        DEPARTMENT OF TRANSPORTATION
        Pipeline and Hazardous Materials Safety Administration
        49 CFR Parts 192
        [Docket No. PHMSA-2003-15852]
        RIN 2137-AE17
        Pipeline Safety: Applicability of Public Awareness Regulations to Certain Gas Distribution Operators

          AGENCY:
          Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          PHMSA proposes to relax regulatory requirements governing public awareness programs conducted by operators of master meter systems and certain operators of petroleum gas systems. These operators typically manage property and incidentally provide gas service to customers located on the property. The proposed change provides a less burdensome means for these operators to satisfy public awareness needs.

          DATES:
          Anyone interested in filing written comments on the rule proposed in this document must do so by November 28, 2006. PHMSA will consider late filed comments so far as practicable.

          ADDRESSES:
          Comments should reference Docket No. PHMSA-2003-15852 and may be submitted in the following ways:
          • DOT Web site: http://dms.dot.gov. To submit comments on the DOT electronic docket site, click “Comment/Submissions,” click “Continue,” fill in the requested information, click “Continue,” enter your comment, then click “Submit.”
          • Fax: 1-202-493-2251.
          • Mail: Docket Management System: U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001.
          • Hand Delivery: DOT 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.
          • E-Gov Web Site: http://www.Regulations.gov. This site allows the public to enter comments on any Federal Register notice issued by any agency.

            Instructions: You should identify the docket number, PHMSA-2003-15852, at the beginning of your comments. If you submit your comments by mail, you should submit two copies. If you wish to receive confirmation that PHMSA received your comments, you should include a self-addressed stamped postcard. Internet users may submit comments at http://www.regulations.gov, and may access all comments received by DOT at http://dms.dot.gov by performing a simple search for the docket number.

          Note:
          All comments will be posted without changes or edits to http://dms.dot.gov including any personal information provided. Please see the Privacy Act heading in the Regulatory Analyses and Notices section of the SUPPLEMENTARY INFORMATION.

          FOR FURTHER INFORMATION CONTACT:

          For information about this rulemaking contact Barbara Betsock by phone at (202) 366-4361, or by e-mail at barbara.betsock@dot.gov. For information about public awareness programs, contact Blaine Keener by phone at (202) 366-0970 or e-mail at blaine.keener@dot.gov.

        SUPPLEMENTARY INFORMATION:
        Background
        PHMSA published a final rule on public awareness programs on May 19, 2005 (70 FR 28833). The rule requires each pipeline operator to develop a written public awareness program following American Petroleum Institute Recommended Practice 1162 (API RP 1162) and to carry out that program on a continual basis. A public awareness program includes outreach to populations near the pipelines on safety and environmental issues involving pipelines and to emergency responders on identifying and responding to pipeline emergencies. The American Public Gas Association (APGA) filed a petition for reconsideration of the public awareness regulations on June 10, 2005, seeking to change the regulatory requirements for master meter systems. In a written response to the APGA and through public workshops and an advisory bulletin (71 FR 34998), PHMSA has indicated its intention to relieve operators of master meter and petroleum gas distribution systems from some of these requirements.
        Applicability to Operators of Master Meter Systems
        A master meter system is defined in 49 CFR 191.3. An operator of a master meter system receives gas through a meter as the customer of a local distribution company and then redistributes the gas on its own property. The operator of a master meter system distributes gas as an incidental part of a primary business. For example, a typical master meter operator manages a trailer park or apartment complex and may charge residents for the gas service through the rent. The master meter system is typically located on the property of the master meter operator. Data received from forty-seven state pipeline safety agencies in 2005 shows over 6,500 master meter systems in operation. Because an operator of a master meter system does not file annual reports with PHMSA, we have no quantified data about the size of the systems, either by mileage or by number of customers.
        The customers of a master meter operator live near pipelines operated by the gas distribution company supplying the master meter system. Because of this proximity, APGA notes, in its petition for reconsideration, the requirement for the gas distribution company to conduct outreach to these residents and to the local emergency responders. Messages from the master meter operator might differ from those of the gas distribution system serving the master meter. APGA, which represents distribution companies owned by municipalities, expresses concern these different messages might confuse both the public and emergency responders. We agree with this concern. However, we do not agree with APGA's suggested alternative approaches, complete relief from public awareness regulations or a requirement to pass along information received from the distribution company providing gas service to the master meter operator.
        Given the proximity of the master meter system to the gas distribution company's pipeline, customers of the master meter operator may already receive information from the gas distribution company. The gas distribution company will provide information about recognizing and reporting a pipeline safety issue. However, this would not ordinarily include information about the master meter system or how to notify the master meter operator about pipeline events on the master meter system. The master meter operator needs to fill this information gap for its customers. We propose to require a master meter operator to conduct a limited public education program reaching (1) customers of the master meter system and (2) persons controlling other property, if any, the master meter system crosses.

        Proposed 49 CFR 192.616(j) provides the alternative approach to public awareness programs just described. We based it on the communication requirements for customers described in API RP 1162. To make compliance easier for these operators, we have spelled out the requirements in the language of the proposed rule rather than in cross-referencing API RP 1162.
        We are proposing to relieve the master meter operators of the rest of the requirements of the more extensive API RP 1162 public awareness program. The damage prevention regulations have long excepted master meter operators from requirements to extend outreach activities to excavators and the public. (49 CFR 192.614(e)). In excepting master meter operators, we found their participation in the activities unnecessary for safety. These outreach activities are consistent with damage prevention outreach described for public awareness programs in API RP 1162. As a pipeline operator, the operator of a master meter has a continuing duty, under 49 CFR 192.615, to maintain liaison with local emergency responders. This liaison ensures communication and coordination if a pipeline emergency occurs. A pipeline emergency on a master meter system will likely be contained on the property owned by the operator of the master meter system. However, the operator of a master meter system lacks the expertise of the local gas distribution company in pipeline safety issues needed to effectively conduct the more extensive public awareness program described in API RP 1162 for outreach to the responders, local officials, excavators, and the general public.
        Applicability to Operators of Petroleum Gas Systems
        Many operators of petroleum gas systems are similar to operators of master meters because they distribute gas as an incidental part of their primary business. The operator of a petroleum gas system receives a supply of propane (or similar petroleum product), frequently by truck; vaporizes it; and supplies its customers with petroleum gas. A petroleum gas system may be in a remote area without gas distribution service, for example a ski lodge. Data received from forty-eight state pipeline safety agencies in 2005 shows over 1,000 petroleum gas systems in operation. Operators of petroleum gas systems with more than 100 customers file annual reports with PHMSA along with other gas distribution operators. However, because these reports do not identify the type of gas distributed, we have no quantified data about the size of petroleum gas systems, either in terms of mileage or of number of customers.
        Some operators of a petroleum gas system distribute gas as a major part of their business. These operators have pipeline safety expertise equivalent to other gas distribution companies and should develop and implement public awareness programs. Others, like operators of master meter systems, distribute gas incidentally to a primary business, such as property management. These petroleum gas operators need to communicate with their customers and those persons controlling property they cross. They also need to maintain liaison required by 49 CFR 192.615 with emergency responders. However, they will be less effective in the remaining outreach activities required for public awareness. We propose to relieve them of public awareness requirements to the same extent as master meter operators, retaining the same communication requirements. Proposed 49 CFR 192.616(j), which provides the alternative for master meter operators, also addresses petroleum gas operators.
        Compliance Dates
        The regulations currently require development and implementation of public awareness programs meeting API RP 1162. This proposal provides less onerous requirements for master meter and petroleum gas operators (for whom gas transportation is not a primary business activity) regardless of size. We propose to require compliance in early 2007. We believe this will allow sufficient time for compliance.
        Statutory Considerations
        PHMSA has broad authority to issue safety standards on the operation and maintenance of gas and hazardous liquid pipelines. This authority is in 49 U.S.C. 60102(a). In addition, 49 U.S.C. 60116 provides specific requirements for operators to develop public awareness programs and authorizes PHMSA to issue implementing regulations. Although this proposed rule provides less onerous requirements for certain master meter and petroleum gas system operators, compliance with it would satisfy the requirements 49 U.S.C. 60116 places on operators. Under 49 U.S.C. 60102(b), a pipeline safety standard must be practicable and designed to meet the need for pipeline safety and for protection of the environment. To satisfy this requirement, PHMSA must consider several factors in issuing a safety standard. These factors include the relevant available pipeline safety and environmental information, the appropriateness of the standard for the type of pipeline, the reasonableness of the standard, and reasonably identifiable or estimated costs and benefits. PHMSA has considered these factors in developing this proposed rule. PHMSA must also consider any comments received from the public and any comments and recommendations of the Technical Pipeline Safety Standards Committee on gas pipeline safety standards and the Technical Hazardous Liquid Pipeline Safety Standards Committee on hazardous liquid pipeline safety standards (pipeline advisory committees). This document seeks public comment on the proposed rule; the pipeline advisory committees will formally consider it in a future meeting. PHMSA will address the public comments and the recommendations of the pipeline advisory committees when the agency prepares a final rule.
        Regulatory Analyses and Notices
        Privacy Act Statement

        Anyone may search the electronic form of all comments received for any of our dockets. You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477) or you may visit http://dms.dot.gov.
        Executive Order 12866 and DOT Policies and Procedures
        This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866 (58 FR 51735) and, therefore, was not subject to review by the Office of Management and Budget. This proposed rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034).
        Regulatory Flexibility Act
        Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), PHMSA must consider whether rulemaking actions would have a significant economic impact on a substantial number of small entities. This proposed rule would affect operators of master meters and petroleum gas systems. Although we do not have quantitative data, we believe many of the operators of these systems are small entities. This proposed rule would relieve regulatory burden for most of these operators. PHMSA concludes this proposed rule would not have a significant negative economic impact on any small entity.
        Executive Order 13175

        PHMSA has analyzed this proposed rulemaking according to Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Because the proposed rulemaking would not significantly or uniquely affect the communities of the Indian tribal governments or impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply.
        Paperwork Reduction Act
        This proposed rule does not impose any new information collection requirements.
        Unfunded Mandates Reform Act of 1995
        This proposed rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the proposed rulemaking.
        National Environmental Policy Act

        PHMSA has analyzed the proposed rulemaking for purposes of the National Environmental Policy Act (42 U.S.C. 4321 et seq.) and preliminarily determined the proposed rulemaking is unlikely to affect the quality of the human environment significantly. An environmental assessment document is available for review in the docket. PHMSA will make a final determination on environmental impact after reviewing the comments to this proposal.
        Executive Order 13132
        PHMSA has analyzed the proposed rulemaking according to Executive Order 13132 (“Federalism”). The proposed rule does not have a substantial direct effect on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. The proposed rule does not impose substantial direct compliance costs on State and local governments. This proposed regulation would not preempt state law for intrastate pipelines. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
        Executive Order 13211
        Transporting gas impacts the nation's available energy supply. However, this proposed rulemaking is not a “significant energy action” under Executive Order 13211. It also is not a significant regulatory action under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, the Administrator of the Office of Information and Regulatory Affairs has not identified this proposed rule as a significant energy action.

          List of Subjects in 49 CFR Part 192
          Pipeline safety.

        For the reasons provided in the preamble, PHMSA proposes to amend 49 CFR Part 192 as follows:

          PART 192—TRANSPORTATION OF NATURAL AND OTHER GAS BY PIPELINE: MINIMUM FEDERAL SAFETY STANDARDS
          1. The authority citation for part 192 continues to read as follows:

            Authority:
            49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60110, 60113, 60116, and 60118; and 49 CFR 1.53.

          2. Amend § 192.616 as follows:
          a. Revise paragraph (a);
          b. Amend paragraph (h) by revising the second sentence; and
          c. Add paragraph (j).
          The changes read as follows:

            § 192.616
            Public awareness.
            (a) Except for an operator of a master meter or petroleum gas system covered under paragraph (j) of this section, each pipeline operator must develop and implement a written continuing public education program that follows the guidance provided in the American Petroleum Institute's (API) Recommended Practice (RP) 1162 (IBR, see § 192.7).

            (h) * * * The operator of a master meter or petroleum gas system covered under paragraph (j) of this section must complete development of its written procedure by March 31, 2007. * * *

            (j) Unless the operator transports gas as a primary activity, the operator of a master meter or petroleum gas system is not required to develop a public awareness program as prescribed in paragraphs (a) through (g) of this section. Instead the operator must develop and implement a written procedure to provide its customers public awareness messages twice annually. If the master meter or petroleum gas system is located on property the operator does not control, the operator must provide similar messages twice annually to persons controlling the property. The public awareness message must include:
            (1) A description of the purpose and reliability of the pipeline;
            (2) An overview of the hazards of the pipeline and prevention measures used;
            (3) Information about damage prevention;
            (4) How to recognize and respond to a leak; and
            (5) How to get additional information.

            Issued in Washington, DC, on September 19, 2006.
            Theodore L. Willke,
            Acting Associate Administrator for Pipeline Safety.

      [FR Doc. E6-16031 Filed 9-28-06; 8:45 am]
      BILLING CODE 4910-60-P


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 90
        [PS Docket No. 09-19; RM-11514; RM-11531; FCC 13-98]
        Travelers' Information Stations

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:
          In this Further Notice of Proposed Rulemaking, the Commission proposes an amendment to part 90 of the Commission's rules pertaining to public safety Travelers' Information Stations (TIS), which Public Safety Pool-eligible entities operate to transmit noncommercial, travel-related information over AM band frequencies to motorists on a localized basis. The Commission proposes to delete the portion of the Commission's rules which require the filtering of TIS audio frequencies above 3 kHz.

          DATES:
          Submit comments on or before September 18, 2013. Submit reply comments October 3, 2013.

          ADDRESSES:
          You may submit comments, identified by PS Docket No. 09-19; RM-11514; RM-11531, 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://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting comments.
          • Mail: U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554. 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.
          • Hand or Messenger Delivery: 445 12th St. SW., Room TW-A325, Washington, DC 20554.
          • People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: FCC504@fcc.gov or phone: 202-418-0530 or TTY: 202-418-0432.

          For detailed instructions for submitting comments, additional information on the rulemaking process, and where to find materials available for inspection, see the SUPPLEMENTARY INFORMATION section of this document.

          FOR FURTHER INFORMATION CONTACT:

          Thomas Eng, Policy and Licensing Division, Public Safety and Homeland Security Bureau, Federal Communications Commission, 445 12th Street SW., Washington, DC 20554, at (202) 418-0019, TTY (202) 418-7233, or via email at Thomas.Eng@fcc.gov.

        SUPPLEMENTARY INFORMATION:
        This is a summary of the Commission's Further Notice of Proposed Rulemaking in PS Docket No. 09-19; RM-11514; RM-11531; adopted July 18, 2013 and released on July 23, 2013. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., in person at 445 12th Street SW., Room CY-B402, Washington, DC 20554, via telephone at (202) 488-5300, via facsimile at (202) 488-5563, or via email at FCC@BCPIWEB.com. Alternative formats (computer diskette, large print, audio cassette, and Braille) are available to persons with disabilities or by sending an email to FCC504@fcc.gov or calling the Consumer and Governmental Affairs Bureau at (202) 418-0530, TTY (202) 418-0432. This document is also available on the Commission's Web site at http://www.fcc.gov.
        Comments

        Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments. 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 (May 1, 1998).
        • Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/ or the Federal eRulemaking Portal: http://www.regulations.gov.

        • 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. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
        • All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 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.
        I. Introduction

        Currently, the Commission authorizes Public Safety Pool-eligible entities to use Travelers' Information Stations (TIS) to transmit noncommercial, travel-related information over AM band frequencies to motorists on a localized basis. In this proceeding, we address the scope of permissible operations under our TIS rules in response to petitions filed by Highway Information Systems (HIS), the American Association of Information Radio Operators (AAIRO), and the American Association of State Highway and Transportation Officials (AASHTO). The Commission invited comment on the issues raised in these three petitions in a Notice of Proposed Rulemaking (NPRM) adopted in 2010.
        In this Further Notice of Proposed Rulemaking (Further Notice), we propose to delete § 90.242(b)(8) of the Commission's rules, which requires the filtering of TIS audio frequencies above 3 kHz. The record indicates that the filtering requirement significantly decreases the audibility of TIS broadcasts while adding little to the interference protection of commercial broadcasters. However, because the Commission did not specifically address the filtering issue in the initial Notice of Proposed Rulemaking in this docket, we request comment on this proposed rule change.
        II. Further Notice of Proposed Rulemaking
        Although the NPRM did not raise the issue, numerous commenters argue for removal of the filtering provision of § 90.242(b)(8), which requires the filtering of TIS audio frequencies above 3 kHz. Commenters contend that the required filtering decreases the audibility of TIS broadcasts in general, and especially at night and over difficult terrain. Burden suggests this restriction could be removed with little or no increased interference with adjacent channel broadcasters. No commenter has opposed such removal.
        Accordingly, we propose to remove this requirement from the rules. Because this particular issue was not previously proposed in the NPRM but rather was introduced by commenters in the record, we seek comment in this Further Notice of Proposed Rulemaking in order to establish a record and consider any issues that may not have been raised in docket prior to this time. Accordingly, we ask whether there is any reason this restriction should not be removed. Is there a potential for increased interference with broadcasters? If not, are there any other reasons why we should not remove the filtering restriction? We ask that all comments for or against the lifting of this restriction provide empirical evidence for the position taken.
        III. Procedural Matters
        Ex Parte Presentations

        This matter shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with § 1.1206(b). In proceedings governed by § 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.
        Regulatory Flexibility Analysis

        As required by the Regulatory Flexibility Act of 1980, see 5 U.S.C. 603, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules addressed in this document. The IRFA is set forth in Appendix E of the Report and Order and Further Notice of Proposed Rulemaking. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines as comments filed in response to this Further Notice of Proposed Rulemaking as set forth herein, and they should have a separate and distinct heading designating them as responses to the IRFA. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of the Report and Order and Further Notice of Proposed Rulemaking, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). See 5 U.S.C. 603(a).
        Paperwork Reduction Act Analysis
        This Further Notice of Proposed Rulemaking does not contain proposed new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, the Further Notice of Proposed Rulemaking does not contain any proposed 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, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
        IV. Ordering Clauses
        Accordingly, it is ordered that pursuant to sections 4(i) and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i) and 303, that this Report and Order and Further Notice of Proposed Rulemaking is adopted.

          It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order and Further Notice of Proposed Rulemaking, including the Initial and Final Regulatory Flexibility Analyses, to the Chief Counsel for Advocacy of the Small Business Administration.

          It is further ordered that pursuant to applicable procedures set forth in §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on this Further Notice of Proposed Rulemaking on or before 30 days after publication in the Federal Register, and interested parties may file reply comments on or before 45 days after publication in the Federal Register.

          List of Subjects in 47 CFR Part 90
          Communications equipment, Radio.

          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 90 as follows:

          PART 90—PRIVATE LAND MOBILE RADIO SERVICES

        1. The authority citation for part 90 continues to read as follows:

          Authority:
          Sections 4(i), 11, 303(g), 303(r) and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r) and 332(c)(7), and Title VI of the Middle Class Tax Relief and Jobs Creation Act of 2012, Pub. L. 112-96, 126 Stat. 156.

          § 90.242
          [Amended]

        2. Remove and reserve paragraph (b)(8).

      [FR Doc. 2013-19995 Filed 8-16-13; 8:45 am]
      BILLING CODE 6712-01-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [FWS-R8-ES-2008-0034; 92210-1117-0000-B4]
        RIN 1018-AV24
        Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Bay Checkerspot Butterfly (Euphydryas editha bayensis)

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period, notice of availability of draft economic analysis, and amended required determinations.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on the proposed revised designation of critical habitat for the Bay checkerspot butterfly (Euphydryas editha bayensis) under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of the draft economic analysis (DEA) of the proposed revised critical habitat designation and an amended required determinations section of the proposal. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the proposed rule, the associated DEA, and the amended required determinations section. You do not have to resend comments sent earlier. We will incorporate them into the public record as part of this comment period, and we will fully consider them when preparing our final determination.

          DATES:
          We will accept public comments received or postmarked on or before May 15, 2008.

          ADDRESSES:
          You may submit comments by one of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R8-ES-2008-0034; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

          We will not accept e-mail or faxes. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information).

          FOR FURTHER INFORMATION CONTACT:
          Susan Moore, Field Supervisor or Arnold Roessler, Listing Program Coordinator, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-2605, Sacramento, CA 95825; telephone 916-414-6600; or facsimile 916-414-6712. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Public Comments

        We will accept written comments and information during this reopened comment period on our proposed revised critical habitat designation for the Bay checkerspot butterfly published in the Federal Register on August 22, 2007 (72 FR 48178), the DEA of the proposed revised designation, and the amended required determinations provided in this document. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

        (1) The reasons why we should or should not designate habitat as critical habitat under section 4 of the Act (16 U.S.C. 1531 et seq.).
        (2) Specific information on:

        • The amount and distribution of Bay checkerspot butterfly habitat,
        • What areas occupied at the time of listing that contain features essential to the conservation of the species we should include in the designation and why, and
        • What areas not occupied at the time of listing are essential for the conservation of the species and why.
        (3) Land-use designations and current or planned activities in the subject areas and their possible effects on proposed critical habitat.
        (4) Information on the extent to which any State and local environmental protection measures we reference in the DEA may have been adopted largely as a result of the listing of the Bay checkerspot butterfly, and which were either already in place at the time of listing or enacted for other reasons.
        (5) Information on whether the DEA identifies all State and local costs and benefits attributable to the proposed critical habitat designation, and information on any costs or benefits that we have overlooked.
        (6) Information on whether the DEA makes appropriate assumptions regarding current practices and any regulatory changes likely if we designate revised critical habitat.
        (7) Information on whether the DEA correctly assesses the effect on regional costs associated with any land use controls that may result from the revised critical habitat designation.
        (8) Information on areas that the revised critical habitat designation could potentially impact to a disproportionate degree.
        (9) Any foreseeable economic, national-security, or other potential impacts resulting from the proposed revised designation and, in particular, any impacts on small entities, and the benefits of including or excluding areas that exhibit these impacts.
        (10) Information on whether the DEA identifies all costs that could result from the revised designation.
        (11) Information on any quantifiable economic benefits of the revised designation of critical habitat.
        (12) Whether the benefits of excluding any particular area outweigh the benefits of including that area under section 4(b)(2) of the Act.
        (13) Economic data on the incremental costs of designating any particular area as revised critical habitat.
        (14) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.
        If you submitted comments or information during the initial comment period from August 22 to October 22, 2007, on the proposed rule (72 FR 48178), please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in preparation of our final determination. Our final determination concerning revised critical habitat will take into consideration all written comments and any additional information we receive during both comment periods. On the basis of public comments, we may, during the development of our final designation, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

        You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We will not consider comments sent by e-mail or fax or to an address not listed in the ADDRESSES section.
        If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy comments on http://www.regulations.gov.

        Comments and materials we receive, as well as supporting documentation we used in preparing this notice will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

        You may obtain copies of the proposed rule and DEA by mail from the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT) or by visiting our Web site at http://www.fws.gov/sacramento.

        Background
        On April 30, 2001, we published in the Federal Register the final designation of critical habitat for the Bay checkerspot butterfly (66 FR 21450, April 30, 2001) which encompassed approximately 23,903 acres (ac) (9,673 hectares (ha)). On March 30, 2005, the Home Builders Association of Northern California (Home Builders) filed a complaint contending, among other things, that the Service failed to adequately analyze the economic costs of the designation of critical habitat for this subspecies (Home Builders of Northern California v. U.S. Fish and Wildlife Service, et al. Case No. cv-01363-LKK-JFM). On February 24, 2006, the Service entered into a settlement agreement with Home Builders to submit for publication a proposed revised critical habitat designation for this subspecies to the Federal Register by August 14, 2007, and to submit a final determination of critical habitat for publication by August 14, 2008. The April 30, 2001, designation remains in place during this revision process. On August 22, 2007, we published a proposed rule to revise critical habitat for the Bay checkerspot butterfly (72 FR 48178), identifying a total of approximately 19,746 ac (7,990 ha) of land in San Mateo and Santa Clara Counties, California.
        Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act.
        Under section 4(b)(2) of the Act, we may exclude an area from critical habitat if we determine that the benefits of such exclusion outweigh the benefits of including that particular area as critical habitat, unless failure to designate that specific area as critical habitat will result in the extinction of the species. We may exclude an area from designation as critical habitat based on economic impacts, national security, or any other relevant impact.
        If we make final the proposed rule of August 22, 2007, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.
        Draft Economic Analysis
        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We have prepared a DEA of the proposed revised critical habitat designation based on our August 22, 2007, proposed rule to revise the critical habitat designation for the Bay checkerspot butterfly (72 FR 48178).
        The intent of the DEA is to quantify the economic impacts of all potential conservation efforts for the Bay checkerspot butterfly; some of these costs will likely be incurred regardless of whether we revise the designated critical habitat. The DEA provides estimated costs of the foreseeable potential economic impacts of the proposed revised critical habitat designation (incremental impacts) and other conservation-related actions (baseline impacts) for this species over the next 22 years. A 22-year period was chosen because information was available to reliably forecast economic activity to 2030. It also considers past costs associated with conservation of the species from the time it was listed in 1987 (52 FR 35366, September 18, 1987), until the year the proposed revised critical habitat rule was published (72 FR 48178, August 22, 2007). Because the current DEA is analyzing the future costs of the proposed revised designation (72 FR 48178), the costs associated with the current designation of critical habitat (66 FR 21450) have been included only in the past baseline economic impacts.

        The economic analysis quantifies impacts associated with the conservation of the Bay checkerspot butterfly including future urban development, management of invasive plants, pesticide use, and over or under grazing. These activities were identified as factors that may require special management (72 FR 48183-48184). Pre-designation (1987 to 2007) impacts associated with species conservation activities in areas proposed for designation are estimated at approximately $9 million in 2007 dollars. The DEA forecasts baseline economic impacts in the areas proposed for designation to be approximately $390 million ($18 million annualized) (2008 dollars) applying a 3 percent discount rate over the next 22 years, $270 million ($13 million annualized) (2008 dollars) applying a 7 percent discount rate over the next 22 years, and $550 million (25 million annualized) (2008 dollars) at an undiscounted rate over the next 22 years. The DEA forecasts incremental economic impacts to be approximately $0 to $750,000 ($0 to $44,000 annualized) (2008 dollars) applying a 3 percent discount rate over the next 22 years. The cost estimates are based on the proposed revised designation of critical habitat published in the Federal Register on August 22, 2007 (72 FR 48178).

        The DEA considers the potential economic effects of actions relating to the conservation of the Bay checkerspot butterfly, including costs associated with sections 4, 7, and 10 of the Act, as well as costs attributable to the designation of revised critical habitat. It further considers the economic effects of protective measures taken as a result of other Federal, State, and local laws that aid habitat conservation for the Bay checkerspot butterfly in areas containing features essential to the conservation of the species. The DEA considers both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect the “opportunity costs” associated with the commitment of resources to comply with habitat protection measures (such as lost economic opportunities associated with restrictions on land use).
        The DEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on government agencies, private businesses, and individuals. The DEA measures lost economic efficiency associated with residential and commercial development and public projects and activities, such as economic impacts on water management and transportation projects, Federal lands, small entities, and the energy industry. Decision-makers can use this information to assess whether the effects of the revised designation might unduly burden a particular group or economic sector. Finally, the DEA looks retrospectively at costs that have been incurred since the date we listed the Bay checkerspot butterfly as endangered (52 FR 35366, September 18, 1987) and considers those costs that may occur in the 22 years following the designation of critical habitat. Because the DEA considers the potential economic effects of all actions relating to the conservation of the Bay checkerspot butterfly, including costs associated with sections 4, 7, and 10 of the Act and those attributable to a revised designation of critical habitat, the DEA may have overestimated the potential economic impacts of the revised critical habitat designation.
        As stated earlier, we are soliciting data and comments from the public on this DEA, as well as on all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or its supporting documents to incorporate or address information we receive during this comment period. In particular, we may exclude an area from the revised critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as revised critical habitat, provided the exclusion will not result in the extinction of the species.
        Required Determinations—Amended
        In our August 22, 2007, proposed rule (72 FR 48178), we indicated that we would defer our determination of compliance with several statutes and Executive Orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA. We have not made use of the DEA data to make these determinations. In this document we affirm the information contained in our proposed rule concerning Executive Order (E.O.) 13132; E.O. 12988; the Paperwork Reduction Act; and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments (59 FR 22951). However, based on the DEA data, we revise our required determinations concerning E.O. 12866 and the Regulatory Flexibility Act, E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform Act, and E.O. 12630 (Takings).
        Regulatory Planning and Review
        The Office of Management and Budget (OMB) has determined that this rule is not significant and has not reviewed this rule under Executive Order 12866 (E.O. 12866). OMB bases its determination upon the following four criteria:
        (a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
        (b) Whether the rule will create inconsistencies with other Federal agencies' actions.
        (c) Whether the rule will materially affect entitlements, grants, user fees, loan programs or the rights and obligations of their recipients.
        (d) Whether the rule raises novel legal or policy issues.
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) (5 U.S.C. 802(2)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based on our DEA of the proposed revised designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments we receive, we may revised this determination as part of our final rulemaking.
        According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this revised designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
        To determine if the proposed revised designation of critical habitat for the Bay checkerspot butterfly would affect a substantial number of small entities, we considered the number of affected small entities within particular types of economic activities, such as residential and commercial development. In order to determine whether it is appropriate for our agency to certify that this rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat affects activities conducted, funded, permitted, or authorized by Federal agencies.
        If we finalize this proposed revised critical habitat designation, Federal agencies must consult with us under section 7 of the Act if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.

        In our DEA of the proposed revised critical habitat designation, we evaluated the potential economic effects on small business entities from conservation actions related to the listing of the Bay checkerspot butterfly and the proposed revised designation of the species' critical habitat.
        The DEA did not identify any small entities according to the Small Business Administration's (SBA) definition of small entities. As a result there are no economic impacts to small businesses with the designation of this critical habitat. We have considered whether this rule would result in a significant economic effect on a substantial number of small entities. We have determined and therefore certify that, for the above reasons and based on currently available information, the proposed designation will not have a significant economic impact on a substantial number of small business entities.
        In summary, we have considered whether the proposed rule would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if promulgated, this proposed rule would not have a significant economic impact on a substantial number of small entities. Therefore, an initial regulatory flexibility analysis is not required.
        Executive Order 13211—Energy Supply, Distribution, and Use
        On May 18, 2001, the President issued E.O. 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. OMB's guidance for implementing this Executive Order outlines nine outcomes that may constitute “a significant adverse effect” when compared to no regulatory action. The DEA has identified one electric energy firm (Calpine Corporation) which owns land within the proposed revised designation of critical habitat (Unit 5). In 2000, the Calpine Corporation proposed to construct and operate a 600-megawatt, natural gas-fired, combined cycle electric generation facility. The land located within the proposed revised designation of critical habitat was purchased by the Calpine Corporation as compensation to off-set project-related effects to the Bay checkerspot butterfly and its habitat as a result of the U.S. Environmental Protection Agency (EPA) permitting of the Calpine Corporation's Metcalf Energy Center in Santa Clara County, California (Service File 1-1-00-F-235) in 2001. The Calpine Corporation does not plan to expand its facilities or construct new facilities associated with the Metcalf Energy Center on any of its land within or near the area. The biological opinion under section 7 of the Act for this project identifies the measures already taken by the Calpine Corporation to compensate for effects to the butterfly and its habitat, and the designation of revised critical habitat is not expected to lead to any reduction in electricity production or an increase in cost of energy production or distribution.
        Thus, based on information in the DEA, we do not expect Bay checkerspot butterfly conservation activities within proposed revised critical habitat to lead to energy-related impacts. As such, we do not expect the proposed revised designation of critical habitat to significantly affect energy supplies, distribution, or use, and a Statement of Energy Effects is not required.
        Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

        In accordance with the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.), the Service makes the following findings:
        (a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments,” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or Tribal governments “lack authority” to adjust accordingly. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”
        Critical habitat designation does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Designation of critical habitat may indirectly impact non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action that may be indirectly impacted by the designation of critical habitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
        (b) We do not believe that this rule will significantly or uniquely affect small governments. As discussed in the DEA, the majority of lands proposed as revised critical habitat are comprised of privately owned lands, which do not qualify as a small government. Consequently, we do not believe that revised critical habitat designation would significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.
        Executive Order 12630—Takings
        In accordance with E.O. 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing revised critical habitat for the Bay checkerspot butterfly in a takings implications assessment. Our takings implications assessment concludes that this proposed revised designation of critical habitat for the Bay checkerspot butterfly does not pose significant takings implications.
        References Cited

        A complete list of all references we cited in the proposed rule is available on http://www.regulations.gov.

        Author
        The primary author of this notice is staff of the Sacramento Fish and Wildlife Office.
        Authority

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

          Dated: April 2, 2008.
           David M. Verhey,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

       [FR Doc. E8-7689 Filed 4-14-08; 8:45 am]
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