids privacy, social networking sites, spyware, and phishing. Much of the material can be downloaded, printed, embedded in third party Web sites, and otherwise widely used and distributed. The Commission looks forward to participating in and contributing to OnGuard Online.
        We seek comment on any additional efforts underway, at either the Federal or State level, that address the issues raised in this NOI. What can the Commission do to assist these existing governmental efforts? Are there areas that the government is not currently addressing that the Commission should address? Which of the ongoing governmental activities encompass media platforms other than online media, including television, radio, audio devices, and video games?
        Legal Authority
        We note that the Commission has varying degrees of statutory authority with respect to different media. We ask commenters, in proposing any action, to discuss the source and extent of the Commission's authority to take the action, or whether new legislation would be needed to authorize such action. In addition, as discussed above, commenters should discuss the compatibility of any proposed action with the First Amendment.
        Procedural Matters
        Ex Parte Presentations
        This is an exempt proceeding in which ex parte presentations are permitted (except during the Sunshine Agenda period) and need not be disclosed.
        Comment Filing Procedures
        Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR sections 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies.
        • Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov. Filers should follow the instructions provided on the Web site for submitting comments.

        • In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to ecfs@fcc.gov, and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response.
        • Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking 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 (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

        • The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
        • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
        • U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington, DC 20554.

          People With Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).
        Comments and reply comments will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS. Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.

          Additional Information. For additional information on this proceeding, contact David Konczal, David.Konczal@fcc.gov; Kim Matthews, Kim.Matthews@fcc.gov; or Holly Saurer, Holly.Saurer@fcc.gov; of the Media Bureau, Policy Division, (202) 418-2120.
        Ordering Clauses
        Accordingly, it is ordered, pursuant to the authority contained in Sections 1, 4(i) and (j), 303(r), and 403 of the Communications Act of 1934, 47 U.S.C. sections 151, 154(i) and (j), 303(r), and 403, that this Notice of Inquiry is adopted.

          Marlene H. Dortch,
          Secretary, Federal Communications Commission.

      [FR Doc. E9-27664 Filed 11-23-09; 8:45 am]
      BILLING CODE 6712-01-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AU48
        Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Wintering Population of the Piping Plover

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period, notice of availability of draft economic analysis and draft environmental assessment, and announcement of public hearing.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the availability of the draft economic analysis and draft environmental assessment, the reopening of the public comment period, and a public hearing on the proposed revised designation of critical habitat for the wintering population of the piping plover (Charadrius melodus) under the Endangered Species Act of 1973, as amended (Act). We are reopening the public comment period to allow all interested parties an opportunity to comment simultaneously on the proposed rule and the associated draft economic analysis and draft environmental assessment. The draft economic analysis finds that costs associated with conservation activities for the wintering population of the piping plover in North Carolina are forecasted to range from $0 to $12.2 million in lost consumer surplus and $0 to $21.1 million in lost trip expenditures in undiscounted dollars over the next 20 years, with an additional $32,000 to $79,000 in administrative costs. Discounted impacts are estimated to range from $0 to $6.2 million in lost consumer surplus and $0 to $10.6 million in lost trip expenditures over 20 years using a real rate of seven percent, with an additional $17,000 to $42,000 in administrative costs. This amounts to $0 to $503,000 in lost consumer surplus and $0 to $861,000 in lost trip expenditures, annually. Using a real rate of three percent, discounted impacts are estimated at $0 to $8.9 million in lost consumer surplus and $0 to $15.4 million in lost trip expenditures over the next 20 years, with an additional $24,000 to $59,000 in administrative costs. This amounts to $2,000 to $600,000 in lost consumer surplus and $0 to $1.0 million in lost trip expenditures, annually. The draft environmental assessment finds that designation of critical habitat would not impose any physical alteration of the physical or biological communities used by the wintering population of the piping plover, nor would it alter any social, cultural, or recreational resources or the use of such resources beyond current conditions or existing management strategies. Comments previously submitted need not be resubmitted as they will be incorporated into the public record and fully considered in preparation of the final rule.

          DATES:

            Written comments: We will accept public comments until July 30, 2007.

            Public hearing: We will hold a public hearing on the proposed revised designation of critical habitat, and the draft economic analysis and draft environmental assessment, from 5 p.m. to 7 p.m. on June 20, 2007. The public hearing will be preceded by a public information session from 4 p.m. to 5 p.m. at the same location (see Public hearing under ADDRESSES).

          ADDRESSES:

            Written comments: If you wish to comment, you may submit your comments and information concerning this proposal, identified by “Attn: Wintering Piping Plover Critical Habitat,” by any one of the following methods:

          1. Mail to Pete Benjamin, Field Supervisor, U.S. Fish and Wildlife Service, Raleigh Field Office, P.O. Box 33726, Raleigh, NC 27636-3726.

          2. Hand-deliver to Raleigh Field Office, 551-F Pylon Drive, Raleigh, NC 27606.
          3. Electronic mail (e-mail) to ncplovercomments@fws.gov. Please see the “Public Comments Solicited” section under SUPPLEMENTARY INFORMATION for file format and other information about electronic filing.
          4. Fax to 919-856-4556.
          5. Federal eRulemaking Portal at: http://www.regulations.gov. Follow the instructions for submitting comments.

            Public hearing: The public hearing on the proposed revised critical habitat designation, draft economic analysis, and draft environmental assessment will take place at the Fessenden Center, 46830 Highway 12, Buxton, Dare County, North Carolina. Maps of the proposal and other materials will be available for public review.

            Availability of supporting documentation: Comments and materials received, as well as supporting documentation used in the preparation of the proposed rule, will be available for public inspection by appointment during normal business hours at the Raleigh Field Office (see addresses above).

          FOR FURTHER INFORMATION CONTACT:
          Pete Benjamin, Field Supervisor, U.S. Fish and Wildlife Service, Raleigh Field Office, telephone 919-856-4520 extension 11, fax 919-856-4556. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:

        Public Comments Solicited
        We intend that any final action resulting from the proposal will be as accurate and as effective as possible. Therefore, comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning the proposed rule, draft economic analysis, and draft environmental assessment are hereby solicited. Comments particularly are sought concerning:

        (1) The reasons any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 et seq.), including whether the benefit of designation would outweigh any threats to the species due to designation;
        (2) Specific information on the amount and distribution of wintering piping plover habitat in North Carolina, and what areas should be included in the designation that were occupied at the time of listing that contain the features that are essential for the conservation of the species and why, and what areas that were not occupied at the time of listing are essential to the conservation of the species and why;
        (3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed revised critical habitat;
        (4) Any foreseeable economic, national security, or other potential impacts resulting from the proposed revised designation and, in particular, any impacts on small entities;
        (5) Any foreseeable environmental impacts directly or indirectly resulting from the proposed revised designation of critical habitat;
        (6) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding or to assist us in accommodating public concerns and comments;
        (7) Whether our determination of areas identified as not being in need of special management is accurate;
        (8) Information to assist the Secretary of the Interior in evaluating habitat with physical and biological features essential to the conservation of the piping plover on Cape Hatteras National Seashore, administered by the National Park Service, based on any benefit provided by the Interim Protected Species Management Strategy/Environmental Assessment to the conservation of the wintering piping plover;
        (9) Whether the draft economic analysis identifies all State and local costs attributable to the proposed revised critical habitat designation, and information on any costs that have been inadvertently overlooked;
        (10) Whether the draft economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes that would be imposed as a result of the designation of revised critical habitat;
        (11) Whether the draft economic analysis correctly assesses the effect on regional costs associated with any land use controls that may derive from the designation of the proposed revised critical habitat;
        (12) Whether the draft economic analysis appropriately identifies all costs and benefits that could result from the proposed revised designation; and
        (13) Whether there is any information to suggest that beach recreation might increase as a result of this designation, and whether the effects of any such increased visitation can be quantified.

        If you wish to comment, you may submit your comments and materials concerning the proposal by any one of several methods (see ADDRESSES). Please note that comments merely stating support or opposition to the actions under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations to be made “solely on the basis of the best scientific and commercial data available.” If you submit comments electronically, include “Attn: Wintering Piping Plover Critical Habitat” in your e-mail subject header and your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your electronic message, contact us directly by calling the Raleigh Field Office at 919-856-4520. Please note that the e-mail address ncplovercomments@fws.gov will be closed at the termination of the public comment period.
        Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

        Copies of the draft economic analysis and draft environmental assessment and the revised proposed rule for critical habitat designation are available on the Internet at http://www.fws.gov/nc-es or from the Raleigh Field Office at the address and contact numbers above.

        Our final determination on the designation of revised critical habitat will take into consideration all comments and any additional information we received during both comment periods. Previous comments and information submitted during the initial comment period on the June 12, 2006, proposed rule (71 FR 33703) need not be resubmitted. On the basis of information received during the public comment periods, we may, during the development of our final revised critical habitat determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion. An area may be excluded from critical habitat if it is determined that the benefits of such exclusion outweigh the benefits of including a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species. We may exclude an area from designated critical habitat based on economic impacts, national security, or any other relevant impact.
        Background

        We first designated critical habitat for the wintering population of the piping plover on July 10, 2001 (66 FR 36038). In 2004, the U.S. District Court for the District of Columbia remanded to us the 2001 designation of four units located at the Cape Hatteras National Seashore in Dare and Hyde counties, North Carolina (Cape Hatteras Access Preservation Alliance v. U.S. Department of the Interior, 344 F. Supp 2d 108). On June 12, 2006, we published a proposed rule to designate revised critical habitat for the wintering population of the piping plover in North Carolina (71 FR 33703). That proposed rule describes four coastal areas (units), totaling approximately 1,827 acres (ac) (739 hectares (ha)) within Cape Hatteras National Seashore, as critical habitat for the wintering population of the piping plover. These four units contain a contiguous mix of intertidal beaches and sand or mud flats (between annual low tide and annual high tide) with little or no emergent vegetation, and adjacent areas of unvegetated or sparsely vegetated dune systems and sand or mud flats above annual high tide.
        In our June 12, 2006, proposed rule, we also proposed excluding from the units the islands DR-005-05 and DR-005-06 (Dare County) and DR-009-03/04 (Dare and Hyde counties), owned by the State of North Carolina, and about 237 ac (96 ha) of Pea Island National Wildlife Refuge (Dare County). Based on a determination following our analysis under sections 4(b)(2) and 3(5)(A) of the Act, these areas were proposed for exclusion from critical habitat because they are either protected by existing habitat conservation plans or do not require special management considerations or protection.

        The four proposed revised units, combined with the areas proposed for exclusion, constitute our best assessment of those areas containing features essential to the conservation of the species. We will submit for publication in the Federal Register a final revised critical habitat designation for the wintering population of the piping plover on or before January 16, 2008.
        Critical habitat is defined in section 3 of the Act as the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the revised proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act.
        Economic Analysis
        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic or any other relevant impact of specifying any particular area as critical habitat. We have prepared a draft economic analysis based on the June 12, 2006, proposed rule (71 FR 33703) to revise critical habitat for the wintering population of the piping plover.
        The draft economic analysis estimates the foreseeable economic impacts of conservation measures for the wintering population of the piping plover within the proposed revised critical habitat designation on government agencies and private businesses and individuals. Specifically, the analysis measures how management activities undertaken by the National Park Service to protect wintering piping plover habitat against the threat of off-road vehicle (ORV) use may affect the value of the beaches to ORV users and the region. In this analysis, it is assumed that the primary management tool employed for wintering piping plover conservation could be the implementation of closures of certain portions of the beach. The Service believes, however, that additional closures due to wintering piping plovers are unlikely. These closures are considered as reducing the opportunity for recreational activities, such as ORV use. At this time, the National Park Service is not undertaking any other activities on which it expects to be required to consult in the future. Other than recreational activities, the Park Service also does not know of any projects or activities, such as U.S. Army Corps of Engineers dredging, that could potentially be affected by critical habitat. The analysis, therefore, focuses on the effect of public closures of beaches on ORV use and the potential administrative costs to the National Park Service resulting from additional section 7 consultations and other administrative duties caused by designation of critical habitat. Our analysis reflects that recreation may be affected under one of two possible scenarios: The high-end scenario estimates a percentage of ORV trips to proposed revised designated critical habitat areas would be lost, and the low-end scenario assumes no trips would be lost.
        The draft economic analysis forecasts that costs associated with conservation activities for the wintering population of the piping plover in North Carolina would range from $0 to $12.2 million in lost consumer surplus and $0 to $21.1 million in lost trip expenditures in undiscounted dollars over the next 20 years, with an additional $32,000 to $79,000 in administrative costs. Discounted forecast impacts are estimated to range from $0 to $6.2 million in lost consumer surplus and $0 to $10.6 million in lost trip expenditures over 20 years using a real rate of seven percent, with an additional $17,000 to $42,000 in administrative costs. This amounts to $0 to $503,000 in lost consumer surplus and $0 to $861,000 in lost trip expenditures, annually. Using a real rate of three percent, discounted forecast impacts are estimated at $0 to $8.9 million in lost consumer surplus and $0 to $15.4 million in lost trip expenditures over the next 20 years, with an additional $24,000 to $59,000 in administrative costs. This amounts to $2,000 to $600,000 in lost consumer surplus and $0 to $1.0 million in lost trip expenditures, annually. Of the four units proposed as critical habitat, unit NC-2 is calculated to experience the highest estimated costs (about 40 percent) in both lost consumer surplus ($0 to $4.9 million, undiscounted) and lost trip expenditures ($0 to $8.4 million, undiscounted). Units NC-4, NC-5, and NC-1 account for about 26, 20, and 14 percent, respectively, of the total potential impacts.

        The draft economic analysis considers the potential economic effects of all actions relating to the conservation of the wintering population of the piping plover, including costs associated with section 7 of the Act and those costs attributable to designating critical habitat. It further considers the economic effects of protective measures taken as a result of other Federal, State, and local laws that aid habitat conservation for the wintering population of the piping plover in proposed revised critical habitat areas. The draft analysis considers both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect lost economic opportunities associated with restrictions on land use (opportunity costs). This analysis also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on small entities and the energy industry. This information can be used by decision-makers to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, this draft analysis looks retrospectively at costs that have been incurred since the date the species was listed as threatened and considers those costs that may occur in the 20 years following the revision of critical habitat.
        As stated earlier, we solicit data and comments from the public on this draft economic analysis, as well as on all aspects of the proposal. We may revise the proposal, or its supporting documents, to incorporate or address new information received during the comment period.
        National Environmental Policy Act

        The court decision ordering us to revise the critical habitat designation also ordered us to prepare an environmental analysis of the proposed designation under the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.). To comply with the court's order, we have prepared a draft environmental assessment pursuant to the requirements of NEPA as implemented by the Council on Environmental Quality regulations (40 CFR 1500-1508) and according to the Department of the Interior's NEPA procedures. The draft environmental assessment is based on the June 12, 2006, proposed rule (71 FR 33703). The scope of the environmental assessment includes an evaluation of the impact of the proposed designation of the four revised critical habitat units (Units NC-1, NC-2, NC-4, and NC-5) for the wintering population of the piping plover. The draft environmental assessment presents the purpose of and need for critical habitat designation, the No Action and Preferred alternatives, and an evaluation of the direct, indirect, and cumulative effects of the alternatives. Within the analysis is the option to designate only some of the units or some portion of the units identified in the proposed rule. Following the analyses of sections 4(b)(2) and 3(5)(A) of the Act, the consideration of impacts and special management or protection at a unit level may result in alternative combinations of proposed habitat that may or may not ultimately be designated as critical habitat. For a more complete description of the application of section 3(5)(A) and exclusions under section 4(b)(2) of the Act, see our proposed rule (June 12, 2006; 71 FR 33703).
        The environmental assessment will be used by the Service to determine if critical habitat should be designated as proposed, if the Action Alternative requires refinement, or if further analyses are needed through preparation of an Environmental Impact Statement. If the Action Alternative is selected as described, or with minimal changes, and no further environmental analyses are needed, then the Service will conclude the NEPA process by issuing a Finding of No Significant Impact.
        As stated earlier, we solicit data and comments from the public on this draft environmental assessment, as well as on all other aspects of the proposal. We may revise the proposal, or its supporting documents, to incorporate or address new information received during the comment period.
        Required Determinations—Amended
        Regulatory Planning and Review

        In accordance with Executive Order 12866, this document is a significant rule because it may raise novel legal and policy issues. However, it is not anticipated to have an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the timeline for publication in the Federal Register, the Office of Management and Budget did not formally review the proposed rule.
        Further, Executive Order 12866 directs Federal agencies promulgating regulations to evaluate regulatory alternatives (Office of Management and Budget, Circular A-4, September 17, 2003). Pursuant to Circular A-4, once it has been determined that the Federal regulatory action is appropriate, the agency will need to consider alternative regulatory approaches. Since the determination of critical habitat is a statutory requirement under the Act, we must then evaluate alternative regulatory approaches, where feasible, when promulgating a designation of critical habitat.
        In developing our designations of critical habitat, we consider economic impacts, impacts to national security, and other relevant impacts pursuant to section 4(b)(2) of the Act. Based on the discretion allowable under this provision, we may exclude any particular area from the designation of critical habitat provided that the benefits of such exclusion outweigh the benefits of specifying the area as critical habitat and that such exclusion would not result in the extinction of the species. We believe that the evaluation of the inclusion or exclusion of particular areas, or combination thereof, in a designation constitutes our regulatory alternative analysis.
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of 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 (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. In our proposed rule, we withheld our determination of whether this designation would result in a significant effect as defined under SBREFA until we completed our draft economic analysis of the proposed designation so that we would have the factual basis for our determination.

        According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations, and small governmental jurisdictions, including school boards and city, town, and county governments that serve fewer than 50,000 residents (for example, Dare and Hyde counties), as well as small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities, including Dare County and Hyde County governmental entities, are significant, we considered in our economic analysis the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
        To determine if the proposed revised critical habitat designation for the wintering population of the piping plover would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities (for example, residential and commercial development). We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and so will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies.
        In our draft economic analysis, we evaluated the potential economic effects on small business and governmental entities resulting from conservation actions related to the proposed revised designation of critical habitat for the wintering population of the piping plover. This analysis estimated prospective economic impacts due to the implementation of wintering piping plover conservation efforts in two categories: Recreation (particularly ORV use), and section 7 consultation undertaken by the National Park Service. We determined from our analysis that impacts of section 7 consultation are not anticipated to affect small business or governmental entities because the costs of consultation are borne entirely by the National Park Service. The loss of trips would impact local businesses that serve the area, because lost trips would have generated visitor expenditures on such items as food, lodging, shopping, transportation, entertainment, and recreation. See “Economic Analysis” section above and the draft economic analysis for a more detailed discussion of estimated discounted impacts.
        Approximately 93 percent of businesses in affected industry sectors in both counties are small. Assuming that all expenditures are lost only by small businesses and that these expenditures are distributed equally across all small businesses in both counties, each small business may experience a reduction in annual sales of between $349 and $3,429, depending on its industry. Specifically, the entertainment industry may expect a loss of $349 if no trips are lost and $524 if trips are lost. The food industry may expect a loss of $426 and $641 for no trips lost and trips lost, respectively. The shopping industry may expect a loss of $730 and $1,097, and lodging may expect a loss of $1,930 to $2,902 for no trips lost and trips lost, respectively. The transportation industry may expect a loss of $2,281 if no trips are lost and $3,429 if trips are lost. If the small business is generating annual sales just under the SBA small business threshold for its industry, this loss represents between 0.01 and 0.04 percent of its annual sales (0.01 percent for food, shopping, and entertainment; 0.03 to 0.04 percent for lodging and transportation). The Service concludes that this is not a significant economic impact.
        Assuming that each small business has annual sales just under its SBA industry small business threshold may underestimate lost expenditures as a percentage of annual sales. It is likely that most small businesses have annual sales well below the threshold. However, even if a business has annual sales below the small business threshold for its particular industry, it is probable that lost expenditures still are relatively small compared to annual sales. For example, if a small business has annual sales that are a tenth of its SBA small business threshold, potential losses still only represent between 0.05 and 0.45 percent of its annual sales.
        Therefore, we do not believe that the designation of critical habitat for the wintering piping plover would result in a disproportionate effect to small business entities.
        Executive Order 13211
        On May 18, 2001, the President issued Executive Order (E.O.) 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule is considered a significant regulatory action under E.O. 12866 because it raises novel legal and policy issues, but it is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant action, and no Statement of Energy Effects is required.
        Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
        In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:
        (a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”

        The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Non-Federal entities that receive Federal funding, assistance, permits, or otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.
        (b) As discussed in the draft economic analysis of the proposed revised designation of critical habitat for the wintering population of the piping plover, we believe that impacts to small governments are not expected because only Federal lands are proposed for designation. As such, it is unlikely that small governments will be involved with projects involving section 7 consultations for the wintering population of the piping plover within their jurisdictional areas. Consequently, we do not believe that the designation of critical habitat for this species would significantly or uniquely affect these small governmental entities. As such, a Small Government Agency Plan is not required.
        Takings
        In accordance with E.O. 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing revised critical habitat for the wintering population of the piping plover. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. In conclusion, the designation of the revised critical habitat for this species would not pose significant takings implications.
        Author

        The primary author of this notice is David Rabon of the Raleigh Field Office (see ADDRESSES).

          Authority

          The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

          Dated: May 24, 2007.
           Todd Willens,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. E7-10476 Filed 5-30-07; 8:45 am]
      BILLING CODE 4310-55-P