        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 73
        [MB Docket No. 87-268; FCC 07-138]
        Advanced Television Systems and Their Impact Upon the Existing Television Broadcast Service

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:
          The Commission adopts an Eighth Further Notice of Proposed Rule Making (Eighth Further NPRM), to announce tentative channel designations (TCDs) for three new permittees that have recently attained permittee status. The Eighth Further NPRM identifies these permittees together with the channel we propose to assign the permittee and the specific technical facilities at which we propose to allow these stations to operate after the DTV transition. In addition, the Eighth Further NPRM identifies a number of proposals for revisions to the proposed DTV Table of Allotments and/or Appendix B reflected in the Seventh Report and Order that was adopted simultaneously with this Eighth Further NPRM. These proposed revisions were advanced by commenters in either reply comments or late-filed comments in response to the Seventh Further NPRM. As these comments propose changes to the DTV Table of Allotments and/or Appendix B as in the Seventh Report and Order that could affect other stations that may not have had adequate notice of these proposals, we identify these proposals to give affected stations an opportunity to comment.

          DATES:
          Comments for this proceeding are due on or before October 10, 2007; reply comments are due on or before October 25, 2007.

          ADDRESSES:
          You may submit comments, identified by MB Docket No. 87-268, 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:
          For additional information on this proceeding, contact Kim Matthews, of the Media Bureau, Policy Division, (202) 418-2120.

        SUPPLEMENTARY INFORMATION:

        This is a summary of the Federal Communications Commission's Eighth Further Notice of Purpose Rulemaking in MB Docket No. 87-268, FCC 07-138, adopted August 1, 2007, and released August 6, 2007. 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. These documents 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 Eighth Further Notice of Proposed Rulemaking
        1. The Seventh Further Notice of Proposed Rulemaking in this proceeding, 71 FR 66592, November 15, 2006 (Seventh Further NPRM) finalized the DTV channel election process and began the final stage of the transition of the nation's broadcast television system from analog to digital technology. Although virtually all potentially eligible stations were assigned TCDs at that time, the Seventh Further NPRM noted that some applications for station licenses remained pending, and might be granted before the adoption of the Order in this proceeding. Some of these new permittee TCDs were granted too late to allow sufficient opportunity for public comment in the Seventh Further NPRM rulemaking. In addition, several commenters submitted requests for substantive modifications to the DTV Table of Allotments or Appendix B as in the Seventh Report and Order after the close of the comment period. The Commission therefore issues this Eighth Further Notice of Proposed Rulemaking, and solicits comment on the TCDs and modification requests discussed below. We emphasize that in this Eighth Further NPRM deals exclusively with the stations described below. All comments and reply comments should relate solely to the specific situations and issues raised herein. No further proposals for modification of the DTV Table of Allotments or Appendix B as in the Seventh Report and Order will be entertained during this pleading cycle, and no such proposals should be raised during the comment or reply period.
        New Permittees
        2. As described in the Seventh Further NPRM, we are establishing a separate pleading cycle to give interested parties an opportunity for comment on new permittees that have attained permittee status too late to be considered in the Seventh Report and Order (published elsewhere in this issue). Three new permittees have attained this status since we issued the New Permittees PN: Entravision Holdings, LLC, in Pueblo, Colorado (Analog channel 48), Richland Reserve, LLC in Greeley, Colorado (Digital channel 45), and Northwest Television, Inc. (Northwest Television) in Galesburg, Illinois (Digital channel 53). Post-transition, channel 48 in Pueblo would create no additional interference, and we therefore propose channel 48 as this station's TCD. Interference analysis indicates, however, that post-transition, channel 45 in Greeley would cause 0.3 percent new interference. Therefore, we propose channel 49 as the TCD Richland Reserve, LLC. With respect to the new permittee in Galesburg, IL, because channel 53 is an out-of-core channel, an engineering analysis was conducted and it was determined that channel 8 is the best available post-transition channel in Galesburg. Channel 8 creates no new interference to the TCD of another full-power station but would interfere with licensed Class A Station WQFL-CA, Rockford, IL. However, WQFL has an application for a minor modification of license pending, which would require a waiver of the filing freeze but which, if granted, would eliminate the interference from channel 8. In order to locate an interference-free post-transition channel for Galesburg, we propose to grant WQFL-CA a waiver of the filing freeze and grant the WQFL-CA modification application, thereby resolving any potential interference, and propose channel 8 as the TCD for Northwest Television. These proposals will further amend the new DTV Table of Allotments. In addition, we propose the specific technical facilities—effective radiated power (ERP), antenna height above average terrain (HAAT), antenna radiation pattern, and geographic coordinates—at which these stations would operate after the DTV transition. The attachment also includes information on predicted service area and population coverage. Consistent with the Seventh Further NPRM, the Commission hereby invites public comment on these proposed changes to the new DTV Table of Allotments.
        Late-Filed Requests for Changes to the Table of Allotments and Appendix B

        3. As noted above, several stations filed requests for revisions to the proposed DTV Table of Allotments and/or Appendix B as in the Seventh Report and Order either during the reply comment period or after the close of the filing period. In order to facilitate a rapid transition, late-filed requests for minor adjustments or changes necessary for the station to replicate have been granted where they were unopposed and cause no impermissible interference to any other station. In some cases, although the Commission would have looked favorably on the proposal had it been timely filed, we find it necessary to provide a full opportunity to comment. This is particularly the case where the proposed changes to the DTV Table of Allotments and/or Appendix B as in the Seventh Report and Order could affect other stations. This Eighth Further NPRM identifies these late-filed requested changes, and seeks comment.
        1. Request To Make Changes That Meet the Interference Criteria
        4. WTXF, Philadelphia, PA. Fox Television Stations of Philadelphia, Inc. (Fox Philadelphia), licensee of station WTXF-TV, channel 29, and WTXF-DT, channel 42, Philadelphia, PA, received channel 42 for its TCD in the proposed DTV Table of Allotments. In late-filed comments, Fox Philadelphia asserts that the parameters described in Appendix B as in the Seventh Report and Order reflect out-of-date information, and requests that they be revised to match its CP for its authorized facility, which will replicate its analog facilities. Fox Philadelphia states that it is completing construction and expects to apply for the license to cover later this summer. We find analyzed the requested facilities for post-transition operation, and we find that WTXF would cause 1.31 percent interference to WMPT, Annapolis, MD (analog channel 22, post-transition digital channel 42), 0.58 percent interference to WSAH, Bridgeport, CT (analog channel 43, post-transition digital channel 42), and 0.86 percent interference to WNJT, Trenton, NJ (analog channel 52, post-transition digital channel 43). Because this request was filed too late to ensure a full opportunity for comment, and particularly in light of the predicted interference, we invite comment on this request in this Eighth Further NPRM.
        5. WDCA, Washington, DC. Fox Television Stations, Inc., (Fox), licensee of station WDCA-TV, channel 20, and WDCA-DT, channel 35, Washington DC, received channel 35 for its TCD in the proposed DTV Table of Allotments. Fox filed late comments requesting that the Commission modify Appendix B as in the Seventh Report and Order to reflect WDCA's actual, authorized facilities. WDCA-DT has a construction permit, FCC File No. BMPCDT-20060519ACK, that specifies facilities at its main studio where WDCA-DT is currently “located, authorized and operating,” and WDCA-DT has applied for a license to cover that Construction Permit, FCC File No. BLCDT-20070411AAH. As noted by Fox, previous engineering analysis had indicated that this location and these parameters cause no impermissible interference. The Commission proposes to grant this request and adjust the DTV Table of Allotments and Appendix B as in the Seventh Report and Order accordingly. Therefore, we solicit comments on this proposal.
        2. Request for Modified Coverage Area
        6. KOAM, Pittsburg, KS. Saga Quad States Communications (Saga), licensee of station KOAM-TV, channel 7, and KOAM-DT, channel 13, Pittsburg, KS, received channel 7 for its TCD in the proposed DTV Table of Allotments. Saga states that its current Appendix B as in the Seventh Report and Order parameters would allow it to reach only 83 percent of the audience it currently serves with its analog signal. Saga requests a revision to specify directional facilities for KOAM at an ERP of 15.33 kW, in order to more closely replicate its analog Grade B contour. Saga's internal engineering study indicates that use of a directional antenna would prevent any station from receiving impermissible interference, while still allowing KOAM to reach 94.4 percent of people reached by its analog transmitter, an outcome it argues is in the public interest. We have analyzed KOAM's request and recalculated their Appendix B as in the Seventh Report and Order facilities based on replicating the analog coverage that was used to determine their initial DTV Table of Allotments facilities. We propose to adjust the DTV Table of Allotments and Appendix B as in the Seventh Report and Order accordingly and solicit comments on this proposal.
        3. Requests for Alternative Channel Assignments
        7. KOLO, Reno, NV. Gray Television Licensee, Inc. (Gray), licensee of station KOLO-TV, channel 8, and KOLO-DT, channel 9, Reno, NV, received channel 9 for its TCD in the proposed DTV Table of Allotments. Gray currently broadcasts from the same antenna on its NTSC channel 8 and DTV channel 9. Gray states that its antenna has been optimized for channel 8 for over 45 years, and Gray expresses concern that attempting to retune the antenna for use on its TCD channel 9 could lead to serious engineering difficulties. Gray therefore requests that KOLO's TCD be changed to permit it to return to its NTSC channel 8 post-transition. Engineering analysis indicates that this proposal by Gray would cause no additional interference. The Commission proposes to grant this request and adjust the DTV Table of Allotments and Appendix B as in the Seventh Report and Order accordingly. Therefore, we solicit comments on this proposal.
        8. WEHT, Evansville, IN. Gilmore Broadcasting Corporation (Gilmore), licensee of station WEHT, channel 25, and WEHT-DT, channel 59, Evansville, IN, received channel 25 for its TCD in the proposed DTV Table of Allotments. Gilmore filed reply comments stating that WEHT could not serve its entire analog area using the TCD and parameters in the DTV Table of Allotments and Appendix B as in the Seventh Report and Order. It proposes to change its TCD to channel 7 and adjust its parameters. Gilmore states that these proposed changes will increase its service area and eliminate the interference with WRTV-DT Indianapolis, IN (analog channel 6, post-transition digital channel 25) that would be caused by operating on channel 25. Engineering analysis shows that Gilmore's proposed alternative channel would cause no additional interference. The Commission proposes to grant this request and adjust the DTV Table of Allotments and Appendix B as in the Seventh Report and Order accordingly. Therefore, we solicit comments on this proposal.
        9. KTRV, Nampa, ID. Idaho Independent Television, Inc. (IIT), licensee of KTRV, channel 12, and KTRV-DT, Nampa, Idaho, received channel 12 for its TCD in the proposed DTV Table of Allotments. IIT filed late comments stating that it wishes to retain its existing DTV facilities for post-transition operation, and requests that Appendix B as in the Seventh Report and Order be revised to reflect those facilities. IIT requests its TCD be changed to channel 13 and its antenna ID to 28309. IIT states “[t]hese licensed facilities already have passed Canadian review once before, so further international coordination should be minimal.” IIT makes no representation, however, about post-transition interference. In response to IIT's request, we studied KTRV's post-transition operation on channel 13 and propose to grant their requested channel change. We seek comment on this proposal.
        10. WUOA, Tuscaloosa, AL. The University of Alabama, singleton licensee of analog station WUOA, channel 23, Tuscaloosa, AL, received channel 23 for its TCD in the proposed DTV Table of Allotments. The University of Alabama filed an ex parte in June 2007 seeking a channel change to a low VHF channel. The comment explained that the limited resources of the public university would be most efficiently used by broadcasting on a VHF channel, because of the lower cost of construction and operation of a VHF station as compared to a UHF station. We have considered and studied the University of Alabama's request, and propose replication facilities for WUOA on channel 6. Engineering analysis shows that this alternative channel will cause no additional interference. The Commission seeks comment on this proposal.
        4. Other Requests
        11. WPCW, Jeannette, PA. CBS Corporation (CBS), parent company of the licensee of Station WPCW, channel 19, and applicant for construction permit for a DTV station on channel 49, Jeannette, PA, received channel 49 for its TCD in the proposed DTV Table of Allotments. CBS requests a change in the parameters in the proposed Appendix B as in the Seventh Report and Order for WPCW to reflect those approved by the Commission in its 2006 decision amending the pre-transition DTV Table of Allotments to substitute channel 49 for channel 30 as the digital frequency for WPCW and reallotting DTV channel 49 from Johnstown, Pennsylvania to Jeannette. Larry L. Schrecongost (Schrecongost), licensee of Class A television Station WLLS, channel 49, Indiana, Pennsylvania, opposes the CBS request and argues that the proposed DTV Table of Allotments should specify channel 30 rather than channel 49 for WPCW. Schrecongost has also filed a petition for reconsideration of the 2006 Report and Order, 71 FR 8986, February 22, 2006, which is currently pending.

        12. In 1999, the former licensee of WPCW filed a petition for rule making seeking to modify the station's DTV allotment from channel 30 to channel 49 and to change the station's digital community of license from Johnstown to Jeannette. That petition was subsequently amended to specify a new reference site. The petition for rule making was pending at the time the former licensee of WPCW certified to replication on FCC Form 381. Based on the pending rule making, WPCW elected channel 49 in the first round of the channel election process. The Seventh Further NPRM specifies channel 49 for WPCW but lists technical parameters consistent with replication on channel 49 of the WPCW initial DTV allotment which was based on its analog facility. In the 2006 Report and Order, the Commission granted the WPCW rule making petition and, in addition to the channel change from 30 to 49, the Commission approved the requested site change for WPCW as well as an increase in ERP and other technical changes.

        13. CBS argues in its comments that the DTV Table of Allotments should reflect the revised parameters approved for WPCW in the 2006 Report and Order. Schrecongost argues that the Commission erred in granting the channel change and site change for WPCW as operation of that station on channel 49 in Jeannette would cause interference to WLLS in violation of the Community Broadcasters Protection Act of 1999 (CBPA). The CBPA gave certain low power television (LPTV) stations, known as Class A stations, some limited protection from interference by full-service stations.

        14. We have determined that operation of WPCW on channel 49 at the site and parameters approved in the 2006 Report and Order would cause interference to the TCDs of two full-power stations in excess of the 0.1 percent standard for new interference that applies during the channel election process. Specifically, operation of WPCW on channel 49 would cause 1.61 percent new interference to WTAP, Parkersburg, WV (analog channel 15, post-transition digital channel 49), and 0.7 percent new interference to WPXI, Pittsburgh, PA (analog channel 11, post-transition digital channel 48).

        15. In light of the interference caused by WPCW on channel 49, we propose to provide WPCW with an alternative channel that would resolve this interference. Specifically, we propose to allot channel 11 to WPCW with the site location specified in the 2006 Report and Order. The specific technical facilities we propose for WPCW on channel 11 at this location are reflected in Appendix G, infra. Our analysis shows that operation of WPCW on channel 11 will not cause interference to the post-transition facilities of full power stations, nor to WLLS, the Class A station.

        16. We believe that this proposal is consistent with our objectives in this proceeding. Operation of WPCW on channel 11 instead of channel 49 would reduce the interference caused to other facilities, consistent with our goal of efficient spectrum use. In addition, changing the WPCW allotment from channel 49 to channel 11 would resolve the challenge by Class A station WLLS to the decision reached in the 2006 Report and Order. Resolving this challenge avoids a potentially protracted appeal of the 2006 Report and Order and furthers our goal of finalizing DTV channels and facilities to permit stations to construct their post-transition facilities by the rapidly approaching transition deadline.

        17. WGNO and WNOL, New Orleans, LA. Tribune (licensee of station WGNO, channel 26, permittee of WGNO-DT, channel 15, with TCD on channel 26, New Orleans, LA, and station WNOL, channel 38, and permittee of WNOL-DT, channel 40, New Orleans, LA, with TCD on channel 15) filed late comments requesting a change in technical parameters for both stations. Tribune proposes to operate both WGNO and WNOL from the WDSU transmitter site and tower, 3.7 km from the WGNO/WNOL transmission site destroyed by Hurricane Katrina. Tribune proposes that WGNO and WNOL will share the antenna with WDSU (analog channel 6, pre- and post-transition digital channel 43). Tribune contends that operating their stations from this site will streamline their application process and allow Tribune to restore digital service to the New Orleans market more quickly.
        18. We have considered and studied Tribune's request, and we find that the proposed parameters do not cause impermissible interference to any station. However, we find that the proposed parameters for both stations would exceed their authorized contours, in violation of the freeze. In light of the unusual circumstances that affect these stations due to the destruction of both stations' analog and digital facilities, and the licensee's desire to relocate the transmitter to reduce the risk of damage from future hurricanes, we propose to waive the freeze and substitute the technical parameters requested in the late-filed comments. We seek comment on this proposal.
        Eighth Further Notice of Proposed Rulemaking
        Initial Regulatory Flexibility Analysis

        19. As required by the Regulatory Flexibility Act of 1980 (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (FRFA) relating to this Eighth Further Notice of Proposed Rulemaking.

        Initial Paperwork Reduction Act Analysis
        20. This Eighth Further Notice of Proposed Rulemaking has been analyzed with respect to the PRA and does not contain proposed information collection requirements. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002.
        Ex Parte Rules
        21. Permit-But-Disclose. This proceeding will be treated as a “permit-but-disclose” proceeding subject to the “permit-but-disclose” requirements under § 1.1206(b) of the Commission's rules. Ex parte presentations are permissible if disclosed in accordance with Commission rules, except during the Sunshine Agenda period when presentations, ex parte or otherwise, are generally prohibited. Persons making oral ex parte presentations are reminded that a memorandum summarizing a presentation must contain a summary of the substance of the presentation and not merely a listing of the subjects discussed. More than a one-or two-sentence description of the views and arguments presented is generally required. Additional rules pertaining to oral and written presentations are set forth in § 1.1206(b).
        Filing Requirements
        22. Comments and Replies. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, interested parties may file comments on or before October 10, 2007; reply comments are due on or before October 25, 2007 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.

        • 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 must be addressed to 445 12th Street, SW., Washington, DC 20554.
        23. Availability of Documents. Comments, reply comments, and ex parte submissions 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.
        24. Accessibility Information. To request information in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This document can also be downloaded in Word and Portable Document Format (PDF) at: http://www.fcc.gov.

        Additional Information
        25. For more information on this Seventh Report and Order and Eighth Further Notice of Proposed Rulemaking, please contact Kim Matthews, Policy Division, Media Bureau at (202) 418-2154, Gordon Godfrey, Engineering Division, Media Bureau at (202) 418-2193, or Nazifa Sawez, Engineering Division, Media Bureau at (202) 418-7059.

        Initial Regulatory Flexibility Act Analysis

        26. 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 Eighth Further Notice of Proposed Rulemaking. 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 Eighth Further NPRM provided in paragraph 163 of the item. The Commission will send a copy of the Eighth Further NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the Eighth Further NPRM and IRFA (or summaries thereof) will be published in the Federal Register.
        A. Need for and Objectives of the Proposed Rules
        27. The Eighth Further NPRM proposes modifications to the new Post-Transition Table of DTV Allotments and Appendix B as in the Seventh Report and Order (DTV Table of Allotments). Three new full power permittees and six existing full power licensees and permittees are provided with channels and parameters for digital broadcast operations after the DTV transition. Changes to the new post-transition DTV Table of Allotments affects full power commercial and noncommercial broadcast television stations as the new DTV Table of Allotments provides post-transition channels for all eligible full power stations and changes to the DTV Table of Allotments may have interference or other implications for other broadcasters in the DTV Table of Allotments.
        28. The Commission announced in the Seventh Further NPRM that, to the extent possible, it would accommodate future new permittees in the new Post-Transition Table of DTV Allotments, but that it would provide an opportunity for public comment before doing so. Three new construction permits were issued to permittees too late to be offered for comment in an earlier Public Notice, but can be accommodated in the new DTV Table of Allotments without causing impermissible interference. Six existing licensees and permittees made late-filed requests for modifications to the new DTV Table of Allotments. Although these requested changes are unopposed, appear non-controversial, and would have been looked upon favorably had they been timely-filed, we find it appropriate to provide a full opportunity for comment.
        29. We believe these proposed modifications to the new Post-Transition Table of DTV Allotments support the goals set forth for the channel election process. By these proposed modifications, the new permittees are provided with channels for DTV operations after the transition. Where adjustments bring the DTV Table of Allotments into line with the facilities or service areas of existing licensees or permittees, they recognize industry expectations and respect investments already made. These proposals also move the overall Post-Transition Table of DTV Allotments more quickly towards finality without sacrificing clarity or transparency. Finally, we believe the proposed changes reflects our efforts to promote overall spectrum efficiency and, in particular, to ensure the best possible DTV service to the public.
        B. Legal Basis
        30. The authority for the action proposed in this rulemaking is contained in sections 1, 4(i) and (j), 5(c)(1), 7, 301, 302, 303, 307, 308, 309, 316, 319, 324, 336, and 337 of the Communications Act of 1934, 47 U.S.C. 151, 154(i) and (j), 155(c)(1), 157, 301, 302, 303, 307, 308, 309, 316, 319, 324, 336, and 337.
        C. Description and Estimate of the Number of Small Entities To Which the Proposed Rules Will Apply

        31. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small government 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. The proposed rules in this Eighth Further NPRM, if adopted, will primarily affect television stations. A description of such small entities, as well as an estimate of the number of such small entities, is provided below.
        32. Television Broadcasting. The proposed rules and policies in this Eighth Further NPRM apply to television broadcast licensees and potential licensees of television service. The SBA defines a television broadcast station as a small business if such station has no more than $13.5 million in annual receipts. Business concerns included in this industry are those “primarily engaged in broadcasting images together with sound.” The Commission has estimated the number of licensed commercial television stations to be 1,376. According to Commission staff review of the BIA Financial Network, MAPro Television Database (BIA) on March 30, 2007, about 986 of an estimated 1,374 commercial television stations (or about 72 percent) have revenues of $13.5 million or less and thus qualify as small entities under the SBA definition. The Commission has estimated the number of licensed NCE television stations to be 380. We note, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. The Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.
        33. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. Also as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities and our estimates of small businesses to which they apply may be over-inclusive to this extent.
        34. Class A TV, LPTV, and TV translator stations. The rules and policies proposed in this Eighth Further NPRM do not directly affect low power television stations, as the DTV Table of Allotments to which changes are being proposed will finalize post-transition digital channels only for full power television stations. Nonetheless, as discussed in section E, infra, low power television stations will also eventually transition from analog to digital technology and may be indirectly affected by the channel allotment decisions herein. The broadcast stations indirectly affected include licensees of Class A TV stations, low power television (LPTV) stations, and TV translator stations, as well as to potential licensees in these television services. The same SBA definition that applies to television broadcast licensees would apply to these stations. The SBA defines a television broadcast station as a small business if such station has no more than $13.5 million in annual receipts. Currently, there are approximately 567 licensed Class A stations, 2,227 licensed LPTV stations, and 4,518 licensed TV translators. Given the nature of these services, we will presume that all of these licensees qualify as small entities under the SBA definition. We note, however, that under the SBA's definition, revenue of affiliates that are not LPTV stations should be aggregated with the LPTV station revenues in determining whether a concern is small. Our estimate may thus overstate the number of small entities since the revenue figure on which it is based does not include or aggregate revenues from non-LPTV affiliated companies. We do not have data on revenues of TV translator or TV booster stations, but virtually all of these entities are also likely to have revenues of less than $13.5 million and thus may be categorized as small, except to the extent that revenues of affiliated non-translator or booster entities should be considered.
        D. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements
        35. The proposals set forth in this Eighth Further NPRM would involve no changes to reporting, recordkeeping, or other compliance requirements beyond what is already required under the current regulations.
        E. Steps Taken To Minimize Significant Impact on Small Entities, and Significant Alternatives Considered
        36. 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.

        37. The proposed changes will allow the new Post-Transition Table of DTV Allotments to provide all eligible broadcast television stations—large and small alike—with channels for post-transition DTV operations. No distinction was made between large and small licensees and permittees when determining which proposals to include in the Eighth Further NPRM. Small broadcasters, just like large ones, benefited from participating in the channel election process, and had an equal opportunity to review the proposed DTV Table of Allotments and request modifications. The TCDs and parameters proposed are based almost entirely on elections by licensees. All stations affected by the proposals in the Eighth Further NPRM will have the opportunity to comment, and the Commission will consider all comments, including those proposing alternative allotments for specific stations. No alternative to existing proposals for specific modifications to the DTV Table of Allotments for purposes of DTV allotments are proposed herein. In general, the transition procedures utilized in selecting final DTV allotments have been sufficiently transparent and flexible and eligible applicants for post-transition DTV allotments have been provided with the opportunity to make elections and to suggest alternative allotments.
        38. The Eighth Further NPRM invites comment from broadcasters, including small broadcasters, on the proposed modifications to the new Post-Transition Table of DTV Allotments. In addition, we invite comment on other ways in which we could consider the particular needs and interests of small businesses in finalizing the Post-Transition Table of DTV Allotments.
        39. The new DTV Table of Allotments for which the Eighth Further NPRM proposes modifications does not provide for channels for low power television stations. The Commission will address the digital transition for low power television (LPTV) stations in a separate proceeding. The statutory transition deadline established by Congress in 2006—February 17, 2009—applies only to full-power stations. One of the Commission's goals in this proceeding is to permit full power stations to finalize their post-transition facilities by this rapidly approaching deadline. The Commission previously determined that it has discretion under 47 U.S.C. 336(f)(4) to set the date by which analog operations of stations in the low power and translator service must cease. The Commission has stated that the intent is to ensure that low power and translator stations not be required to prematurely convert to digital operation in a manner that could disrupt their analog service or, more importantly, that might cause them to cease operation. The Commission decided not to establish a fixed termination date for the low power digital television transition until it resolved the issues concerning the transition of full-power television stations. The Commission has recognized that low power television stations are a valuable component of the nation's television system and has stated its intention to facilitate, wherever possible, the digital transition of these stations.
        F. Federal Rules Which Duplicate, Overlap, or Conflict With the Commission's Proposals
        None.
        Ordering Clauses
        40. It is ordered that, pursuant to the authority contained in sections 1, 4(i) and (j), 7, 301, 302, 303, 307, 308, 309, 316, 319, 324, 336, and 337 of the Communications Act of 1934, 47 U.S.C 151, 154(i) and (j), 157, 301, 302, 303, 307, 308, 309, 316, 319, 324, 336, and 337, this Seventh Report and Order and Eighth Further Notice of Proposed Rule Making is adopted.
        41. It is further ordered that pursuant to the authority contained in sections 1, 2, 4(i), 303, 303a, 303b, and 307 of the Communications Act of 1934, 47 U.S.C 151, 152, 154(i), 303, 303a, 303b, and 307, the Commission's rules are hereby amended as set forth in Appendix A.
        42. It is further ordered that the rules as revised in Appendix A of the Seventh Report and Order and Eighth Further Notice of Proposed Rule Making shall be effective October 10, 2007.
        43. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Seventh Report and Order and Eighth Further Notice of Proposed Rule Making, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

          It is further ordered that the Commission shall send a copy of this Seventh Report and Order and Eighth Further Notice of Proposed Rule Making in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

          List of Subjects in 47 CFR Part 73
          Television.

          Federal Communications Commission.
          Marlene H. Dortch,
          Secretary.

        Proposed Rule Changes
        For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 to read as follows:

          PART 73—RADIO BROADCAST SERVICES
          1. The authority citation for part 73 continues to read as follows:

            Authority:
            47 U.S.C. 154, 303, 334, 336.

          2. Section 73.622 is amended by adding paragraph (i) to read as follows:

            § 73.622
            Digital television table of allotments.

            (i) Post-Transition Table of DTV Allotments.

                Community
                Channel No.

                ALABAMA

                Tuscaloosa
                6

                COLORADO

                Greeley
                49

                Pueblo
                48

                IDAHO

                Nampa
                13

                ILLINOIS

                Galesburg
                8

                INDIANA

                Evansville
                7

                NEVADA

                Reno
                8

                PENNSYLVANIA

                Jeannette
                11

              Note:
              The following Appendix will not appear in the Code of Federal Regulations.

              Appendix G—Proposed DTV Table of Allotments Information

                  Facility ID
                  State
                  City
                  NTSC
                  Chan
                  DTV
                  Chan
                  ERP(kW)

                  HAAT(m)

                  AntennaID

                  Latitude(DDMMSS)

                  Longitude(DDDMMSS)

                  Area(sq km)

                  Population(thousand)

                  Percentinterference
                    received

                  77496
                  AL
                  Tuscaloosa
                  23
                  6
                  1
                  266
                  80096
                  330315
                  873257
                  18093
                  595
                  0

                  166510
                  CO
                  Greeley

                  49
                  1000
                  382

                  402448
                  1041940
                  32251
                  2400
                  0

                  166331
                  CO
                  Pueblo
                  48
                  48
                  50
                  695
                  80244
                  384442
                  1045137
                  20898
                  906
                  0.8

                  51567
                  DC
                  Washington
                  20
                  35
                  500
                  227

                  385722
                  770459
                  20241
                  6949
                  0.2

                  28230
                  ID
                  Nampa
                  12
                  13
                  17
                  829

                  434518
                  1160552
                  41141
                  555
                  0

                  81946
                  IL
                  Galesburg

                  8
                  15
                  333
                  80193
                  411844
                  902245
                  24719
                  795
                  0.7

                  24215
                  IN
                  Evansville
                  25
                  7
                  3.2
                  301
                  80191
                  375157
                  873404
                  21506
                  699
                  0.1

                  58552
                  KS
                  Pittsburg
                  7
                  7
                  15.5
                  332
                  80204
                  371315
                  944225
                  29053
                  543
                  0.7

                  54280
                  LA
                  New Orleans
                  38
                  15
                  775
                  286
                  80216
                  295659
                  895728
                  24543
                  1724
                  0

                  72119
                  LA
                  New Orleans
                  26
                  26
                  1000
                  286
                  80217
                  295659
                  895728
                  24703
                  1734
                  0

                  63331
                  NV
                  Reno
                  8
                  8
                  15.6
                  893
                  80185
                  391849
                  1195300
                  39660
                  667
                  2.6

                  69880
                  PA
                  Jeannette
                  19
                  11
                  6.5
                  303
                  80099
                  402334
                  794654
                  21639
                  2960
                  0.1

                  51568
                  PA
                  Philadelphia
                  29
                  42
                  1000
                  281
                  43286
                  400226
                  751419
                  20599
                  7425
                  6.9

       [FR Doc. E7-17643 Filed 9-7-07; 8:45 am]
      BILLING CODE 6712-01-P


        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Part 571
        [Docket No. NHTSA-2005-22093]
        RIN 2127-AJ31
        Federal Motor Vehicle Safety Standards; Theft Protection

          AGENCY:
          National Highway Traffic Safety Administration (NHTSA), Department of Transportation.

          ACTION:
          Notice of proposed rulemaking (NPRM).

          SUMMARY:

          Our safety standard on theft protection specifies vehicle performance requirements intended to reduce the incidence of crashes resulting from theft and accidental rollaway of motor vehicles. As a result of technological advances in the area of theft protection, the terminology used in the regulatory text of the Standard has become outdated and incompatible with key-locking systems that employ electronic codes to lock and unlock the vehicle, and to enable engine activation. This document proposes to amend and reorganize the regulatory text of the Standard so that it better correlates to modern theft protection technology and reflects the agency's interpretation of the existing requirements. The proposed requirements would not impose any new substantive requirements on vehicle manufacturers.

          DATES:
          You should submit your comments early enough to ensure that Docket Management receives them not later than October 17, 2005.

          ADDRESSES:
          You may submit comments identified by the DOT Docket Number cited in the heading of this document by any of the following methods:
          • Web Site: http://dms.dot.gov. Follow the instructions for submitting comments on the DOT electronic docket site.
          • Fax: 1-202-493-2251.
          • Mail: Docket Management Facility; U.S. Department of Transportation, 400 7th Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001.
          • Hand Delivery: Room PL-401, 400 7th Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
          • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.

            Instructions: All submissions must include the agency name and docket number. Note that all comments received will be posted without change to http://dms.dot.gov including any personal information provided. Please see the Privacy Act heading under Regulatory Notices.

            Docket: For access to the docket to read background documents or comments received, go to http://dms.dot.gov at any time or to Room PL-401 on the plaza level of the Nassif Building, 400 7th Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

          FOR FURTHER INFORMATION CONTACT:

          For technical issues: Ms. Gayle Dalrymple, Office of Crash Avoidance Standards, NVS-123, NHTSA, 400 7th Street, SW., Washington, DC 20590. Telephone: (202) 366-5559. E-mail: Gayle.Dalrymple@nhtsa.dot.gov.

          For legal issues: Mr. George Feygin, Office of the Chief Counsel, NCC-112, NHTSA, 400 7th Street, SW., Washington, DC 20590. Telephone: (202) 366-5834. E-mail: George.Feygin@nhtsa.dot.gov.

        SUPPLEMENTARY INFORMATION:

          Table of Contents
          I. Background
          II. Recent Letters of Interpretation Regarding FMVSS No. 114
          III. VW Petition for Rulemaking
          IV. Proposed Changes to the Regulatory Text
          V. Effective Date of the Proposed Changes
          VI. Request for Comments
          VII. Rulemaking Analyses and Notices
          A. Executive Order 12866 and DOT Regulatory Policies and Procedures
          B. Executive Order 13132 (Federalism)
          C. Executive Order 13045
          D. Civil Justice Reform
          E. Regulatory Flexibility Act
          F. Paperwork Reduction Act
          G. National Technology Transfer And Advancement Act
          H. Unfunded Mandates Reform Act
          I. Regulation Identifier Number (RIN)
          J. Privacy Act
          K. Plain Language
          K. National Environmental Policy Act
          VIII. Regulatory Text

        I. Background
        FMVSS No. 114, Theft protection, specifies vehicle performance requirements intended to reduce the incidence of crashes resulting from theft and accidental rollaway of motor vehicles. The standard applies to all passenger cars, and to trucks and multipurpose passenger vehicles with a GVWR of 4536 kilograms (10,000 pounds) or less. The standard first became effective on January 1, 1970.1
           The purpose of the standard was to prevent crashes caused by unauthorized use of unattended motor vehicles. Thus, the standard sought to ensure that the vehicle could not be easily operated without the key, and that the vehicle operator would not forget to remove the key from the ignition system upon exiting the vehicle.

            1 See 33 FR 6471 (April 24, 1968).

        In response to the problem of accidental rollaway crashes resulting from children inadvertently moving the automatic transmission lever to a neutral position when a stationary vehicle is parked on a slope, NHTSA later amended FMVSS No. 114 to require that the automatic transmission lever be locked in the “park” position before the key can be removed from the ignition system.2
           Subsequently, NHTSA amended these new requirements to permit an override device that would enable the vehicle operator to remove the key without the transmission being locked in “park,” and to move the transmission lever without using the key, under certain circumstances. The purpose of these override provisions was to address certain situations when it may be necessary to remove key without shifting the transmission lever because the vehicle has become disabled.3

            2 See 55 FR 21868, (May 30, 1990).

            3 See 56 FR 12464 (March 26, 1991).

        While FMVSS No. 114 evolved to address not only theft protection, but also accidental rollaway prevention, the terminology used in the regulatory text has remained unchanged since its introduction more than 35 years ago. However, theft protection technology has advanced considerably during that time. As a result, certain provisions of the Standard have become increasingly ambiguous when applied to modern theft protection technology not contemplated by the Standard when it first went into effect.

        For example, a number of vehicles now feature electronic systems. Typically, this involves a card or a similar device that is carried in an occupant's pocket or purse. The card carries an electronic code that acts as the key when it is transmitted to the vehicle's onboard locking system. The vehicle has a sensor that automatically unlocks the door and allows the vehicle operator to activate the engine, when it receives the code. The code-carrying device (i.e., card or otherwise) never has to leave the vehicle operator's pocket or purse and is not inserted into the ignition module.
        In response to manufacturers' requests, NHTSA issued a series of interpretation letters explaining how the Standard applied to various key-locking systems that did not utilize conventional keys, but instead relied on electronic codes to lock and unlock the vehicle, and to enable engine activation.

        In 2002, NHTSA received a petition for rulemaking from Volkswagen of America (VW) asking the agency to amend a certain provision of the standard related to rollaway prevention, that will be discussed below. The agency decided to grant the petitioner's request. However, instead of addressing only the limited issues raised by VW, this document takes a broader approach and proposes to amend and reorganize the regulatory text of FMVSS No. 114 so that it better correlates to modern antitheft technology and reflects the agency's interpretation of the existing requirements.

        II. Recent Letters of Interpretation Regarding FMVSS No. 114
        As noted above, the agency received several requests for legal interpretation of the requirements of FMVSS No. 114, as they apply to key-locking systems using various remote access devices. In response, the agency has stated that the electronic code transmitted from a remote device to the vehicle can be considered a “key” for the purposes of FMVSS No. 114.4
           We have also elaborated on how other provisions of the standard applies to electronic codes. For example, the agency stated that the narrow provisions related to electrical failure do not apply to electronically coded cards or other means used to enter an electronic key code into the locking system because those provisions were specifically crafted in the context of traditional keys.5
           We also explained that systems using an electronic code instead of conventional key would satisfy the rollaway prevention provisions if the code remained in the vehicle until the transmission gear is locked in the “park” position.

            4 See
            http://www.nhtsa.dot.gov/cars/rules/interps/files/GF001689.html and http://www.nhtsa.dot.gov/cars/rules/interps/files/7044.html.

            5 See
            http://www.nhtsa.dot.gov/cars/rules/interps/files/GF001689.html.

        We have followed our interpretation of the definition of “key” in addressing other issues related to FMVSS No. 114. However, instead of relying on interpretations, and possibly facing additional questions in the future, the agency believes that it is appropriate to amend the regulatory text of FMVSS No. 114 so that it better correlates to modern antitheft technology and better reflects the agency's interpretation of the existing requirements. The specifics of our proposal are discussed in Section IV below.
        III. VW Petition for Rulemaking
        As previously discussed, in order to prevent accidental rollaways, the Standard currently requires that, for vehicles with automatic transmission, the transmission lever must be locked in “park” before the vehicle operator could remove the key.6
           However, the Standard also allows an optional “override device” which permits removal of the key without the automatic transmission being locked in “park.” The standard currently specifies that this override device “* * * must be covered by a non-transparent surface which, when installed, prevents sight of and activation of the device * * *” and that “* * * The covering surface shall be removable only by use of a screwdriver or other tool.”

            6 See S4.2.2(a) of FMVSS No. 114.

        On October 29, 2002, NHTSA received a petition from VW asking the agency to amend S4.2.2(a) by removing provisions related to the override device covering. VW argued that these provisions are unnecessarily design-restrictive. VW indicated that there are other ways to ensure that the override device is not engaged inadvertently. Specifically, VW suggested that the agency allow an override device that requires using a tool to activate the override device while simultaneously removing the key.
        The agency agrees that the regulatory text related to the override device cover is unnecessarily design-restrictive. Accordingly, this document grants the VW petition for rulemaking and proposes to amend the relevant portions of the regulatory text.
        IV. Proposed Changes to the Regulatory Text
        First, the agency is proposing to reorganize the regulatory text of the Standard such that the requirements related to theft protection are separated from the requirements intended to prevent accidental rollaway. Second, whenever possible, we are proposing to simplify the language used in the Standard to make it more clear. Finally, this document proposes to amend requirements and definitions that are unnecessarily design-restrictive.
        While we discuss certain specific aspects of our proposal below, we encourage readers to carefully examine each paragraph of the proposed regulatory text because the entire text is revised.
        1. We are proposing to revise the paragraphs explaining the Standard's scope and purpose to better reflect its goal of reducing the incidence of crashes resulting from theft and also accidental rollaway of motor vehicles. This change has no substantive significance because the Standard already addresses both safety concerns, and should not be viewed as broadening the scope of the current requirements.
        2. We are proposing to revise the definition of “key” such that it makes it appropriate not only for conventional keys but also electronic codes and other potential means of unlocking and operating the vehicle. We believe that the new definition is broad enough to include not only electronic codes but also other technologies, including, for example, fingerprint recognition.
        3. The current standard uses the term “transmission shift lever” in several instances to refer to the mechanism by which the driver changes the transmission from one gear to another. The agency believes that this term is unnecessarily design-specific. We have therefore substituted the term “gear selection control” for the term “transmission shift lever.”
        4. As previously discussed, S4.2.1 of the current Standard specifies that a key cannot be removed from the ignition until the transmission shift lever is locked in “park.” However, the Standard provides for an optional override device designed to allow (a) removal of the key when the transmission is not in the “park,” and (b) moving the transmission out of “park” when the key is not in the ignition. The Standard requires that the means for activating this device must be covered by a non-transparent surface which, when installed, prevents sight of and activation of the device. This covering surface can only be removable by use of a tool.7

            7 The purpose of this requirement was to ensure that children could not easily gain access to the override device (see 56 FR 12464 at 12466).

        In response to the VW petition described above, we are proposing to amend the requirement that the override device be covered by a non-transparent surface. Specifically, as an alternative to the current requirement, we are proposing to permit an override device that requires using a tool to activate the override device while simultaneously removing the key. We believe that requiring the use of a tool in order to activate this type of override device would involve sufficient complexity to prevent possible inadvertent activation by a child.
        5. The current Standard allows only override systems that prevent steering before the key can be released, or the transmission lever can be shifted. The agency previously indicated that this requirement ensured that the theft protection aspects of the standard remained intact even in certain situations where the vehicle was disabled.8
           After further evaluating this aspect of our requirements, we tentatively conclude that an override device that would prevent forward self-mobility (such as an immobilizer) instead of steering would be just as effective. As explained in our September 24, 2004 interpretation letter to a party who requested confidentiality:

            8 See id. at 12467.

          We note that in promulgating FMVSS No. 114, the agency expressed concern about car thieves who could bypass the ignition lock. In response to this concern, the agency decided to require a device, which would prevent either self-mobility or steering even if the ignition lock were bypassed (see 33 FR 4471, April 27, 1968).

          The engine control module immobilizer described in your letter satisfies the requirements of S4.2(b) because it locks out the engine control module if an attempt is made to start the vehicle without the correct key or to bypass the electronic ignition system. When the engine control module is locked, the vehicle is not capable of forward self-mobility because it is incapable of moving forward under its own power.9

              9 http://www.nhtsa.dot.gov/cars/rules/interps/files/GF005229-2.html.

        Further, as explained in our May 27, 2003 interpretation letter to Jaguar, preventing steering after a moving vehicle has experienced a complete loss of electrical power would not be appropriate before a vehicle could be safely stopped.10
           Therefore, we are proposing to amend this aspect of the override provisions to allow manufacturers greater flexibility in designing their override devices and to allow manufacturers the choice to use electronic theft prevention devices, such as immobilizers, instead of using steering locks if they desire.

            10 http://www.nhtsa.dot.gov/cars/rules/interps/files/GF001689.html.

        V. Effective Date of the Proposed Changes
        As previously discussed, with the exception of the override provisions, which would be made less restrictive, the proposed amendments would not make substantive changes to the existing standard. Instead, we are proposing to amend and reorganize the regulatory text of FMVSS No. 114 so that it better correlates to modern theft protection technology and reflects the agency's interpretation of the existing requirements. We believe vehicle manufacturers would not have to make any changes to their vehicles if this proposal was made final. Accordingly, we propose to make this document effective 60 days following the publication of the final rule.
        VI. Request for Comments
        How Do I Prepare and Submit Comments?
        Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments. Your comments must not be more than 15 pages long.11

           We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments. Please submit two copies of your comments, including the attachments, to Docket Management at the address given above under ADDRESSES. Comments may also be submitted to the docket electronically by logging onto the Docket Management System Web site at http://dms.dot.gov. Click on “Help & Information” or “Help/Info” to obtain instructions for filing the document electronically. If you are submitting comments electronically as a PDF (Adobe) file, we ask that the documents submitted be scanned using Optical Character Recognition (OCR) process, thus allowing the agency to search and copy certain portions of your submissions.12

            11 See 49 CFR 553.21.

            12 Optical character recognition (OCR) is the process of converting an image of text, such as a scanned paper document or electronic fax file, into computer-editable text.

        Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at http://www.whitehouse.gov/omb/fedreg/reproducible.html. DOT's guidelines may be accessed at http://dmses.dot.gov/submit/DataQualityGuidelines.pdf.

        How Can I Be Sure That My Comments Were Received?
        If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
        How Do I Submit Confidential Business Information?

        If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT. In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under ADDRESSES. When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation.13

            13 See 49 CFR part 512.

        Will the Agency Consider Late Comments?

        We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under DATES. To the extent possible, we will also consider comments that Docket Management receives after that date. If Docket Management receives a comment too late for us to consider in developing a final rule (assuming that one is issued), we will consider that comment as an informal suggestion for future rulemaking action.
        How Can I Read the Comments Submitted by Other People?

        You may read the materials placed in the docket for this document (e.g., the comments submitted in response to this document by other interested persons) by going to the street address given above under ADDRESSES. The hours of the Docket Management System (DMS) are indicated above in the same location.
        You may also read the materials on the Internet. To do so, take the following steps:

        (1) Go to the Web page of the Department of Transportation DMS (http://dms.dot.gov/search/searchFormSimple.cfm).
        (2) On that page type in the five-digit docket number cited in the heading of this document. After typing the docket number, click on “search.”
        (3) On the next page (“Docket Search Results”), which contains docket summary information for the materials in the docket you selected, scroll down and click on the desired materials. You may download the materials.
        VII. Rulemaking Analyses and Notices
        A. Executive Order 12866 and DOT Regulatory Policies and Procedures
        This rulemaking document was not reviewed under Executive Order 12866, “Regulatory Planning and Review.” The agency has considered the impact of this proposal under the Department of Transportation's regulatory policies and procedures, and has determined that it is not significant.

        This document proposes to amend and reorganize the regulatory text of 49 CFR 571.114 so that it better correlates to modern theft protection technology and better reflects the agency's interpretation of the existing requirements. Additionally, this document proposes to make certain provisions of 49 CFR 571.114 less restrictive. If made final, the vehicle manufacturers would not have to make any changes to their vehicles as a result of this rule. The impacts of this proposed rule are so minor that we determined that a separate regulatory evaluation is not needed.
        B. Executive Order 13132 (Federalism)
        The agency has analyzed this proposal in accordance with the principles and criteria set forth in Executive Order 13132. This proposal would not have a substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.
        C. Executive Order 13045
        Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) is determined to be “economically significant” as defined under E.O. 12866, and (2) concerns an environmental, health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by us.
        This proposal is not subject to the Executive Order 13045 because it is not economically significant as defined in E.O. 12866 and does not involve decisions based on environmental, safety or health risks having a disproportionate impact on children.
        D. Civil Justice Reform
        This final rule does not have any retroactive effect. Under 49 U.S.C. 21403, whenever a Federal motor vehicle safety standard is in effect, a State may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 21461 sets forth a procedure for judicial review of final rules establishing, amending or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.
        E. Regulatory Flexibility Act
        The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires agencies to evaluate the potential effects of their proposed rules on small businesses, small organizations and small governmental jurisdictions. I have considered the possible effects of this rulemaking action under the Regulatory Flexibility Act and certify that it would not have a significant economic impact on a substantial number of small entities.
        This document proposes to amend and reorganize the regulatory text of 49 CFR 571.114 so that it better correlates to modern theft protection technology and better reflects the agency's interpretation of the existing requirements. If made final, vehicle manufacturers or any other small businesses would not have to make any changes to their products as a result of this rule.
        F. Paperwork Reduction Act
        Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This proposal does not include any new information collection requirements.
        G. National Technology Transfer and Advancement Act

        Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272) directs us to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.
        There are no available voluntary consensus standards that are equivalent to FMVSS No. 114.
        H. Unfunded Mandates Reform Act
        Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year ($120.7 million as adjusted annually for inflation with base year of 1995).
        The proposed requirements would not result in costs of $120.7 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector.
        I. Regulation Identifier Number (RIN)
        The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
        J. Privacy Act

        Please note that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78), or you may visit http://dms.dot.gov.

        K. Plain Language
        Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
        • Have we organized the material to suit the public's needs?
        • Are the requirements in the rule clearly stated?
        • Does the rule contain technical language or jargon that isn't clear?
        • Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
        • Would more (but shorter) sections be better?
        • Could we improve clarity by adding tables, lists, or diagrams?
        • What else could we do to make the rule easier to understand?
        If you have any responses to these questions, please include them in your comments on this proposal.
        L. National Environmental Policy Act

        NHTSA has analyzed this proposal for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action would not have any significant impact on the quality of the human environment.
        VI. Regulatory Text

          List of Subjects in 49 CFR Parts 571
          Motor vehicle safety, Reporting and recordkeeping requirements, Tires.

        In consideration of the foregoing, part 571 would be amended as follows:

          PART 571—[AMENDED]
          1. The authority citation for part 571 would continue to read as follows:

            Authority:
            49 U.S.C. 322, 2011, 30115, 30166 and 30177; delegation of authority at 49 CFR 1.50.

          2. Section 571.114 would be revised to read as follows:

            § 571.114
            Standard No. 114; Theft protection and rollaway prevention.
            S1. Scope. This standard specifies vehicle performance requirements intended to reduce the incidence of crashes resulting from theft and accidental rollaway of motor vehicles.
            S2. Purpose. The purpose of this standard is to decrease the likelihood that a vehicle is stolen, or accidentally set in motion.
            S3. Application. This standard applies to all passenger cars, and to trucks and multipurpose passenger vehicles with a GVWR of 4,536 kilograms (10,000 pounds) or less. However, it does not apply to walk-in van-type vehicles.
            S4. Definitions

              Combination means a variation of the key that permits the starting system of a particular vehicle to be operated.

              Key means a physical device or an electronic code which, when inserted into the starting system (by physical or electronic means), enables the vehicle operator to activate the engine or motor.

              Open-body type vehicle means a vehicle having no occupant compartment doors or vehicle having readily detachable occupant compartment doors.

              Starting system means the vehicle system used in conjunction with the key to activate the engine or motor.

              Vehicle type, as used in S5.1.2, refers to passenger car, truck, or multipurpose passenger vehicle, as those terms are defined in 49 CFR 571.3.
            S5. Requirements. Each vehicle subject to this standard must meet the requirements of S5.1 and S5.2. Open-body type vehicles are not required to comply with S5.1.3.
            S5.1 Theft Protection
            S5.1.1 Each vehicle must have a starting system which, whenever the key is removed from the starting system prevents:
            (a) The normal activation of the vehicle's engine or motor; and
            (b) Either steering, or forward self-mobility, of the vehicle, or both.
            S5.1.2 For each vehicle type manufactured by a manufacturer, the manufacturer must provide at least 1,000 unique key combinations, or a number equal to the total number of the vehicles of that type manufactured by the manufacturer, whichever is less. The same combinations may be used for more than one vehicle type.
            S5.1.3. Except as specified below, an audible warning to the vehicle operator must be activated whenever the key is in the starting system and the door located closest to the driver's designated seating position is opened. An audible warning to the vehicle operator need not activate:
            (a) After the key has been inserted into the starting system, and before the driver takes further action; or
            (b) If the key is in the starting system in a manner or position that allows the engine or motor to be started or to continue operating; or
            (c) For mechanical keys and starting systems, after the key has been withdrawn to a position from which it may not be turned.
            S5.1.4. If a vehicle is equipped with a transmission with a “park” position, the means for deactivating the vehicle's engine or motor must not activate any device installed pursuant to S5.1.1(b), unless the transmission is locked in the “park” position.
            S5.2. Rollaway Prevention in Vehicles Equipped With Transmissions With a “Park” Position
            S5.2.1 Except as specified in S5.2.3, the starting system required by S5.1 must prevent key removal when tested according to the procedures in S6, unless the transmission or gear selection control is locked in “park” or becomes locked in “park” as a direct result of key removal.
            S5.2.2 Except as specified in S5.2.4, the vehicle must be designed such that the transmission or gear selection control cannot move from the “park” position, unless the key is in the starting system.
            S5.2.3 Key Removal Override Option
            At the option of the manufacturer, the key may be removed from the starting system without the transmission or gear selection control in the “park” position under one of the following conditions:
            (a) In the event of electrical failure, including battery discharge, the key may be automatically removed from the starting system without the transmission or gear selection control locked in the “park” position; or
            (b) Provided that steering or self-mobility is prevented, the vehicle may have a device by which the user can remove the key from the starting system without the transmission or gear selection control locked in “park.” This device must require:
            (i) The use of a tool, and
            (ii) Simultaneous activation of the device and removal of the key; or
            (c) Provided that steering or self-mobility is prevented, the vehicle may have a device by which the user can remove the key from the starting system without the transmission or gear selection control locked in “park.” This device must be covered by an opaque surface which, when installed:
            (i) Prevents sight of and use of the device, and
            (ii) Can be removed only by using a screwdriver or other tool.
            S5.2.4 Gear Selection Control Override Option
            The vehicle may have a device by which the user can move the gear selection control from “park” after the key has been removed from the starting system. This device must be operable by one of the three options below:
            (a) By use of the key; or
            (b) By a means other than the key, provided steering or forward self-mobility is prevented when the key is removed from the starting system. Such a means must require:
            (i) The use of a tool, and
            (ii) Simultaneous activation of this means and movement of the gear selection control from “park;” or
            (c) By a means other than the key, provided steering or forward self-mobility is prevented when the key is removed from the starting system. This device must be covered by an opaque surface which, when installed:
            (i) Prevents sight of and use of the device, and
            (ii) Can be removed only by using a screwdriver or other tool.
            S5.2.5 When tested in accordance with S6.2.2, each vehicle must not move more than 150 mm on a 10 percent grade when the gear selection control is locked in “park.”
            S6. Compliance Test Procedure for Vehicles With Transmissions With a “Park” Position
            S6.1 Test Conditions
            S6.1.1 The vehicle shall be tested at curb weight plus 91 kg (including the driver).

            S6.1.2 Except where specified otherwise, the test surface shall be level.

            S6.2 Test Procedure
            S6.2.1
            (a) Activate the starting system using the key.
            (b) Move the gear selection control to any gear selection position or any other position where it will remain without assistance, including a position between any detent positions, except for the “park” position.
            (c) Attempt to remove the key in each gear selection position.
            S6.2.2
            (a) Drive the vehicle forward up a 10 percent grade and stop it with the service brakes.
            (b) Apply the parking brake (if present).
            (c) Move the gear selection control to “park.”
            (d) Note the vehicle position.
            (e) Release the parking brake. Release the service brakes.
            (f) Remove the key.
            (g) Verify that the gear selection control or transmission is locked in “park.”
            (h) Verify that the vehicle, at rest, has moved no more than 150 mm from the position noted prior to release of the brakes.
            S6.2.3
            (a) Drive the vehicle forward down a 10 percent grade and stop it with the service brakes.
            (b) Apply the parking brake (if present).
            (c) Move the gear selection control to “park.”
            (d) Note the vehicle position.
            (e) Release the parking brake. Release the service brakes.
            (f) Remove the key.
            (g) Verify that the gear selection control or transmission is locked in “park.”
            (h) Verify that the vehicle, at rest, has moved no more than 150 mm from the position noted prior to release of the brakes.

            Issued: August 5, 2005.
            Stephen R. Kratzke,
            Associate Administrator for Rulemaking.

      [FR Doc. 05-16226 Filed 8-16-05; 8:45 am]
      BILLING CODE 4910-59-P