        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17

        Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List Ptilagrostis porteri (Porter feathergrass) as Threatened or Endangered

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of 90-day petition finding.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding for a petition to list Ptilagrostis porteri (Porter feathergrass) as threatened or endangered under the Endangered Species Act of 1973, as amended (the Act). We find that the petition and additional information in Service files do not present substantial scientific or commercial information indicating that listing this species may be warranted. We will not be initiating a further status review in response to this petition. The public may submit to us any new information that becomes available concerning the status of or threats to the species.

          DATES:
          The finding announced in this document was made on January 28, 2005. New information concerning this species may be submitted for our consideration at any time.

          ADDRESSES:

          Data, information, comments, or questions concerning this petition finding should be submitted to the Western Colorado Supervisor, U.S. Fish and Wildlife Service, Ecological Services Field Office, 764 Horizon Drive, Building B, Grand Junction, Colorado 81506. The petition finding and supporting information are available for public inspection, by appointment, during normal business hours at the above address. The petition and finding are available on our Web site at http://r6.fws.gov/plants/feathergrass.

          FOR FURTHER INFORMATION CONTACT:

          Allan R. Pfister, Supervisor, Western Colorado Ecological Services Field Office, U.S. Fish and Wildlife Service (see ADDRESSES section) (telephone (970) 243-2778; facsimile (970) 245-6933).

        SUPPLEMENTARY INFORMATION:

        Background

        Section 4(b)(3)(A) of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531 et seq.), requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information to demonstrate that the petitioned action may be warranted. This finding is to be based on all information available to us at the time the finding is made. To the maximum extent practicable, we make this finding within 90 days of the date the petition was received, and notice of the finding must be published promptly in the Federal Register.

        We received a petition, dated March 5, 2002, to list the plant Ptilagrostis porteri (Porter feathergrass) as threatened or endangered within its historic range. The petition was submitted by Jacob Smith, Executive Director of the Center for Native Ecosystems, and by the Colorado Native Plant Society, Joshua Pollock, Southern Rockies Ecosystem Project, and the American Lands Alliance. We received the petition on March 7, 2002. Action on this petition was precluded due to other priority actions and because funding in Fiscal Years 2002 and 2003 was not sufficient to process a preliminary finding. The petitioners filed a 60-day notice of intent to sue on June 26, 2002, alleging that the Service violated the Act by failing to prepare a 90-day petition finding. A lawsuit was filed in the Federal District Court for the District of Arizona on September 17, 2003. An agreement was reached on May 24, 2004, specifying that the Service would submit for publication in the Federal Register on or before January 31, 2005, a determination whether the petition presents substantial information indicating that listing may be warranted.
        Species Information

          Ptilagrostis porteri is a small, perennial bunchgrass with a tuft of fine, narrow basal leaves 2-12 centimeters (cm) (0.8-4.7 inches (in)) long. Stems are 20-35 cm (7.9-13.8 in) tall with single-flowered spikelets in a terminal panicle about 5-10 cm (2-4 in) long. Panicle branches can be closed or open. Awns are 1.5-2 cm (0.6-0.8 in) long, feathery, and bent below the middle.

          Ptilagrostis porteri has very specific soil hydration requirements. It grows on the shoulders and sides of elevated hummocks that have formed in peat fens. The hummocks are elevated above the water table, providing a moist but not saturated peat substrate. Most of the species' habitat is classified as rich or extreme-rich calcareous fen. The pH of these fens is high (7.4-8.6) compared to other montane fens, and the peat accumulates at a much slower rate, about 11 cm (4 in) per thousand years (Sanderson and March 1996). Fens are considered a category 1, irreplaceable resource in the Service's Region 6 (Hartmann 1999).
        The fens where P. porteri grows are found at elevations from 2,800 to 3,400 meters (m) (9,200 to 11,200 feet (ft)) in the north end of South Park and surrounding Tarryall, Mosquito, and Kenosha mountain ranges in Park County, Colorado, about 130 kilometers (km) (80 miles (mi)) southwest of Denver. One small population occurs in neighboring Summit County, and one small outlier population occurs about 56 km (35 mi) to the southeast in El Paso County. Extreme-rich fens with a similar flora are found elsewhere in the United States in only a few locations in Wyoming and California.

          Ptilagrostis porteri is the only Ptilagrostis species in North America. The Colorado Natural Heritage Program (CNHP) ranks P. porteri as imperiled globally (G2) and in the State of Colorado (S2). It was a Federal category 2 candidate species until 1996 when the candidate categories were discontinued (61 FR 64481). It is designated as a sensitive species on the U.S. Forest Service (USFS) Region 2 list for Colorado.
        Twenty-two populations of Ptilagrostis porteri are recorded with data in the CNHP data system; three additional records have no available information and two historical records have not been relocated. The CNHP has determined that there are 284 hectares (ha) (702 acres (ac)) of occupied habitat, based on field survey maps of the populations recorded in their geographic information system (CNHP 2004). Other estimates from field observations compiled by Johnston (2004) indicate that the total occupied habitat could be 650 ha (1,600 ac). For this finding, we use the acreage determined by CNHP. Available plant inventory records are too inconsistent to provide reliable estimates of population sizes or trends (CNHP 2004, Johnston 2004, and Sanderson 2000).
        Fourteen of the 22 known populations are on USFS land, primarily in Pike National Forest. They contain more than 50 percent of the plants on 183 ha (451 ac) of habitat. The remaining 8 populations are in private or mixed ownership, and contain less than 50 percent of the plants on 104 ha (258 ac) of the known habitat (CNHP 2004).
        Each P. porteri population is ranked by CNHP for quality and viability. Six populations are ranked A (relatively large, intact, defensible and viable). Five A-ranked populations occur on USFS land, covering about 137 ha (338 ac) of occupied habitat; the remaining A-ranked population occupies an estimated 7 ha (18 ac) of private land. Seven populations are ranked B (small but in good condition, or large but disturbed and/or not viable or defensible). Five B-ranked populations occur on 44 ha (108 ac) of USFS land, and one B-ranked population occurs on 54 ha (134 ac) of private land. Eight populations are ranked C (small, in poor condition, possibly not viable). Three C-ranked populations occur on 2 ha (5 ac) of USFS land, three C-ranked populations occur on 36 ha (89 ac) of USFS and private lands, and two C-ranked populations occur on 6 ha (15 ac) of mostly private lands. One population is ranked D (degraded or not viable); it occurs on 0.8 ha (2 ac) of private land (CNHP 2004).
        The 13 A- and B-ranked populations occur in 2 separate watersheds (CNHP 2004). Eight populations are in the South Platte Headwaters watershed. They occur along two headwater tributaries flowing down from the rim of South Park on the west and north sides to the South Platte River, one via the Middle Fork of the South Platte and the other one via Tarryall Creek. Five populations are in the Upper South Platte watershed. Within this watershed, the populations are located in two separate drainages. One drainage runs east into the North Fork of the South Platte; the other exits through underground aquifers (von Ahlefeldt 1989). This distribution across two watersheds and four headwater sources reduces the potential impact to the total population that may result from one water project.
        Conservation Status

        Pursuant to section 4(a) of the ESA, we may list a species of a plant taxon on the basis of any one of the following factors—(A) Present or threatened destruction, modification, or curtailment of habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) inadequacy of existing regulatory mechanisms; or (E) other manmade or natural factors affecting its continued existence. The petitioners cite threats under factors A, D, and E. The petitioners did not mention any threats due to overutilization (factor B). This grass is not easily harvested for hay, nor is it currently of commercial or horticultural interest. Therefore, overutilization is not considered to be a threat to this species. The petitioners likewise did not cite any threats due to disease or predation (factor C). Predation from grazing is not considered to be a threat to the species because it is not known to be palatable to livestock, and no diseases or pests are known to have any effect on the species (Johnston 2004; von Ahlefeldt 1989; CNHP 2004). Therefore, disease and predation are not considered to be threats to this species.

        In regard to factor A (The Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range), the petition states that Ptilagrostis porteri habitat is threatened by: (1) Water diversions and other hydrological alterations; (2) peat mining and other mining; (3) residential development; (4) livestock grazing; (5) motorized vehicle use; (6) hiking and other non-motorized recreation; and (7) beaver activity.
        Potential impacts to the moisture regime for Ptilagrostis porteri arise from water projects that would draw down the ground water level and projects that would divert surface water from wetlands and irrigated agricultural lands. The water is purchased by municipalities in the Denver Metropolitan area. The South Park Conjunctive Use Project proposal, cited by the petitioners and active at the time of the petition, would have drawn water from creeks upstream of P. porteri populations and from the water table under the wetlands in South Park to supply the city of Aurora in the Denver Metro area with 2,500 hectare-meters (ha-m) (20,000 acre-feet (ac-ft)) of water per year. Water was to be delivered as stream flow in a main tributary creek to the South Platte River (U.S. Geological Survey 2002). The project would have impacted two of the four major drainages where high-quality P. porteri populations are found, and may, therefore, have constituted a threat to the species. Lowering the water table in the fen habitat would create conditions too dry for P. porteri, whereas construction of recharge reservoirs could over-water the microhabitat for P. porteri and could destroy the fen vegetation community. Petitioners state that the project threatened to severely impact 50 to 75 percent of the total habitat occupied by P. porteri, based on an assessment by Sanderson (2000).
        The South Park Conjunctive Use Project proposal was rejected in District Court for Water Division No. 1 in 1998 in favor of the plaintiff, the Park County Water Preservation Coalition, based on augmentation modeling that showed that available water was insufficient. The Colorado Supreme Court rejected an appeal after the date this listing petition was submitted (Colorado Bar Association 2002). No other major water draw-down projects are currently being proposed in Park County (G. Nichols 2004, Eiseman 2004).

        The City of Aurora recently purchased 900 ha-m (7,000 ac-ft) of water per year from an existing City of Thornton project that has been diverting water from 11 South Park ranches for about 20 years (McHugh 2004). There are no available data to indicate whether Ptilagrostis porteri habitat has been impacted by this ongoing diversion. The City of Centennial in the metropolitan Denver area has purchased surface water from another ranch that has a 35-ha (86-ac) C-ranked population of P. porteri. Two other populations described by the petitioners have been ditched and partially drained in the past. Both of these populations are ranked C because they are small, but the remaining habitat still has a water level sufficient to support the species (CNHP 2004). The town of Fairplay is no longer depending on Beaver Creek water that flows through two P. porteri populations; they are now using well water (G. Nichols 2004).
        Conservation easement agreements including water rights have recently been completed for three private ranches as part of the South Park Basin Legacy Project. Completed easements now protect a 7-ha (18-ac) A-ranked population and a 0.8-ha (2-ac) D-ranked population (CNHP 2004).
        Based on the foregoing, we have concluded that neither the petition nor our files contain substantial information indicating that listing this species may be warranted based on impacts from water diversions and other hydrological alterations.

        Petitioners state that there is a moratorium on peat mining in Park County and that the threat is primarily the possibility that the moratorium could be rescinded. Park County regulations allow peat mining to continue if it was permitted before the new policy was adopted, but the County has no record of current activity, nor is there any expectation that new operations will be allowed (Eiseman 2004). Sanderson and March (1996) reported that nearly 20 percent of the total extreme rich fen area in South Park has been permanently lost due to past mining of peat. At least four populations of Ptilagrostis porteri have been partially destroyed by peat mining in the past. The remaining portions of these fens survive in good condition because they have subsurface water sources (CNHP 2004). The hypothetical possibility of repeal of protective regulations is not substantial information. Therefore, we conclude that there is not substantial information to indicate that listing the species may be warranted as a consequence of impacts from peat mining.

        Placer mining has occurred in the past, and continues at one Ptilagrostis porteri location under a USFS permit issued in 1993. The permit covers small-scale recreational mining, comprising about 30 dredging days per year and other activities by about 20 people on weekends and 4 people on weekdays between May and October. A draft Biological Evaluation by the USFS in 2000 (Howard 2000) found no effect to sensitive plant species, although P. porteri is known to occur within the project area. The petition and our files do not contain substantial information indicating that placer mining might be a threat to the species.

        Petitioners state that residential development alters local hydrology and removes wetland habitat by infilling and, therefore, is a threat to Ptilagrostis porteri. Based on private land ownership (CNHP 2004), about 7 of the 22 populations may be vulnerable to this threat; 2 of the 7 have recently been placed in conservation easements. These populations are located in the South Platte Headwaters watershed in 2 of the 4 main drainage systems that support the species. More new residential development has occurred in South Park in the last 5 years than in the 20 years from 1980 to 2000 (G. Nichols 2004). There are 4 centers of new residential development in South Park along Sacramento Creek and the Middle Fork of the South Platte, at Warm Springs Ranch and in the Silver Hills area, all of which are close to populations of P. porteri. No substantial information is provided in the petition or available in our files on actual impacts of the existing developments on nearby wetlands. Although there are potential cumulative effects on hydrology and physical structure of the fens, we conclude that there is no substantial information in the petition or our files indicating that these might warrant a listing proposal.

        Petitioners state that excessive livestock grazing can cause trampling damage to the fen habitat of Ptilagrostis porteri. Grazing pressures have fluctuated historically. Records kept by the USFS for allotments where the largest P. porteri populations now occur show that cattle grazing was intense during the 1920s and 1930s. Since 1968, major changes in management have been implemented on the National Forest. Photographs taken in 1939 and 1989 show a dramatic increase in vegetation cover on the fens (von Ahlefeldt 1989), and von Ahlefeldt considered moderate grazing to have a minor impact on P. porteri because cattle find it unpalatable and they usually walk between the hummocks without trampling the plants. Field observations of grazing impacts on P. porteri populations over the past 35 years indicate a significant change in grazing management and consequent improvement in the visible condition of vegetation on the fens (CNHP 2004, Johnston 2004). We conclude that neither the petition nor information in our files provides substantial information that grazing is, or is likely to be in the foreseeable future, a threat to the species.

        Petitioners state that evidence of off-road vehicle use, including snowmobiles, has been observed at five of the Ptilagrostis porteri populations. Similar observations have been recorded by CNHP (2004). There is no available additional documentation of the effects of such impacts on this species or its habitat. Thus we conclude that there is no substantial information to indicate that off-road vehicle use presents a threat to the species.

        Petitioners state that trail widening and erosion damage nearby peat bogs. Only minor impacts of this type have been recorded by field surveyors (CNHP 2004). Neither the petition nor our files provides additional information to support the petition's contention that this is a threat to the species. In addition, petitioners cite beaver activity as a potential threat, but state that it is not currently threatening any known populations of Ptilagrostis porteri. We have no information to contradict petitioner's statement that beaver activity is not currently threatening any known populations.

        In regard to factor D (The Inadequacy of Existing Regulatory Mechanisms), petitioners state that existing regulatory mechanisms are inadequate to ensure protection and recovery for Ptilagrostis porteri. The USFS currently manages P. porteri as a sensitive species and the habitat is managed as wetlands, in accordance with the USFS Region 2 Policy on protection of fens (Hilliard 2002) and the Watershed Conservation Practices Handbook for Region 2 (2001). The USFS manages about 65 percent of the P. porteri habitat. The largest known population, A-ranked by CNHP, is in a Federal Wilderness Area on the Pike National Forest. The management practices under these regulations are discussed under Listing Factor A. Just as we determined that there is not substantial information in the petition or our files that the effects of these regulations may warrant listing, there is also no substantial information that the regulations themselves are inadequate and might warrant a listing.
        Petitioners cite the lack of regulations to prevent impacts caused by water diversions as a threat. However, as discussed above, existing law and regulatory mechanisms have resulted in termination of the project cited by petitioners as the greatest threat to the species. The petition does not present, nor do we have, substantial information on other specific threats related to water diversions. Hypothetical possibilities do not constitute substantial scientific information indicating a listing may be warranted. Thus we conclude that the petition has not presented substantial information to indicate that lack of adequate regulatory mechanisms is a threat to the species.

        In regard to factor E (Other Natural or Manmade Factors Affecting the Continued Existence of Ptilagrostis porteri), the petitioners consider the species to be vulnerable due to the small size of most of its populations. They report that only 9 populations have more than 300 plants, 9 have 100 or fewer plants, and 5 populations have 20 or fewer plants. The CNHP (2004) reports 9 recorded populations smaller than 2 ha (5 ac); 1 is ranked A, 1 is ranked B, 6 are ranked C, and 1 is ranked D (the C and D populations are so ranked primarily because they are small). The size of these small populations refers to the extent of occupied habitat within fens that are more extensive. Therefore, size of the population may not be related to size or condition of the habitat or age or susceptibility to drying out. Size also may not indicate ability to reproduce, because the plants can self-fertilize. Thus available information is not substantial enough to indicate that small numbers of plants or acreage by itself pose a threat to this species.
        Finding

        We have reviewed the petition and its supporting documentation, as well as information in our files and other readily available information. On the basis of this review, we find that the petition does not present substantial information indicating that listing of Ptilagrostis porteri may be warranted, nor do we have such information. The petition is based primarily on the threat of habitat destruction by major water draw-down and diversion projects. The major water draw-down project that was imminent at the time of petition submission (2002) is no longer proposed. No water projects are currently planned on Federal land within the species' range. Likewise, substantial information is not available to indicate that the other potential impacts cited by the petitioners rise to a level that threatens the species.
        In making this finding we rely on information provided by the petitioners and that readily available to us, and evaluate that information in accordance with 50 CFR 424.14(b). The contents of this finding summarize information included in the petition and information that was available to us at the time of the petition review. Our review for the purposes of a so-called “90-day” finding under section 4(b)(3)(A) of the ESA and § 424.14(b) of our regulations is limited to a determination of whether the information in the petition constitutes “substantial scientific or commercial information” indicating that listing may be warranted. Available information indicates that the primary threat cited in the petition has been eliminated, and the information relating to it is accordingly no longer applicable. We found that the petition did not provide substantial information on the other threats cited, many of which by the petition's own wording are potential or hypothetical threats rather than existing ones.
        References

        A complete list of all references cited in this finding is available upon request from the Grand Junction Ecological Services Field Office (see
          ADDRESSES section).
        Author

        The primary author of this document is Ellen Mayo, Grand Junction Ecological Services Field Office, U.S. Fish and Wildlife Service (see
          ADDRESSES section).
        Authority

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

          Dated: January 28, 2005.
          Marshall P. Jones,
          Acting Director, U.S. Fish and Wildlife Service.

      [FR Doc. 05-2133 Filed 2-3-05; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 20
        Service Regulations Committee Meeting

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of meeting.

          SUMMARY:
          The Fish and Wildlife Service (hereinafter Service) will conduct an open meeting on January 30, 2008, to identify and discuss preliminary issues concerning the 2008-09 migratory bird hunting regulations.

          DATES:
          The meeting will be held January 30, 2008.

          ADDRESSES:
          The Service Regulations Committee will meet at the Embassy Suites Hotel, Denver—International Airport, 7001 Yampa Street, Denver, Colorado, (303) 574-3000.

          FOR FURTHER INFORMATION CONTACT:
          Robert Blohm, Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, Department of the Interior, ms-4107-ARLSQ, 1849 C Street, NW., Washington, DC 20240, (703) 358-1714.

        SUPPLEMENTARY INFORMATION:
        Under the authority of the Migratory Bird Treaty Act (16 U.S.C. 703-712), the U.S. Fish and Wildlife Service regulates the hunting of migratory game birds. We update the migratory game bird hunting regulations, located at 50 CFR part 20, annually. Through these regulations, we establish the frameworks, or outside limits, for season lengths, bag limits, and areas for migratory game bird hunting. To help us in this process, we have administratively divided the nation into four Flyways (Atlantic, Mississippi, Central, and Pacific), each of which has a Flyway Council. Representatives from the Service, the Service's Migratory Bird Regulations Committee, and Flyway Council Consultants will meet on January 30, 2008, at 8:30 a.m. to identify preliminary issues concerning the 2008-09 migratory bird hunting regulations for discussion and review by the Flyway Councils at their March meetings.
        In accordance with Departmental policy regarding meetings of the Service Regulations Committee attended by any person outside the Department, these meetings are open to public observation.

          Paul R. Schmidt,
          Assistant Director, Migratory Birds, U.S. Fish and Wildlife Service.

       [FR Doc. E7-24588 Filed 12-18-07; 8:45 am]
      BILLING CODE 4310-55-P


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 73
        [MM Docket No. 04-232; FCC 04-145]
        Retention by Broadcasters of Program Recordings

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          In this document, the Commission proposes to require that television and radio stations retain program recordings for a period of time for purposes of enforcing the statutory prohibition against obscene, indecent, or profane broadcast programming, among other reasons.

          DATES:
          Comments due on or before August 27, 2004; reply comments are due on or before September 27, 2004.

          ADDRESSES:

          Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. For further filing information, see
            SUPPLEMENTARY INFORMATION.

          FOR FURTHER INFORMATION CONTACT:
          Ben Golant, 202-418-7111 or Ben.Golant@fcc.gov.

        SUPPLEMENTARY INFORMATION:

        This is a synopsis of the Notice of Proposed Rulemaking, FCC 04-145, adopted June 21, 2004 and released July 7, 2004. The full text of the Commission's NPRM is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257) at its headquarters, 445 12th Street, SW., Washington, DC 20554, or may be purchased from the Commission's copy contractor, Qualex International, (202) 863-2893, Portals II, Room CY-B402, 445 12th St., SW., Washington, DC 20554, or may be reviewed via Internet at http://www.fcc.gov/mb.
        Synopsis of the Further Notice of Proposed Rulemaking

        1. In this Notice of Proposed Rulemaking (“NPRM”), we propose to require that broadcasters retain recordings of their programming for some limited period of time (e.g., 60 or 90 days) in order to increase the effectiveness of the Commission's process for enforcing restrictions on obscene, indecent, and profane broadcast programming.
        2. It is a violation of federal law to broadcast obscene, indecent, or profane programming. Specifically, Title 18 of the United States Code, Section 1464, prohibits the utterance of “any obscene, indecent, or profane language by means of radio communication.” Congress has given the Federal Communications Commission the responsibility for administratively enforcing 18 U.S.C. 1464. In doing so, the Commission may, for example, revoke (or decline to renew) a station license or impose a monetary forfeiture for the broadcast of such prohibited material.
        3. The Commission's enforcement policy under Section 1464 has been shaped by a number of judicial and legislative decisions. In particular, because the Supreme Court has determined that obscene speech is not entitled to First Amendment protection, obscene speech cannot be broadcast at any time. Indecent speech is protected by the First Amendment and cannot be outlawed completely, but, pursuant to Commission regulations, implementing a subsequent statute and court decision, the airing of such programming is restricted to the hours of 10 p.m. to 6 a.m., when children are less likely to be in the audience. The courts have consistently upheld the Commission's authority to regulate indecent speech, albeit with certain limitations. In this NPRM, we seek comment on enhancing our enforcement processes through proposed program recording retention requirements for broadcast stations in order to improve the adjudication of complaints.

        4. The Commission's current procedures for the filing and consideration of complaints were articulated in its Indecency Guidelines Policy Statement. The Commission does not independently monitor broadcasts for obscene, indecent, or profane material. Its enforcement actions are based on documented complaints received from the public. Given the sensitive nature of these cases and the critical role of context in a determination, it is important that the Commission be afforded as full a record as possible to evaluate allegations of objectionable programming. In order for a complaint to be considered, our practice is that it must generally include: (1) A significant excerpt from the program or a full or partial tape or transcript of the program; (2) the date and time of the broadcast; and (3) the call sign of the station involved. Although a complainant is not required to provide a tape or transcript, he or she must provide sufficient information regarding the content at issue to place it in context. The amount of information provided need not be extensive.
        5. The staff reviews each complaint to determine whether the relevant material may violate the obscenity, indecency or profanity standards and, in the case of indecency and profanity, whether the material was broadcast outside the safe harbor hours. If there is sufficient information in the complaint that the facts, if true, suggest a violation may have occurred, the staff will commence an investigation by issuing a letter of inquiry (“LOI”) that, among other things, requires the licensee to produce a recording or transcript of the program, if it has one. Otherwise, the complaint is generally dismissed or denied. If, based on the complaint, the licensee's response to the LOI and other facts in the record, it appears that a violation has occurred, the staff or the Commission will take enforcement action, such as issuing a Notice of Apparent Liability (“NAL”) proposing a forfeiture or potentially an order to show cause to revoke the station's license.
        6. We seek comment on steps the Commission could take to improve our complaint process and better enforce our existing standards by requiring broadcasters to retain recordings of their broadcast for a limited period of time. Because the specifics and context of the broadcast are critical to the determination of whether material is obscene, indecent, or profane, the more information the Commission can have in its possession about a program when it concludes an investigation and decides whether or not to initiate an enforcement proceeding, the more informed a decision it can make. Many complainants are able to provide enough detail for us to determine that enforcement action is warranted, even if the licensee has no transcript or recording of the program to provide in response to an LOI. In other cases, however, the Commission may lack a sufficient record where the licensee is unable to provide a tape or transcript in response to an LOI.
        7. Accordingly, we propose to improve our indecency complaint process by requiring broadcasters to retain a recording of all material they air during the hours of 6 a.m. and 10 p.m., when children are likely to be in the audience, for a limited period of time. This approach would ensure that the Commission has a complete record before it in deciding whether to initiate enforcement proceedings after an investigation. We seek comment on this proposal, including the proper length of time a copy of programming should be retained by a licensee, such as 60 or 90 days. Our goal is to establish a retention period that is long enough to ensure that the recording will be available in response to an                                                              LOI, but not so long that it imposes unreasonable burdens. We also seek comment on whether the proposed record retention requirements should be crafted so that they can be useful to enforcement of other types of complaints based on program content. For example, the proposed record retention requirements may aid us in enforcing our children's television commercial limits and sponsorship identification requirements. We seek comment on whether there have been problems in enforcing those requirements that justify imposition of a retention requirement, as well as whether the benefits of this additional enforcement tool justify requiring broadcasters to record their programming 24 hours a day, rather than only 6 a.m. to 10 p.m., the hours when indecent programming is prohibited. We seek comment on how the proposed record retention requirement should apply to digital television and radio stations. Should the proposed rules apply to all digital streams, including programming offered on a subscription basis?
        8. We seek comment on whether the proposed requirements should affect our established broadcast complaint process. Currently, we generally require a complainant to submit a tape, transcript, or significant excerpt before we will consider a complaint so that we have some sense of whether the material broadcast may have violated the law before we commence an inquiry. We ask whether we should change this policy if we were to require records to be retained. For example, a complaint containing a general description of the relevant broadcast programming may be adequate to trigger Commission action because we could obtain the actual recording from the station. We seek comment on this matter as well as other possible revisions to our current complaint process.
        9. The proposed record retention requirements will affect the record-keeping practices of broadcast stations. We seek comment on the financial burden the proposals may impose. What are broadcasters' current practices in terms of recording programming and retaining copies of the recordings? What steps would a broadcast station have to take to comply with the proposed requirements? How much would it cost to keep programming for 60 days, 90 days? Does the development and increased use of digital recording and storage reduce the costs? We recognize that it may be more costly to retain high definition television content because of the equipment required to record such material. We propose that it would be permissible for such content to be recorded at a lower bit rate so that it is not as expensive to retain. We seek comment on this proposal. Are there any other means to reduce the financial costs of complying with the proposed requirements? We seek specific comment on the impact that retention rules may have on small broadcasters.
        10. We are mindful that we must be cautious in our enforcement of Section 1464 with respect to indecency and profanity because free speech rights are involved. We therefore seek comment on whether our proposals raise any First Amendment issues.
        11. We also seek comment on how the proposed record retention requirements may affect parties other than broadcast stations. For example, would the retention of third party commercial material, such as broadcast advertisements or infomercials, raise copyright or contractual issues? What other issues should we consider in this context? Although we seek comment on approaches for improving our enforcement process, we do not raise for comment in this proceeding our substantive standards for indecency or any other rules that may be implicated. Any comments beyond the scope of this NPRM will not be considered.
        12. Ex Parte Rules. This proceeding will be treated as a “permit-but-disclose” proceeding subject to the “permit-but-disclose” requirements under Section 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 section 1.1206(b).
        13. Comments and Reply Comments. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties must file comments on or before August 27, 2004, and reply comments on or before September 27, 2004. Comments may be filed using the Commission's Electronic Comment Filing System (“ECFS”) or by filing paper copies. Accessible formats (computer diskettes, large print, audio recording, and Braille) are available to persons with disabilities by contacting Brian Millin, of the Consumer & Governmental Affairs Bureau, at (202) 418-7426, TTY (202) 418-7365.

        14. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters 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 for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply.
        15. Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Best Copy and Printing, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at Suite CY-B402, 445 12th Street, Washington, DC 20554. 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 mail, Express Mail, and Priority Mail, should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
        16. The Regulatory Flexibility Act of 1980, as amended (“RFA”), requires that a regulatory flexibility analysis be prepared for notice and comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). By the issuance of this NPRM, we seek comment on the impact our suggested proposals would have on small business entities. The complete regulatory flexibility analysis is attached as Appendix A.
        17. This NPRM contains proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (“PRA”), Public Law 104-13. It will be submitted to the Office of Management and Budget (“OMB”) for review under the PRA. OMB, the general public and other Federal agencies are invited to comment on the proposed information collections contained in this proceeding. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

        18. Written comments on the proposed new and modified information collections must be submitted on or before 60 days after date of publication in the Federal Register. In addition to filing comments with the Secretary, a copy of any Paperwork Reduction Act comments on the information collection(s) contained herein should be submitted to Leslie Smith, Federal Communications Commission, Room 1-A804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to Leslie Smith@fcc.gov, and to Kristy L. LaLonde, OMB Desk Officer, Room 10234 NEOB, 725 17th Street, NW., Washington, DC 20503 via the Internet to Kristy L.LaLonde@omb.eop.gov or by fax to 202-395-5167. For more information concerning the information collection(s) contained in this document, contact Leslie Smith at 202-418-0217, or via the Internet at Leslie Smith@fcc.gov.

        19. This document is available in alternative formats (computer diskette, large print, audio record, and Braille). Persons with disabilities who need documents in these formats may contact Brian Millin at (202) 418-7426 (voice), (202) 418-7365 (TTY), or via email at bmillin@fcc.gov. For additional information on this proceeding, contact Ben Golant, ben.golant@fcc.gov, of the Media Bureau, Policy Division, (202) 418-7111.

        20. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”) the Commission has prepared this 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 the NPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM provided above. The Commission will send a copy of this entire NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”). In addition, the NPRM and the IRFA (or summaries thereof) will be published in the Federal Register.
        21. Need For, and Objectives of, the Proposed Rules. This rulemaking proceeding is initiated to obtain comments concerning the Commission's proposals to enhance the indecency enforcement process by requiring television and radio broadcast licensees to retain recordings of their programming for some limited period of time.
        22. Legal Basis. The authority for this proposed rulemaking is contained in sections 1, 2, 4(i), 303, and 307, of the Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 303, and 307.
        23. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply. 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. The RFA generally defines the term “small entity” as encompassing the terms “small business,” “small organization,” and “small governmental entity.” 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 Small Business Administration (“SBA”).
        24. Television Stations. The proposed rules and policies will apply to television broadcasting licensees, and potential licensees of television service. The Small Business Administration defines a television broadcasting station that has $12 million or less in annual receipts as a small business. Television broadcasting stations consist of establishments primarily engaged in broadcasting visual programs by television to the public, except cable and other pay television services. Included in this industry are commercial, religious, educational, and other television stations. Also included are establishments primarily engaged in television broadcasting and which produce taped television program material. Separate establishments primarily engaged in producing taped television program materials are classified under another SIC number. As of December 31, 2003, there were 1,733 full power television stations in the United States. There were also 605 Class A television stations and 2,129 low power television stations. Therefore, the rules we may adopt in this proceeding will likely affect nearly 4,500 television station licensees.
        25. Radio Stations. The proposed rules and policies potentially will apply to all AM and FM radio broadcasting licensees and potential licensees. The SBA defines a radio broadcasting station that has no more than $5 million in annual receipts as a small business. A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public. Included in this industry are commercial, religious, educational, and other radio stations. Radio broadcasting stations which primarily are engaged in radio broadcasting and which produce radio program materials are similarly included. However, radio stations which are separate establishments and are primarily engaged in producing radio program material are classified under another SIC number. As of December 31, 2003, official Commission records indicate that 11,011 radio stations were in operation, of which 4,794 were AM stations. Thus, the proposed rules will affect over 11,000 radio stations.
        26. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements. The proposed rules would impose additional reporting or recordkeeping requirements on existing television and radio stations. We seek comment on the possible cost burden these requirements would place on small entities. Also, we seek comment on whether a special approach toward any possible compliance burdens on small entities might be appropriate.
        27. Steps Taken to Minimize Significant Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (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. The Commission seeks comment on alternative timeframes for record retention in order to lessen the regulatory burden on broadcast television and radio stations. Specifically, we propose relatively short time frames in order to minimize the burden on broadcasters. We are also cognizant of the difficulties associated with recording high definition content, and for that reason propose to allow broadcasters to record programming at a lower bit rate. The Commission also seeks specific comments on the burden our proposals may have on small broadcasters. There may be unique circumstances these entities may face and we will consider appropriate action for small broadcasters at the time when a Report and Order is considered.
        28. Federal Rules Which Duplicate, Overlap, or Conflict With, the Commission's Proposals. None.

          Federal Communications Commission.
          Marlene H. Dortch,
          Secretary.

      [FR Doc. 04-17428 Filed 7-29-04; 8:45 am]
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        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 73
        [DA 00-831; MM Docket No. 99-282; RM-9710]
        Radio Broadcasting Services; Littlefield, AZ

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule; denial.

          SUMMARY:

          This document denies a petition for rule making filed by Mountain West Broadcasting proposing the allotment of FM Channel 265C to Littlefield, Arizona, as a first local aural transmission service, for failure to establish that locality is a bona fide community for allotment purposes. See 64 FR 51286, September 22, 1999. With this action, the proceeding is terminated.

          ADDRESSES:
          Federal Communications Commission, Washington, DC 20554.

          FOR FURTHER INFORMATION CONTACT:
          Nancy Joyner, Mass Media Bureau, (202) 418-2180.

        SUPPLEMENTARY INFORMATION:
        This is a synopsis of the Commission's Report and Order, MM Docket No. 99-282, adopted April 5, 2000, and released April 14, 2000 . The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center (Room CY-A257), 445 Twelfth Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, NW., Washington, D.C. 20036, (202) 857-3800.

          List of Subjects in 47 CFR Part 73
          Radio broadcasting.

          Federal Communications Commission.
          John A. Karousos,
          Chief, Allocations Branch, Policy and Rules Division, Mass Media Bureau.

      [FR Doc. 00-10756 Filed 5-1-00; 8:45 am]
      BILLING CODE 6712-01-P