        DEPARTMENT OF TRANSPORTATION
        Surface Transportation Board
        49 CFR Parts 1150 and 1180
        [STB Ex Parte No. 659]
        Public Participation in Class Exemption Proceedings

          AGENCY:
          Surface Transportation Board.

          ACTION:
          Notice of Proposed Rulemaking.

          SUMMARY:
          The Surface Transportation Board, having assessed its procedures for transactions qualifying for the 7- and 21-day class exemptions proposes to modify the timeframes in its rules to provide greater public notice in advance of an exempt transaction. The proposed changes are intended to ensure that the public is given notice of a proposed transaction before the exemption becomes effective; and that the Board may process such notices of exemption, and related petitions for stay, if any, in an orderly and timely fashion.

          DATES:
          Comments are due on May 15, 2006. Replies are due on June 14, 2006.

          ADDRESSES:

          Comments may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should comply with the instructions found on the Board's “http://www.stb.dot.gov” Web site, at the “E-FILING” link. Any person submitting a filing in the traditional paper format should send an original and 10 paper copies of the filing (referring to STB Ex Parte No. 659) to: Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001. Comments must be filed in accordance with the Board's requirements at 49 CFR part 1104.

          Copies of written comments will be available from the Board's contractor, ASAP Document Solutions (mailing address: Suite 103, 9332 Annapolis Rd., Lanham, MD 20706; e-mail address: asapdc@verizon.net; telephone number: 202-306-4004). The comments will also be available for viewing and self-copying in the Board's Public Docket Room, Room 755, and will be posted to the Board's Web site at http://www.stb.dot.gov.

          FOR FURTHER INFORMATION CONTACT:
          Joseph H. Dettmar, (202) 565-1609. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]

        SUPPLEMENTARY INFORMATION:

        The purpose of this notice of proposed rulemaking (NPRM) is to obtain comments on a proposal to provide the public with additional notice that certain of the Board's class exemptions have been invoked before those exemptions become effective. These class exemptions are proposed to be modified only as described herein. The scope, purpose and effect of these rules otherwise remains the same. Thus, the Board does not propose to make any changes to situations in which a class exemption can be used, or the information that entities seeking to use a class exemption must provide. This proceeding is based on the Board's exemption authority at 49 U.S.C. 10502. The rules that are the subject of this proposal (those found at 49 CFR part 1150 subpart D (Exempt Transactions Under 49 U.S.C. 10901), 49 CFR part 1150 subpart E (Exempt Transactions Under 49 U.S.C. 10902 for Class III Rail Carriers), and 49 CFR part 1180 subpart A (General Acquisition Procedures)) were established in the following agency proceedings: Class Exemption for the Acquisition and Operation of Rail Lines Under 49 U.S.C. 10901, Ex Parte No. 392; Class Exemption for the Acquisition or Operation of Rail Lines by Class III Rail Carriers Under 49 U.S.C. 10902, STB Ex Parte No. 529; and Railroad Consolidation Procedures, STB Ex Parte No. 282. For administrative convenience, a single new docket number is being used to permit consolidated consideration of the proposed procedural changes in one proceeding.
        Overview

        Under 49 U.S.C. 10502(a), the Board may exempt individual transactions or classes of transactions from the application requirements of the statute when it finds that full regulatory scrutiny is not required and the transaction or service will be limited in scope or greater regulatory scrutiny is not needed to protect shippers from an abuse of market power. If the Board grants an exemption, it may later revoke the exemption authority if it finds that action to be necessary to carry out the rail transportation policy of 49 U.S.C. 10101 (49 U.S.C. 10502(d)), or the notice may be deemed void ab initio if it contains false or misleading information.

        There are some situations in which Board authorization is granted so routinely that the Board has put in place a “class exemption” allowing parties to use abbreviated, summary procedures for obtaining that authority, subject to after-the-fact Board review if objections are received. The Board's class exemptions provide an expedited process for railroads to obtain Board authority in routine and uncontroversial cases and some assurance that transactions qualifying for the class exemption can be consummated on a date that can be predicted in advance.
        Pursuant to 49 U.S.C. 10502, the Board and its predecessor, the Interstate Commerce Commission (ICC), have exempted certain classes of transactions from the prior approval requirements of 49 U.S.C. 10901, 10902, and 11323. By this process, class exemptions have been created for the following types of transactions that are the subject of this NPRM (collectively, the Ten Exempt Transaction Types): (1) Rail line acquisitions and similar transactions involving the creation of a Class III carrier (49 CFR part 1150 subpart D); 1
           (2) rail line acquisitions and similar transactions involving a Class III carrier (49 CFR part 1150 subpart E) 2
           (3) acquisitions of a line authorized for abandonment that do not entail major market extensions (49 CFR 1180.2(d)(1)); 3
           (4) acquisitions or continuances in control of a nonconnecting carrier or multiple nonconnecting carriers (49 CFR 1180.2(d)(2)); (5) corporate family transactions (49 CFR 1180.2(d)(3)); (6) renewals of a lease or operating agreement previously authorized (49 CFR 1180.2(d)(4)); (7) joint projects involving a rail line relocation (49 CFR 1180.2(d)(5)); (8) reincorporations in a different state (49 CFR 1180.2(d)(6)); (9) acquisitions or renewals of trackage rights (49 CFR 1180.2(d)(7)); 4
           and (10) acquisitions of temporary trackage rights (49 CFR 1180.2(d)(8)).5
           The class exemptions under 49 CFR part 1150 subparts D and E also extend to transactions involving the creation of Class I and II carriers, but the procedures at 49 CFR 1150.35 and 1150.45 differ from those applicable to transactions involving Class III carriers, and will be discussed later.6

            1 Class Exemption—Acq. & Oper. of R. Lines Under 49 U.S.C. 10901, 1 I.C.C.2d 810 (1985), aff'd, Illinois Commerce Comm'n v. ICC, 817 F.2d 145 (DC Cir. 1987).

            2 Class Exem. for Acq. or Oper. Under 49 U.S.C. 10902, 1 S.T.B. 95 (1996) (Class Exemption—10902) (reconsideration denied, STB served November 29, 1996).

            3 The class exemptions for transactions under 49 CFR 1180.2(d)(1)-(6) were adopted in Railroad Consolidation Procedures, 363 I.C.C. 200 (1980), and modest modifications have been adopted thereafter. See, e.g, Rail Consol. Proc.—Con. in Cont. of Nonconnecting Carrier, 2 I.C.C.2d 677 (1986).

            4 Railroad Consolidation Procedures, 1 I.C.C.2d 270 (1985).

            5 Railroad Consolidation Procedures, STB Ex Parte No. 282 (Sub-No. 20) (STB served May 23, 2003, modified, STB served May 17, 2004).

            6 These regulations were created pursuant to Class Exemption—Acq. & Oper. of R. Lines Under 49 U.S.C. 10901, 4 I.C.C.2d 309 (1988); and Class Exemption—10902.

        For each of the Ten Exempt Transaction Types, the Board's regulations currently provide that the exemption will become effective—and that the transaction may be consummated—7 calendar days after a notice invoking the class exemption is filed at the Board. See 49 CFR 1150.32(b), 1150.42(b), and 1180.4(g). Notice of the exemption is published in the Federal Register within 30 days of the filing except for acquisitions of trackage rights or temporary trackage rights, in which case notice is published within 20 days. See 49 CFR 1150.32(b), 1150.42(b), 1180.4(g)(1)(ii), 1180.4(g)(2)(ii), 1180.4(g)(2)(iv). Consequently, Federal Register notice of a transaction is published after the exemption has become effective and often after the transaction has been consummated.

        The regulations at 49 CFR part 1150 governing the creation of Class I and II carriers presently require that the Board be notified of the applicant's intent to file a notice of exemption at least 14 days before the notice of exemption is filed. See 49 CFR 1150.35(a), 1150.45(a). These exemptions become effective 21 days after the notice of exemption is filed. Publication in the Federal Register takes place within 30 days after the notice is filed.  See 49 CFR 1150.35(e), 1150.45(e). Once again, formal public notice of the transaction might not occur until after the transaction has been consummated.
        To ensure that the public is given notice of proposed transactions presented under one or more of the class exemptions before the exemptions become effective, and that the Board may process such notices of exemption, and related petitions for stay, if any, in an orderly and timely fashion, the Board proposes to modify these class exemption procedures.
        Proposed Procedures for the Ten Exempt Transaction Types

        As set forth in the proposed regulations below, the Board would modify the procedures for the Ten Exempt Transaction Types as follows: (1) Notice of the proposed transaction would be published in the Federal Register within 16 days of filing; (2) stay petitions would be due at least 7 days prior to the effective date of the exemption; and (3) the exemption, if not stayed, would take effect 30 days after the notice is filed.
        In arranging for Federal Register publication within 16 days of the filing, the Board would review the notice, determine if it is complete and qualifies for use of the exemption, prepare and/or edit a caption summary for publication, and forward the notice, in appropriate format, to the Office of the Federal Register. Requiring stay petitions to be filed no later than 7 days before the effective date of the exemption would permit more orderly handling of requests for stay.
        The Board also proposes that an exemption filed under these procedures would take effect 30 days after the notice has been filed. In so doing, the Board would adhere to the well-established process of setting forth a date certain by which an exempt transaction should be able to be consummated. With such a process in place, an entity seeking to invoke a class exemption would be able to structure its transaction knowing the earliest available consummation date.
        As previously noted, these modifications are purely procedural. Nothing else about these class exemptions would be changed. The types of transactions qualifying for the class exemption would not change, nor would the regulations setting forth the information to accompany a notice of exemption. Petitions to revoke an exemption could still be filed at any time.
        Procedures for Transactions That Would Create a Class I or Class II Carrier

        The Board proposes similar changes to the notice requirements at 49 CFR part 1150 subparts D and E for transactions involving the creation of a Class I or Class II carrier. As set forth in the proposed regulations, the Board would modify the procedures at 49 CFR 1150.35 and 1150.45 as follows: (1) Notice of a covered transaction would be published in the Federal Register within 16 days of filing; (2) petitions for stay would be due no later than 14 days prior to the effective date of the exemption; 7
           and (3) the exemption would take effect 45 days after filing. The 14-day advance notice of intent to file requirements currently in place would not change.

            7 As is the case now, replies to stay petitions filed under sections 1150.35 and 1150.45 would be due 7 days after the stay petition has been filed.

        In keeping with the procedural changes proposed for the Ten Exempt Transaction Types discussed above, these modifications would provide greater public notice in advance of a transaction. As now, a notice filer would have a reliable process and could predict with reasonable certainty when it should be able to consummate a transaction covered by sections 1150.35 and 1150.45. As with the proposed procedures for the Ten Exempt Transaction Types, the proposed changes to 49 CFR 1150.35 and 1150.45 are purely procedural.
        Only those class exemptions specifically referenced herein are affected by the NPRM, i.e., 49 CFR part 1150 subpart D; 49 CFR part 1150 subpart E; 49 CFR 1180.2(d)(1); 49 CFR 1180.2(d)(2); 49 CFR 1180.2(d)(3); 49 CFR 1180.2(d)(4); 49 CFR 1180.2(d)(5); 49 CFR 1180.2(d)(6); 49 CFR 1180.2(d)(7); and 49 CFR 1180.2(d)(8). Other class exemptions—for example, those for exempt construction of connecting track (49 CFR 1150.36) and for exempt abandonments and discontinuances of service and trackage rights (49 CFR 1152.50)—are not affected by this NPRM because they already provide for significantly longer notice periods.
        Comments
        The Board invites comments on the proposed regulations. Written comments (an original and 10 copies) are due on May 15, 2006. Replies are due on June 14, 2006. All comments must comply with the Board's requirements at 49 CFR part 1104.
        Regulatory Flexibility Analysis
        The Board certifies that the proposed rules, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulations, while modestly increasing the lengths of the notice requirement for the applicant, would continue to benefit individuals and entities potentially affected by transactions covered by the regulations by providing exemptions from statutory approval requirements for entire classes of transactions. These exemptions may still be invoked merely by filing a notice with the Board, so long as the requirements are met and the required processes are followed. That notice will cause the exemption to become effective as to the transaction identified in the notice in a period of time specified by rule.
        This action will not significantly affect either the quality of the human environment or the conservation of energy resources.

          List of Subjects in 49 CFR Parts 1150 and 1180
          Administrative practice and procedure, Railroads.

          Authority:
          49 U.S.C. 10502 and 5 U.S.C. 553.

          Decided: March 9, 2006.

          By the Board, Chairman Buttrey and Vice Chairman Mulvey.
          Vernon A. Williams,
          Secretary.

        For the reasons set forth in the preamble, the Surface Transportation Board proposes to amend parts 1150 and 1180 of title 49, chapter X, of the Code of Federal Regulations as follows:

          PART 1150—CERTIFICATE TO CONSTRUCT, ACQUIRE, OR OPERATE RAILROAD LINES
          1. The authority citation for part 1150 continues to read as follows:

            Authority:
            49 U.S.C. 721(a), 10502, 10901, and 10902.

          2. Amend § 1150.32 as follows:
          A. In paragraph (b), remove the words “30 days” and add, in their place the words “16 days”.
          B. In paragraph (b), remove the words “7 days” and add, in their place, the words “30 days”.
          C. In paragraph (c), add a new sentence to the end of the paragraph as follows:

            § 1150.32
            Procedures and relevant dates—transactions that involve creation of Class III carriers.

            (c) * * * Stay petitions must be filed at least 7 days before the exemption becomes effective.

            3. Amend § 1150.35 as follows:
            A. In paragraph (e), remove the words “21 days” and add, in their place, the words “45 days”.
            B. In paragraph (e), remove the words “30 days” and add, in their place, the words “16 days”.
            C. In paragraph (f), revise the third sentence to read as follows:

            § 1150.35
            Procedures and relevant dates—transactions that involve creation of Class I or Class II carriers.

            (f) * * * Stay petitions must be filed at least 14 days before the exemption becomes effective. * * *

            4. Amend § 1150.42 as follows:
            A. In paragraph (b), remove the words “30 days” and add, in their place, the words “16 days”.
            B. In paragraph (b), remove the words “7 days” and add, in their place, the words “30 days”.
            C. In paragraph (c), add a new sentence to the end of the paragraph as follows:

            § 1150.42
            Procedures and relevant dates for small line acquisitions.

            (c) * * * Stay petitions must be filed at least 7 days before the exemption becomes effective.

            5. Amend § 1150.45 as follows:
            A. In paragraph (e), remove the words “21 days” and add, in their place, the words “45 days”.
            B. In paragraph (e), remove the words “30 days” and add, in their place, the words “16 days”.
            C. In paragraph (f), revise the third sentence to read as follows:

            § 1150.45
            Procedures and relevant dates—transactions under section 10902 that involve creation of Class I or Class II rail carriers.

            (f) * * * Stay petitions must be filed at least 14 days before the exemption becomes effective. * * *

          PART 1180—RAILROAD ACQUISITION, CONTROL, MERGER, CONSOLIDATION PROJECT, TRACKAGE RIGHTS, AND LEASE PROCEDURES
          6. The authority citation for part 1180 continues to read as follows:

            Authority:
            5 U.S.C. 553 and 559; 11 U.S.C. 1172; 49 U.S.C. 721, 10502, 11323-11325.

          7. Amend § 1180.4 as follows:
          A. In paragraph (g)(1) introductory text, remove the words “one week” and add, in their place, the words “30 days”.
          B. In paragraph (g)(1)(ii), remove the words “30 days” and add, in their place, the words “16 days”.
          C. Redesignate paragraph (g)(1)(iii) as paragraph (g)(1)(iv) and add a new paragraph (g)(1)(iii).
          D. Remove paragraph (g)(2)(ii).
          E. Redesignate paragraph (g)(2)(iii) as paragraph (g)(2)(ii).
          F. Remove paragraph (g)(2)(iv).

            § 1180.4
            Procedures.

            (g) * * *
            (1) * * *
            (iii) The filing of a petition to revoke under 49 U.S.C. 10502(d) does not stay the effectiveness of an exemption. Stay petitions must be filed at least 7 days before the exemption becomes effective.

      [FR Doc. 06-2472 Filed 3-15-06; 8:45 am]
      BILLING CODE 4915-01-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R02-OAR-2014-0238; FRL-9913-74-Region-2]
        Approval and Promulgation of Air Quality Implementation Plans; New York State; Transportation Conformity Regulations

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:

          The Environmental Protection Agency (EPA) proposes to approve the State Implementation Plan (SIP) revision submitted by New York State to establish transportation conformity regulations. In the Final Rules section of this Federal Register, EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time.

          DATES:
          Comments must be received in writing by August 28, 2014.

          ADDRESSES:
          Submit your comments, identified by Docket ID Number EPA-R02-OAR-2014-0238 by one of the following methods:
          A. www.regulations.gov. Follow the on-line instructions for submitting comments.
          B. Email: Ruvo.Richard@epa.gov.
          C. Mail: EPA-R02-OAR-2014-0238, Richard Ruvo, Branch Chief, Air Programs, U.S. Environmental Protection Agency, Region II, 290 Broadway, New York, NY 10007.
          D. Hand Delivery: At the previously-listed EPA Region II address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

            Instructions: Direct your comments to Docket ID No. EPA-R02-OAR-2014-0238. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI (or otherwise protected) through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

            Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Air Programs Branch, U.S. Environmental Protection Agency, Region II, 290 Broadway, New York, NY 10007. Copies of the State submittal are available at the New York State Department of the Environmental Conservation, Division of Air Resources, 625 Broadway, Albany, NY 12233.

          FOR FURTHER INFORMATION CONTACT:
          Melanie Zeman, (212) 637-4022, or by email at zeman.melanie@epa.gov.

        SUPPLEMENTARY INFORMATION:

        For further information, please see the information provided in the direct final action, with the same title, that is located in the Rules and Regulations section of this Federal Register publication. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

          Dated: June 25, 2014.
          Judith A. Enck,
          Regional Administrator, Region 2.

      [FR Doc. 2014-16546 Filed 7-28-14; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF TRANSPORTATION
        Federal Transit Administration
        49 CFR Part 655
        [Docket No. FTA-2006-24592]
        RIN 2132-AA86
        Controlled Substances and Alcohol Misuse Testing

          AGENCY:
          Federal Transit Administration (FTA), DOT.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          The Federal Transit Administration (FTA) proposes to eliminate duplicative requirements for safety-sensitive employees of some public (mass) transportation systems, who are subject to the alcohol and controlled substances (D&A) testing requirements of both FTA and the United States Coast Guard (USCG), or FTA and the Federal Motor Carriers Safety Administration (FMCSA). Recipients could concurrently comply with FTA's D&A testing program as they comply with the testing requirements of the USCG or FMCSA. However, FTA's post-accident and reasonable suspicion testing requirements would continue to apply when accidents occur while performing public (mass) transportation activities.

          DATES:
          Comments must be received on or before August 4, 2006. Late filed comments will be considered to the extent practicable.

          ADDRESSES:

            Written Comments: Submit written comments to the Docket Management System, U.S. Department of Transportation, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. You may submit comments identified by the docket number (FTA-2006-24592) by any of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments.
          • Web Site: http://dms.dot.gov. Follow the instructions for submitting comments on the DOT electronic docket site.
          • Fax: 1-202-493-2478.
          • Hand Delivery: To the Docket Management System, Room PL-401 on the plaza  level of the Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

            Instructions: All submissions must include the agency name and docket number or Regulatory Identification Number (RIN) for this notice. Note that all comments received will be posted without change to http://dms.dot.gov, including any personal information provided.

          FOR FURTHER INFORMATION CONTACT:

          For program issues, Gerald Powers, Office of Safety and Security, (202) 366-1080 (telephone); (202) 366-7951 (fax); or Gerald.Powers@dot.gov (e-mail). For legal issues, Bruce Walker, Office of the Chief Counsel, (202) 366-4011 (telephone); (202) 366-3809 (fax); or Bruce.Walker@dot.gov (e-mail).

        SUPPLEMENTARY INFORMATION:
        I. Background
        Authority for This Proposal
        Section 3030 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: a Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, August 10, 2005), provides the Secretary of the Department of Transportation (DOT) discretion to determine whether a public transportation provider is adequately covered for drug and alcohol (D&A) testing purposes, by the D&A alcohol testing requirements of the USCG or another DOT agency.
        Previous Action by FMSCA and FTA
        FMCSA published a Federal Register notice on August 17, 2001 which eliminated duplicative D&A testing requirements for holders of Commercial Drivers Licenses (CDLs) who provide public transportation services. These motor carrier operators are subject to FMCSA regulations; however, because they receive Federal funding for public transportation activities, they are also subject to FTA's D&A regulation. FMSCA stated that its testing requirements do not apply to transit employers who are required to comply with FTA testing requirements (see 49 CFR 382.103(d)). However, FMCSA made a policy determination that CDL holders would remain subject to its rule for specific violations; hence, the potential for duplicative oversight may continue to exist.

        Subsequently, FTA undertook administrative steps to eliminate duplicative testing requirements for ferry operators by revising its policy for these operators with its Federal Register notice dated April 22, 2002. Before the notice, ferry operators receiving Federal transit funds were required to comply with the testing requirements of both FTA and USCG.
        FTA consulted with the USCG and both agencies agreed that ferries were primarily regulated by the USCG. FTA determined that for safety purposes, it was sufficient for these operators to comply with USCG's D&A testing requirements. However, because the USCG does not require random alcohol testing, it was determined the operators would remain subject to FTA's random alcohol testing requirements.
        FTA now proposes to adopt a regulatory provision that parallels FMCSA's rule for motor carrier operators who receive Federal transmit funding and to codify its previously published policy guidance for ferry operators. FTA seeks comments on this proposed rule which would allow safety-sensitive employers to concurrently comply with FTA testing requirements when they comply with FMCSA or USCG D&A requirements.
        II. Overview and General Discussion of the Proposed Rule
        A. This notice of proposed rulemaking (NPRM) would provide regulatory relief to public transportation providers by eliminating duplicative testing requirements. The NPRM proposes to amend the applicability section of the FTA's D&A regulation at 49 CFR 655.3 by revising the introductory text of paragraph (a) and adding new paragraphs (c), (d), and (e).

        Specifically, FTA proposes that a private or nonprofit motor-carrier employer, with employees who perform safety-sensitive functions regulated by both FTA and FMCSA, may determine whether or not a majority (more than 50 percent) of these employees are regulated by FMSCA. If so, the employer may opt to comply with the FMSCA testing requirements only for that class of employees. However, for safety purposes, FTA's post-accident requirements, section 655.44, would apply when an accident, as defined in section 655.4 occurs in the performance of public (mass) transportation activities.
        In exercising this option, an employer would also have discretion in determining the timeframe and the manner in which the employees' safety-sensitive functions are apportioned (i.e., daily, monthly, or annually). For audit purposes this determination would be made annually, at the beginning of the calendar year, and remain applicable throughout that calendar year.
        We note that FMSCA testing regulations do not apply to transit maintenance employees. Therefore, maintenance workers servicing transit vehicles would remain subject to 49 CFR part 655.
        B. The USCG has primary oversight over maritime operations, including ferryboats, whereas FTA's regulatory oversight stems from the fact that it provides Federal transit funding to a limited number of ferry operations. Therefore, FTA proposes as ferry operators comply with the D&A testing requirements of the USCG, they be deemed in concurrent compliance with FTA's D&A regulation.
        USCG and FTA testing requirements are substantially similar. FTA believes that the USCG regulatory scheme sufficiently addresses transit safety concerns; therefore, it would be prudent for ferry operators to comply with only one set of Federal testing requirements. However, since USCG regulations do not require random alcohol testing, for safety purposes, ferry operators would remain subject to FTA's random alcohol testing requirements at 49 CFR 655.45.
        FTA remains responsible for ensuring compliance for recipients of public (mass) transportation. Therefore, to facilitate oversight, the administrative requirements of subpart G, H, and I of 49 CFR part 655 would continue to apply to ferry operators and motor carrier operators receiving Federal public (mass) transportation funds.
        E.O. 12866, Regulatory Planning and Review
        Under Executive Order 12866, 58 FR 51735, October 4, 1993, the Department of Transportation (DOT) must examine whether this proposed rule is a “significant regulatory action.” A significant regulatory action is subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $120 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) creates a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
        This proposed rule provides administrative relief from current regulatory alcohol misuse and controlled substance testing requirements for public transportation providers; therefore, FTA believes this proposed rule is a nonsignificant regulatory action under section 3(f) of Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.
        This proposed rule is not expected to impose any new compliance costs. The only entities affected by this proposed rule are those public transportation providers that are currently subject to the alcohol misuse and controlled substance testing regimen. These requirements, if adopted will relieve these entities of duplicative Federal testing requirements. There would be no significant changes to the existing program with the publication of this rulemaking. Further, this discretionary rulemaking is provided for under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: a Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, August 10, 2005).
        Regulatory Flexibility Act
        Section 603 of the Regulatory Flexibility Act requires a Federal agency to conduct an initial regulatory flexibility analysis describing impacts to small entities when developing a Notice of Proposed Rulemaking in accordance with 5 U.S.C. 553. Currently, approximately 3000 employers are subject to FTA D&A testing requirements. Of this number, a small percentage is also subject to the D&A testing requirements of FMSCA or the USCG. This proposed rule would have the effect of eliminating the administrative burden on those few employers who are subject to multiple testing requirements by permitting them to comply with the testing requirements of only one Federal agency. The lessening of this administrative burden on these affected entities will result in no significant economic impact to these employers.
        This proposed rule will not impose any additional costs on small entities that are subject to alcohol misuse and controlled substance testing requirements. As noted above, certain public transportation providers who may be subject to the testing requirements of more than one DOT agency or the USCG will be provided statutory relief by complying with the testing requirements of only one Federal agency. FTA certifies that no further analysis is necessary because the proposed rule will not have a significant economic impact on a substantial number of small entities. FTA invites public comment on this analysis.
        Paperwork Reduction Act
        This proposed rule does not contain a collection of information that is subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Under the provisions of the Paperwork Reduction Act, FTA may not conduct or sponsor, and a person is not required to respond to or may not be penalized for failing to comply with, a collection of information unless it displays a currently valid OMB control number.
        Executive Order 13132, Federalism
        Executive Order 13132 sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have Federalism implications, that is, regulations that have substantial direct effects on the States, or on the distribution of power and responsibilities among the various levels of government. Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action.

        FTA has reviewed this proposed rule under the threshold criteria of Executive Order 13132 on Federalism and certifies that the rule would not have Federalism implications as defined by the Executive Order. The rule provides for relief from duplicative Federal alcohol misuse and controlled substance testing requirements for certain public transportation providers. The rule would not significantly affect the rights, roles, and responsibilities of States, and would involve no preemption of State law, nor would it limit State policymaking discretion.
        Unfunded Mandates Reform Act
        The proposed rule would not be an unfunded Federal mandate within the meaning of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq., and any enforceable duties that FTA would impose are a condition of Federal assistance or a duty arising from participation in a voluntary Federal program.

          List of Subjects in 49 CFR Part 655
          Alcohol testing, Drug testing, Grant programs—Transportation, Mass transportation, Reporting and recordkeeping requirements, Safety, transit, and transportation.

        For the reasons set forth in the preamble, the Federal Transit Administration proposes to amend part 655 of title 49 of the Code of Federal Regulations as follows:

          PART 655—PREVENTION OF ALCOHOL MISUSE AND PROHIBITED DRUG USE IN TRANSIT OPERATIONS
          1. The authority citation for part 655 continues to read as follows:

            Authority:
            49 U.S.C. 5331 (as amended); 49 CFR 1.51.

          2. Amend § 655.3 to revise the introductory text of paragraph (a) and to add paragraphs (c), (d) and (e) to read as follows:

            § 655.3
            Applicability.
            (a) Except as specifically excluded in paragraphs (b), (c), and (d) of this section, this part applies to:

            (b) * * *
            (c) A recipient operating a ferry regulated by the United States Coast Guard (USCG) and receiving Federal funding for public (mass) transportation activities shall follow 46 CFR parts 4 and 16, 33 CFR part 95. However, section 655.45 of this part is applicable for random alcohol testing.
            (d) A private or nonprofit employer with safety-sensitive employees, per both this part and 49 CFR part 382, may annually determine whether or not a majority (more than 50 percent) of these employees are regulated by part 382. If so, the employer may comply with the drug and alcohol testing requirements of part 382 for that calendar year. However, reasonable suspicion and post-accident testing per this part (§§ 655.43 and 655.44) remain applicable for operators when performing public (mass) transportation activities. In addition, the provisions of this part remain applicable for those safety-sensitive employees who perform maintenance on vehicles or equipment used for public (mass) transportation service.
            (e) A recipient's failure to comply with the alcohol misuse and controlled substances testing requirements of the USCG or the Federal Motor Carrier Safety Administration, as described in paragraphs (c) and (d) above, may result in a finding of noncompliance by FTA.
            (1) A finding of noncompliance may cause a recipient to become ineligible for Federal public transportation funding.
            (2) Subpart G of this part is applicable to a covered employee: (i) With a verified positive drug test result, (ii) who has a confirmed alcohol test result of 0.04 or greater, or (iii) who refuses to submit to a test.
            (3) Recipients remain subject to subparts H and I of this part.

            Issued on: May 30, 2006.
            Sandra K. Bushue,
            Deputy Administrator.

      [FR Doc. 06-5073 Filed 6-2-06; 8:45 am]
      BILLING CODE 4910-57-M


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 101
        [WT Docket No. 07-54; RM-11043; FCC 07-38]
        Amendment of the Commission's Rules To Modify Antenna Requirements for the 10.7-11.7 GHz Band

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:
          In this document, we seek comment on modifying the Commission's Rules to permit the installation of smaller antennas by Fixed Service (FS) operators in response to a petition for rulemaking filed by FiberTower, Inc. (FiberTower). In particular, we seek comment on whether these modifications would serve the public interest by facilitating the efficient use of the 11 GHz band while protecting other users in the band from interference due to the use of smaller antennas.

          DATES:
          Comments must be filed on or before May 25, 2007, and reply comments must be filed on or before June 11, 2007.

          ADDRESSES:
          Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. You may submit comments, identified by WT Docket No. 07-54, by any of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
          • People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-0530 or TTY: 202-418-0432.

          For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

          FOR FURTHER INFORMATION CONTACT:
          Brian Wondrack at 202-418-2487.

        SUPPLEMENTARY INFORMATION:
        This is a summary of the Commission's Notice of Proposed Rule Making, released March 27, 2007. The complete text of this document, including attachments and related Commission documents, is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The complete text of the Notice of Proposed Rulemaking and related Commission documents may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room, CY-B402, Washington, DC 20554, telephone 202-488-5300, facsimile 202-488-5563, or you may contact BCPI at its Web site http://www.BCPIWEB.com. When ordering documents from BCPI please provide the appropriate FCC document number, for example, FCC 07-38. The Notice of Proposed
          Rulemaking is available on the Commission's Web site: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-38A1.doc.

        Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 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. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

        • 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.

        • For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. 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).
        I. Summary of Notice of Proposed Rulemaking
        1. In the Notice of Proposed Rule Making (NPRM), the Commission, in response to a petition filed by FiberTower, Inc., initiates a rulemaking proceeding to establish a full record and determine whether to adopt modifications to part 101 of the Commission's Rules to permit the installation of smaller antennas by Fixed Service (FS) operators in the 10.7-11.7 GHz (11 GHz) band. Specifically, the NPRM seeks comment on whether the proposed rule modifications to the antenna standards and coordination procedures in part 101 serve the public interest by facilitating the efficient use of the 11 GHz band while protecting other users in the band from interference due to the use of smaller antennas.
        2. Background. The 11 GHz band is allocated within the United States on a co-primary basis to the Fixed Services (FS), licensed under part 101 of the Commission's Rules, 47 CFR part 101, and to the Fixed Satellite Service (FSS), licensed under part 25 of the Commission's Rules, 47 CFR part 25. Specifically, in the United States, the 11 GHz band is used by the FS for Local Television Transmission Service (LTTS), Private Operational Fixed Point to Point Microwave, and Common Carrier Fixed Point-to-Point Microwave operations. Although the 11 GHz band is allocated internationally for FSS on a primary basis, the use of the FSS downlink band at 11 GHz is limited, within the United States, to international systems, i.e., other than domestic systems, pursuant to 47 CFR 2.106 NG104. The Commission's purpose in adopting such a restriction was to protect incumbent microwave operations and licensees in the 11 GHz band.
        3. On July 14, 2004, FiberTower filed a petition for rulemaking proposing amendments to the antenna standards and coordination procedures governing the use microwave antennas in the 11 GHz band in order to maximize the efficient use of the spectrum. The antenna standards, which are set-forth in 47 CFR 101.115(b), are designed to maximize the use of microwave spectrum, including the 11 GHz band, while avoiding interference between operators and other users in the band. FiberTower proposed changes to those parameters that would permit the use of FS antennas with reduced mainbeam gain, increased beamwidth, and modified sidelobe suppression in the 11 GHz band, thereby effectively permitting the use of 0.61 meter antennas as an optional alternative to the 1.22 meter antennas that meet the existing technical parameters for FS in the 11 GHz band. The coordination procedures, which are set-forth in 47 CFR 101.103, exist to establish interference standards applicable to the operation of FS antennas in the 11 GHz band. FiberTower proposed amendments to the coordination procedures to protect other users in the 11 GHz band from experiencing any greater interference from a FS licensee's use of a 0.61 meter antenna than would be experienced if the FS licensee were using a 1.22 meter antenna.
        4. Need for the Rule Changes. In the NPRM, the Commission concludes that the public interest would be served by initiating a proceeding to consider the possibility of modifying the Commission's Rules to permit the installation of 0.61 meter antennas in the 11 GHz band. The Commission finds that review the technical specifications for the 11 GHz band is appropriate at this time. The Commission notes that the specifications that limit the size of FS antennas in the 11 GHz band reflect the technical sophistication of the communications equipment and the needs of the various users of the band at the time that the rules were adopted. The Commission further notes that it adopted similar technical specifications that effectively limited the size of antennas used in other bands, including those used by satellite, but has since reconsidered many of those antenna specifications in light of the technological evolution of communications equipment.

        5. The Commission tentatively concludes that the shared nature of the 11 GHz band does not preclude the Commission from facilitating the efficient use of the 11 GHz band by permitting FS users to erect 0.61 meter antennas while appropriately protecting other users in the band from harmful interference associated with the use of smaller antennas. The Commission explained in the NPRM that, although the 11 GHz band is shared on a co-primary basis with the FSS, domestic use of the 11 GHz band by the FSS has been limited, to date, because the Commission has sought to protect the use and expansion of terrestrial microwave services within the band. The Commission emphasized that its Rules explicitly limit satellite use of the 11 GHz band to international systems and that the Commission's intent and effect in adopting footnote NG104 was to limit the expansion of FSS in the 11 GHz band and protect the future use of the band for FS. However, the Commission invites comments on its tentative conclusion.
        6. Antenna Standards. Antenna standards are designed to maximize the use of microwave spectrum, including the 11 GHz band, while avoiding interference between operators and other users in the band. The Commission recognizes that the proposed use of smaller, lower-gain antennas will result in more radio frequency energy being transmitted in directions away from the actual point-to-point link on account of the relaxed radiation suppression on angles away from the centerline of the main beam as well as because users of 0.61 meter antennas will have to transmit with approximately 4.5 dB more power in order to overcome the reduced main beam gain. The Commission seeks to ensure that any proposed changes to the Commission's Rules appropriately protect other users in the band from interference due to the operation of 0.61 meter antennas. The NPRM seeks comment on whether the use of 0.61 meter antennas by FS licensees in the 11 GHz band will adversely affect other users in the band by increasing the risk of interference. The Commission seeks specific comment on the “White Paper Report on Proposed Changes to Small Antenna Standards in the 11 GHz Band” submitted by Alcatel in support of the FiberTower Petition because it suggests that the impact of deploying 0.61 meter antennas in the 11 GHz band will be minimal. The Commission also requests that parties comment on the extent to which the rules proposed by FiberTower mitigate or obviate interference concerns, or propose additional options to mitigate interference, such as a power or EIRP tradeoff.

        7. In addition to seeking comments on interference issues generally, the Commission also seeks comment on specific interference issues. For example, the Commission inquires whether an earth station operator could face a situation in which it experiences harmful interference as a result of the aggregate effect of several nearby FS antennas, even if each antenna standing alone would not create a problem. The Commission asks parties to comment on whether the use of 0.61 meter antennas by FS licensees in the 11 GHz band will adversely affect other users in the band by increasing the risk of aggregate interference, especially to earth stations. The Commission invites parties to suggest ways to avoid or mitigate instances of aggregate interference, if they were to occur. The NPRM specifically suggests that parties discuss the sufficiency of existing industry practices, coordination requirements, and interference criteria to address the possibility or occurrence of aggregate interference.
        8. The Commission also seeks comment on whether the size of the equipment and the technical characteristics of the antenna patterns make the 0.61 meter antenna more difficult to point accurately. The Commission specifically asks parties to address whether the use of smaller antennas in the 11 GHz band significantly increases the risk of interference to other users in the band due to accuracy errors in pointing the 0.61 meter antennas. The Commission therefore invites parties to discuss the likelihood, effect, and addressability of pointing errors and to comment on how the Commission has approached similar issues concerning interference due to pointing errors in the past.
        9. Coordination Procedures. Coordination procedures, set-forth in 47 CFR 101.103, exist to establish interference standards applicable to the operation of FS antennas in the 11 GHz band. The FiberTower Petition proposes amendments to the coordination requirements in 47 CFR 101.103 to protect other users in the 11 GHz band from experiencing any greater interference from the use of a 0.61 meter antenna than would be experienced by the use of a 1.22 meter antenna. Specifically, pursuant to the proposed amendments, if either an FS applicant that is attempting to frequency coordinate a 1.22 meter (or larger) antenna for use in the 11 GHz band or an FSS applicant for an earth station in the 11 GHz band predicts received interference from an FS licensee or prior applicant using a 0.61 meter antenna in the 11 GHz band, it may require the FS licensee or prior applicant using the 0.61 meter antenna to reduce predicted interference to levels no higher than would be predicted from the use of a 1.22 meter antenna. In addition, the proposed amendments only permit the FS licensee or prior applicant using a 0.61 meter antenna in the 11 GHz band to object to a prior coordination notice if it would have actual grounds to object to predicted interference if it were using a 1.22 meter antenna at the same site, polarization, frequency, bandwidth, and orientation.
        10. The Commission seeks comment on whether these amendments strike the appropriate balance between efficient spectrum use and interference protection in the 11 GHz band and requests that parties address precedent where the Commission has amended technical rules to permit the use of smaller antennas. The Commission invites parties to comment on whether the Commission's rules and industry practices are sufficient to allow parties to resolve instances where 0.61 meter antennas cause more interference than otherwise would be caused by 1.22 meter antennas.

        11. Accordingly, the Commission seeks comment on whether the proposed amendments to the part 101 antenna standards and coordination requirements would facilitate the efficient use of the 11 GHz band by affording FS licensees the flexibility to install 0.61 meter antennas in the 11 GHz band while appropriately protecting other users in the band from interference. The Commission also seeks comment on whether these changes will facilitate a range of fixed microwave applications—including those that support third generation mobile services—that are not currently being accommodated in the 11 GHz band under the existing rules governing use of the band.

        II. Initial Regulatory Flexibility Analysis

        12. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Notice of Proposed Rulemaking (NPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM provided in paragraph 29 of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.
        A. Need for, and Objectives of, the Proposed Rules
        13. In this NPRM, we seek comment on a petition for rulemaking filed by FiberTower, Inc. (FiberTower) on July 14, 2004. The FiberTower Petition requests that the Commission initiate a rulemaking to amend the technical parameters in §§ 101.103 and 101.115 of the Commission's rules that establish interference protection for operators in the 10.7-11.7 GHz (11 GHz) band in order to permit the use of 0.61 meter (“two-foot”) antennas as an optional alternative to the 1.22 meter (“four-foot”) antennas that meet the existing technical parameters for Fixed Microwave Service in the 11 GHz band. Specifically, the FiberTower Petition proposes changes to the technical parameters in § 101.115 of the Commission's rules to permit the use of Fixed Service (FS) antennas with reduced mainbeam gain, increased beamwidth, and modified sidelobe suppression in the 11 GHz band. The FiberTower Petition also proposes amendments to § 101.103 of the Commission's rules to protect other users in the 11 GHz band from experiencing any greater interference from the use of a 0.61 meter antenna than would be experienced by the use of a 1.22 meter antenna.
        14. We seek comment in this NPRM on modifying the Commission's rules to permit the installation of 0.61 meter antennas in the 11 GHz band, while appropriately protecting other users in the band. Such action could serve the public interest by facilitating the efficient use of the 11 GHz band. We tentatively conclude that the shared nature of the 11 GHz band does not preclude the Commission from facilitating the efficient use of the 11 GHz band by permitting FS users to erect 0.61 meter antennas. However, we also wish to ensure that any proposed changes to the Commission's rules appropriately protect other users in the band from increased interference due to the use of 0.61 meter antennas. To this end, we seek comments on particular interference concerns as well as on the more general issue of whether the use of 0.61 meter antennas by FS licensees in the 11 GHz band will adversely affect other users in the band by increasing the likelihood of interference.
        B. Legal Basis
        15. The proposed action is authorized pursuant to sections 1, 2, 4(i), 7, 10, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332 and 333 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 157, 160, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, and 333.
        C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply
        16. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
        17. Nationwide, there are a total of approximately 22.4 million small businesses, according to SBA data. A “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2002, there were approximately 1.6 million small organizations. The term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2002 indicate that there were 87,525 local governmental jurisdictions in the United States. We estimate that, of this total, 84,377 entities were “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small.
        18. Fixed Microwave Services. Microwave services include common carrier, private-operational fixed, and broadcast auxiliary radio services. At present, there are approximately 36,708 common carrier fixed licensees and 59,291 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission has not yet defined a small business with respect to microwave services. For purposes of the FRFA, we will use the SBA's definition applicable to Cellular and other Wireless Telecommunications companies—i.e., an entity with no more than 1,500 persons. Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this size standard, the majority of firms can be considered small. We note that the number of firms does not necessarily track the number of licensees. We estimate that all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition.
        19. Satellite Telecommunications and Other Telecommunications. There is no small business size standard developed specifically for providers of international service. The appropriate size standards under SBA rules are for the two broad census categories of “Satellite Telecommunications” and “Other Telecommunications.” Under both categories, such a business is small if it has $13.5 million or less in average annual receipts.

        20. The first category of Satellite Telecommunications “comprises establishments primarily engaged in providing point-to-point telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” For this category, Census Bureau data for 2002 show that there were a total of 371 firms that operated for the entire year. Of this total, 307 firms had annual receipts of under $10 million, and 26 firms had receipts of $10 million to $24,999,999. Consequently, we estimate that the majority of Satellite Telecommunications firms are small entities that might be affected by our action.
        21. The second category of Other Telecommunications “comprises establishments primarily engaged in (1) Providing specialized telecommunications applications, such as satellite tracking, communications telemetry, and radar station operations; or (2) providing satellite terminal stations and associated facilities operationally connected with one or more terrestrial communications systems and capable of transmitting telecommunications to or receiving telecommunications from satellite systems.” For this category, Census Bureau data for 2002 show that there were a total of 332 firms that operated for the entire year. Of this total, 259 firms had annual receipts of under $10 million and 15 firms had annual receipts of $10 million to $24,999,999. Consequently, we estimate that the majority of Other Telecommunications firms are small entities that might be affected by our action.
        22. Space Stations (Geostationary). Commission records reveal that there are 15 space station licensees. We do not request nor collect annual revenue information, and thus are unable to estimate of the number of geostationary space stations that would constitute a small business under the SBA definition cited above, or apply any rules providing special consideration for Space Station (Geostationary) licensees that are small businesses.
        23. Fixed Satellite Transmit/Receive Earth Stations. Currently there are approximately 3,390 operational fixed-satellite transmit/receive earth stations authorized for use in the C- and Ku-bands. The Commission does not request or collect annual revenue information, and thus is unable to estimate the number of earth stations that would constitute a small business under the SBA definition.
        D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements
        24. This NPRM proposes no new reporting or recordkeeping requirements. This NPRM proposes amendments to the Commission's rules to afford licensees in the Fixed Microwave Services (FS) with the flexibility to use a 0.61 meter antenna in the 11 GHz band as an optional alternative to the 1.22 meter antenna that meets the existing technical parameters for FS in the 11 GHz band. The proposed amendments would apply equally to large and small entities and benefit all FS licensees by reducing the burden of seeking individual waivers to permit the use of 0.61 meter antennas in the 11 GHz band. The Commission requests comment on how these proposed rules may be modified to reduce the burden on small entities and still meet the objectives of the proceeding.
        E. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered
        25. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof for small entities.
        26. As noted above, this NPRM proposes rules to permit the use of 0.61 meter antennas as an optional alternative to the 1.22 meter antennas that meet the existing technical parameters for FS in the 11 GHz band. Because the proposed rules seek to provide FS licensees in the 11 GHz with additional flexibility, FS licensees retain the option of continuing to employ 1.22 meter antennas that meet the existing technical parameters for FS in the 11 GHz band. Thus, this proposed action would provide an additional option to all licensees, including small entity licensees. In this NPRM, we seek comment on this proposed action. Such action could serve the public interest by facilitating the efficient use of the 11 GHz band. The proposed rules could promote the efficient use of the spectrum and provide for a wide range of fixed microwave applications that are not currently being provided for in the 11 GHz band for financial, aesthetic, and regulatory reasons. The proposed rules could therefore open up economic opportunities to a variety of spectrum users, including small businesses. Indeed, a number of the commenting parties to support the proposed rules identify themselves as small businesses.
        27. This NPRM seeks comments on particular interference concerns as well as on the more general issue of whether the use of 0.61 meter antennas by FS licensees in the 11 GHz band will adversely affect other users in the band by increasing the likelihood of interference. The Commission invites comment on any additional significant alternatives parties believe should be considered and on how the approach outlined in the NPRM will impact small entities. The Commission will continue to examine alternatives in the future with the objectives of eliminating unnecessary regulations and minimizing any significant economic impact on small entities.
        F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule
        28. None.
        III. Ordering Clauses
        29. Pursuant to sections 1, 2, 4(i), 7, 10, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332 and 333 of the Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 157, 160, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 333, that this Notice of Proposed Rulemaking is hereby ADOPTED.
        30. Notice is hereby given of the proposed regulatory changes described in this Notice, and that comment is sought on these proposals.

        31. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send shall send a copy of this NPRM, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

          List of Subjects in 47 CFR Part 101
          Communications equipment, Radio, Reporting and recordkeeping requirements.

          Federal Communications Commission.
          Marlene H. Dortch,
          Secretary.

        Proposed Rules
        For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 101 as follows:

          PART 101—FIXED MICROWAVE SERVICES
          1. The authority citation for part 101 continues as follows:

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

          2. Section 101.103 is amended by adding a new paragraph (j) to read as follows:

            § 101.103
            Frequency coordination procedures.

            (j) Coordination of small antennas in the 10.7-11.7 GHz band.

            (1) A licensee or prior applicant using an antenna smaller than 1.22 meters (4 feet) in diameter may object to a prior coordination notice only

            (i) If it has actual grounds to object because of predicted interference, and
            (ii) To the extent it would have grounds to object if it were using a 1.22 meter antenna at the same site, polarization, frequency, bandwidth, and orientation.
            (2) A Fixed Service applicant attempting to frequency coordinate an antenna of 1.22 meters in diameter or larger, or an applicant for a Fixed Satellite Service earth station, that predicts received interference from a licensee or prior applicant using an antenna smaller than 1.22 meters in diameter, can require the licensee or prior applicant to reduce the predicted interference to levels no higher than would be predicted from antenna of 1.22 meters in diameter.
            3. Section 101.115 is amended by revising the entry “10,700 to 11,700 5” to the table following paragraph (b)(2) to read as follows:

            § 101.115
            Directional antennas.
            (b) * * *
            (2) * * *

                Frequency (MHz)
                Category
                Maximum beam-width to 3 dB pts
                Minimum antenna Gain (dBi)
                Minimum radiation suppression to angle in degrees from centerline of main beam in decibels

                5° to 10°
                10° to 15°
                15° to 20°
                20° to 30°
                30° to 100°
                100° to 140°
                140° to 180°

                *         *         *         *         *         *         *

                10,700-11,700*
                A
                3.5
                33.5
                18
                24
                28
                32
                35
                55
                55

                B
                3.5
                33.5
                17
                24
                28
                32
                35
                40
                45

                *         *         *         *         *         *         *

      [FR Doc. E7-7796 Filed 4-24-07; 8:45 am]
      BILLING CODE 6712-01-P