How do I comment on this proposed AD? We invite you to submit any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under ADDRESSES. Include “AD Docket No. 2003-CE-47-AD” in the subject line of your comments. If you want us to acknowledge receipt of your mailed comments, send us a self-addressed, stamped postcard with the docket number written on it. We will date-stamp your postcard and mail it back to you.

Are there any specific portions of this proposed AD I should pay attention to? We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. If you contact us through a nonwritten communication and that contact relates to a substantive part of this proposed AD, we will summarize the contact and place the summary in the docket. We will consider all comments received by the closing date and may amend this proposed AD in light of those comments and contacts.

Has FAA taken any action to this point? Reports that the Goodrich TAWS8000 TAWS causes altitude errors in other instruments when both the TAWS and any other device are connected to the same baro set potentiometer caused us to issue AD 2003-13-08, Amendment 39-13208.

The unsafe condition was discovered during the installation of a TAWS8000 TAWS in a Cessna 500 series airplane. The TAWS8000 TAWS was connected to the baro set potentiometer output of a Honeywell (Sperry) BA-141 altimeter that was also connected to a Honeywell AZ-241 Air Data Computer. The altimeter showed that the aircraft was 60 feet higher than the actual altitude. This unsafe condition was confirmed with the laboratory test of a TAWS8000 TAWS installation.

What has happened since AD 2003-13-08 to initiate this proposed action? We omitted from AD 2003-13-08 a provision that prohibits reconfiguring an installed TAWS8000 TAWS after it passes the inspection unless it incorporates hardware “Mod C'.

Since we issued AD 2003-13-08, Goodrich Avionics System, Inc. has also developed a production improvement (Mod C) to eliminate the effect of loading on the baro set potentiometer. Goodrich has issued an alert service bulletin to implement this modification.

We received comments about the language in AD 2003-13-08. Owners/operators are restricted from installing any TAWS8000 TAWS (part number 805-18000-001 that incorporates hardware “Mod None”, “Mod A”, or “Mod B”). When the unit is modified to incorporate hardware “Mod C”, the unit will still have “Mod None”, “Mod A”, or “Mod B” marked on it. The intent of the AD was to allow for hardware modifications other than “Mod None”, “Mod A”, or “Mod B” to be installed.

What are the consequences if the condition is not corrected? AD 2003-13-08, as currently written, could cause confusion as to how to incorporate the actions necessary in correcting the unsafe condition.

Is there service information that applies to this subject? Goodrich Avionics Systems, Inc. has issued Service Memo SM #134, Revised July 9, 2003, and Alert Service Bulletin SB #A117, dated July 9, 2003.

What are the provisions of this service information? Goodrich Avionics Systems, Inc. Service Memo SM #134, Revised July 9, 2003, introduces the release of product improvement hardware “Mod C” and restates the following information from the original issue of Service Memo SM #134:

—The TAWS8000 should not be connected to a baro set potentiometer if that potentiometer is also connected to any other device; and

—In existing installations where both the TAWS and any other device are connected to the same baro set potentiometer, the TAWS8000 should be removed from the aircraft.

Goodrich Avionics Systems, Inc. Alert Service Bulletin SB #A117, dated July 9, 2003, specifies upgrading all TAWS8000 units to include hardware “Mod C”.

What has FAA decided? The FAA has reviewed all available information, including the service information referenced above; and determined that:

—The unsafe condition referenced in this document exists or could develop on type design airplanes equipped with a Goodrich TAWS8000 TAWS, P/N 805-18000-001 that does not incorporate hardware “Mod C”;

—Any airplane with one of these TAWS8000 TAWS units, P/N 805-18000-001 should have the actions specified in the above service information incorporated; and

—AD action should be taken in order to correct this unsafe condition.

What would this proposed AD require? This proposed AD would supersede AD 2003-13-08 with a new AD that proposes to require you to inspect the TAWS installation and modify any TAWS where both the TAWS and any other device are connected to the same baro set potentiometer. This proposed AD would also prohibit future installation or reconfiguration of any TAWS8000 TAWS that does not incorporate hardware “Mod C”.

How does the revision to 14 CFR part 39 affect this proposed AD? On July 10, 2002, we published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs FAA's AD system. This regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.

How many airplanes would this proposed AD impact? We estimate that this proposed AD affects 80 airplanes in the U.S. registry.

What would be the cost impact of this proposed AD on owners/operators of the affected airplanes? We estimate the following costs to accomplish this proposed inspection:

We estimate the following costs to accomplish any necessary modifications that would be required based on the results of this proposed inspection. We have no way of determining the number of airplanes that may need the modification:

Would this proposed AD impact various entities? We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

Would this proposed AD involve a significant rule or regulatory action? For the reasons discussed above, I certify that this proposed AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a summary of the costs to comply with this proposed AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 2003-CE-47-AD” in your request.

Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-178-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-178-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

On August 13, 2001, the FAA issued AD 2001-17-04, amendment 39-12395 (66 FR 43678, August 21, 2001). That AD was superseded by AD 2002-08-21, amendment 12733 (67 FR 21572, May 1, 2002).

AD 2002-08-21 applies to all EMBRAER Model EMB-135 and -145 series airplanes. That AD requires repetitive inspections to detect discrepancies of both vertical-to-horizontal stabilizer bonding jumpers and the connecting support structure; and corrective action, if necessary. That action was prompted by issuance of mandatory continuing airworthiness information by the Departmento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil. The requirements of AD 2002-08-21 are intended to prevent damaged or severed bonding jumpers, which, in the event of a lightning strike, could result in severed elevator control cables and consequent reduced elevator control capability and reduced controllability of the airplane.

The preamble to AD 2002-08-21 explains that we consider those requirements “interim action” until we identify final action. We now have determined that further rulemaking is indeed necessary; this proposed AD follows from that determination.

AD 2002-08-21 cites the original issue of EMBRAER Service Bulletin 145-55-0028, dated April 10, 2002, as the appropriate source of service information for accomplishment of the repetitive inspections of paragraph (f) of AD 2002-08-21. Change 02 of the service bulletin, dated February 27, 2003, includes corrections of certain in-production effectivity and part number information, but doesn't change the procedures. The DAC classified this service bulletin as mandatory and issued Brazilian airworthiness directive 2001-06-03R2, dated June 24, 2002, to ensure the continued airworthiness of these airplanes in Brazil.

These airplane models are manufactured in Brazil and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DAC has kept us informed of the situation described above. We have examined the findings of the DAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would supersede AD 2002-08-21 to continue to require repetitive inspections to detect discrepancies of both vertical-to-horizontal stabilizer bonding jumpers and the connecting support structure; and corrective action if necessary. The proposed AD would also require modification of the bonding jumpers, including the installation of a protective cover to the elevator control cables, which would terminate the requirements of the existing AD. The proposed AD would remove the existing reporting requirement. The actions would be required to be accomplished in accordance with EMBRAER Service Bulletins 145-55-0025 and 145-55-0028, described previously.

We have changed all references to a “detailed visual inspection” in the existing AD to “detailed inspection” in this proposed AD.

We have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.

There are approximately 360 airplanes of U.S. registry that would be affected by this proposed AD.

The actions that are currently required by AD 2002-08-21 take approximately 2 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be $46,800, or $130 per airplane, per inspection cycle.

The terminating action proposed in this AD action would take approximately 6 work hours per airplane, at an average labor rate of $65 per work hour. Required parts would cost approximately $206 per airplane. Based on these figures, the cost impact of the proposed requirements of this AD on U.S. operators is estimated to be $214,560, or $596 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the current or proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Comments Invited

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 200-NM-93-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2003-NM-93-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received a report of a chafed hole in the fire extinguishing system tube of the aft cargo compartment on a Boeing Model 747-400 series airplane. During production, the tube was installed incorrectly with the bend down and clamps upside down, which can cause the tube to chafe against a stiffener on the air conditioning duct located below the tube. If the discharge tube has a chafed hole, there may not be a sufficient amount of fire extinguishing agent to extinguish a fire in the aft cargo compartment. This condition, if not corrected, could result in an uncontained fire in the aft cargo compartment.

The FAA has reviewed and approved Boeing Service Bulletin 747-26A2270, Revision 1, dated January 16, 2003, which describes the following procedures:

• Performing a detailed inspection of the fire extinguishing system tube and clamps for correct installation, either using an inspection hole and boroscope or with the floor panel removed;

• Performing a repetitive pressure test of the fire extinguishing system tube for leakage; and

• Performing corrective actions, if necessary.

The corrective actions include the following procedures:

• Performing a detailed inspection of the fire extinguishing system tube for chafing/damage;

• Replacing the fire extinguishing system tube with a new tube;

• Repairing the fire extinguishing system tube; and

• Installing the new or repaired fire extinguishing system tube.

Accomplishment of the Part 1—Option 1 or 2 inspections or the Part 2 inspection and repair/replacement in the service bulletin constitutes terminating action for the repetitive pressure test. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously.

There are approximately 416 airplanes of the affected design in the worldwide fleet. The FAA estimates that 44 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 1 work hour per airplane to accomplish the proposed inspection or pressure test, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $2,860, or $65 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Comments Invited

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-60-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2003-NM-60-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received reports indicating that the repetitive x-ray inspections required by AD 85-01-02 R1, amendment 39-5241 (51 FR 6101, February 20, 1986), do not adequately detect fatigue cracks in all layers of a repaired or modified aft pressure bulkhead on certain Model DC-9 airplanes. Fatigue cracks in the corners and upper center of the door cutout of the aft pressure bulkhead, if not detected and corrected, could

The FAA normally would issue an AD to supersede AD 85-01-02 R1 to continue to require the existing requirements, until the new proposed actions that address the identified unsafe condition are done. This involves restating the existing requirements of AD 85-01-02 R1 in the new AD. Because of the complexity of the requirements of AD 85-01-02 R1, we previously issued AD 2002-07-06 as a “stand—alone” AD that did not supersede AD 85-01-02 R1. We included a paragraph in AD 2002-07-06 that terminates the repetitive inspection requirements of AD 85-01-02 R1.

AD 2002-07-06, amendment 39-12700 (67 FR 16987, April 9, 2002), is applicable to certain McDonnell Douglas Model DC-9-10, -20, -30, -40, and -50 series airplanes, and C-9 airplanes. That AD requires repetitive visual and x-ray inspections to detect cracks of the upper and lower corners and upper center of the door cutout of the aft pressure bulkhead; corrective actions, if necessary; and follow-on actions. The actions specified by that AD are intended to detect and correct fatigue cracks in the corners and upper center of the door cutout of the aft pressure bulkhead which could result in rapid decompression of the fuselage and consequent reduced structural integrity of the airplane.

The FAA also has previously issued AD 96-10-11, amendment 39-9618 (61 FR 24675, May 16, 1996), applicable to McDonnell Douglas Model DC-9 and DC-9-80 series airplanes, Model MD-88 airplanes, and C-9 (military) series airplanes. That AD requires certain inspections and structural modifications. Accomplishment of the modification (reference Boeing (McDonnell Douglas) Service Bulletin DC9-53-166) required by paragraph (d) or (e) of AD 96-10-11 (which references “DC-9/MD-80 Aging Aircraft Service Action Requirements Document” (SARD), McDonnell Douglas Report No. MDC K1572, Revision A, dated June 1, 1990, or Revision B, dated January 15, 1993, as the appropriate source of service information for accomplishing the modification) terminates the repetitive inspection requirements of paragraphs (b) and (c) of this proposed AD.

Since issuance of AD 2002-07-06, the FAA was advised that 13 Model DC-9-15, DC-9-31, and DC-9-32 airplanes (manufacturer's fuselage numbers 0030, 0094, 0220, 0221, 0863, 0900, 0901, 0913, 0914, 0918, 0923, 0926, and 0930) were excluded inadvertently from the effectivity of paragraph 1.A. of McDonnell Douglas Service Bulletin DC9-53-137, Revision 07, dated February 6, 2001, which was referenced in the applicability of that AD as the appropriate source of service information for determining the affected airplanes. Therefore, we have determined that the additional airplanes are also subject to the same unsafe condition addressed in AD 2002-07-06. This proposed AD follows from that determination.

The FAA has reviewed and approved McDonnell Douglas Service Bulletin DC9-53-137, Revision 09, dated January 30, 2003, which describes procedures that are essentially the same as those procedures included in McDonnell Douglas Service Bulletin DC9-53-137, Revision 07, dated February 6, 2001, as cited in AD 2002-07-06. This revision also adds 13 additional airplane fuselage numbers to the effectivity. The airplanes were inadvertently omitted from Revision 07 of the service bulletin. No more work is necessary on airplanes changed as shown in Revision 07 of the service bulletin.

The FAA also has reviewed and approved McDonnell Douglas DC-9 Service Bulletin 53-165, Revision 3, dated May 3, 1989, which describes procedures for modification of the ventral aft pressure bulkhead structure (including cutting and removing flange of the upper; cutting and removing the lower flange of formers and replacing it with a clip; installing pads at the outboard end clips of formers; and replacing clearance fit bolts at the upper corner doubler angles with interference fit Hi-Lok pins and monel rivets).

In addition, the FAA has reviewed and approved McDonnell Douglas DC-9 Service Bulletin 53-157, Revision 1, dated January 7, 1985, which describes, for certain airplanes, procedures for modification of the ventral aft pressure bulkhead (including encapsulating the head and nut of the attachments and applying a fillet seal of sealant around parts located on the forward and aft sides of the aft pressure bulkhead; and applying a soft film corrosion inhibiting compound to the forward and aft sides of the aft pressure bulkhead). For certain airplanes, these procedures must be done in conjunction with those in McDonnell Douglas DC-9 Service Bulletin 53-165.

Accomplishment of the actions specified in the service bulletins is intended to adequately address the identified unsafe condition.

Accomplishment of the actions specified in AD 2002-07-06 is acceptable for compliance with the requirements of this proposed AD.

The FAA finds that if, after the effective date of this AD, the airplane is operated without cabin pressurization and a placard that prohibits operation with cabin pressurization is installed in the cockpit in full view of the pilot, the inspections and modification specified in the service bulletins described previously are not necessary.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletins described previously, except as discussed below.

Since this AD expands the applicability of AD 2002-07-06, the FAA has considered a number of factors in determining whether to issue a new AD or to supersede the “old” AD. The FAA has considered the entire fleet size that would be affected by superseding AD 2002-07-06 and the consequent workload associated with revising maintenance record entries. In light of this, the FAA has determined that a less burdensome approach is to issue a separate AD applicable only to the additional airplanes. This proposed AD would not supersede AD 2002-07-06 or AD 85-01-02 R1; airplanes listed in the applicability of AD 2002-07-06 and AD 85-01-02 R1 are required to continue to comply with the requirements of those ADs. This proposed AD is a separate AD action, and is applicable only to the McDonnell Douglas Model DC-9-15, DC-9-31, and DC-9-32 airplanes, manufacturer's fuselage numbers 0030, 0094, 0220, 0221, 0863, 0900, 0901, 0913, 0914, 0918, 0923, 0926, and 0930. Once the final rule has been issued and it becomes effective, we plan to rescind AD 85-01-02 R1.

McDonnell Douglas DC-9 Service Bulletin 53-165, Revision 3, dated May 3, 1989; and McDonnell Douglas Service Bulletin DC9-53-137, Revision 09, dated January 30, 2003; recommend compliance times with only a “threshold” ( i.e. , before the airplane accumulates 15,000 total landings, within 15,000 landings after the bulkhead modification, and at the earliest practical maintenance period feasible on airplanes that have accumulated more than 15,000 landings, respectively). These service bulletins do not provide a “grace period” for airplanes that have already reached (or will soon reach) the 15,000-landing threshold, which would result in some airplanes being in immediate non-compliance with the rule upon reaching the stated number of landings. Therefore, the compliance times specified in paragraphs (a), (d)(1), and (d)(2) of this proposed AD include a grace period of “within 4,000 landings after the effective date of this AD.” The FAA finds such a grace period for completing the required actions to be warranted, in that it represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety.

Operators should note that, although the Accomplishment Instructions of McDonnell Douglas Service Bulletin DC9-53-137, Revision 09, dated January 30, 2003, describe procedures for reporting results of inspections, this proposed AD would not require those actions. The FAA does not need this information from operators.

There are 13 airplanes of the affected design in the worldwide fleet. The FAA estimates that seven airplanes of U.S. registry would be affected by this proposed AD.

It would take approximately 5 work hours per airplane to accomplish the proposed inspections, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $2,275 or $325 per airplane.

For certain airplanes, it would take approximately between 21 and 26 work hours per airplane depending on the airplane configuration to accomplish the proposed modification specified in McDonnell Douglas DC-9 Service Bulletin 53-165, Revision 3, dated May 3, 1989, at an average labor rate of $65 per work hour. Required parts would cost approximately between $3,470 and $11,831 per airplane, depending on the airplane configuration. Based on these figures, the cost impact of this proposed modification on U.S. operators is estimated to be between $4,835, or $13,521 per airplane.

For certain airplanes, it would take approximately 9 work hours per airplane to accomplish the proposed modification specified in McDonnell Douglas DC-9 Service Bulletin 53-157, Revision 1, dated January 7, 1985, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of this proposed modification on U.S. operators is estimated to be $585 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Comments Invited

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-301-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-301-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD), applicable to certain Airbus Model A319 and A320 series airplanes, was published as a notice of proposed rulemaking (NPRM) in the Federal Register on January 3, 2003 (68 FR 317). That NPRM would have required an inspection of the clearance space between the fuel quantity indication (FQI) probes located in the center fuel tank and the adjacent structure; an inspection of the position of the support bracket for each probe; an inspection of the part number for each support bracket; and corrective action if necessary. That NPRM was prompted by issuance of mandatory continuing airworthiness information by a civil airworthiness authority. Incorrect installation of the support brackets for the FQI probes, if not corrected, could result in loss of FQI of the center fuel tank, and electrical arcing between the FQI probes and the adjacent structure in the event that the airplane is struck by lightning. Such arcing could create a potential ignition source within the center fuel tank and an increased risk of a fuel tank explosion and fire.

Since the issuance of Airbus Service Bulletin A320-28A1096, Revision 01, dated July 4, 2001, which was cited in the original NPRM as the appropriate source of service information for the proposed actions, Airbus has issued Service Bulletin A320-28A1096, Revision 03, dated August 27, 2002. Revision 03 of the service bulletin adds one airplane to the effectivity listing of the service bulletin and makes minor editorial changes. (Also after the issuance of Revision 01 of the service bulletin, Airbus issued Service Bulletin A320-28A1096, Revision 02, dated October 16, 2001, to add to the repair procedure instructions for applying interface sealant and to add a check of electrical bonding, and to make certain other nonsubstantive changes.)

The FAA has given due consideration to the comments received in response to the NPRM.

One commenter supports the proposed AD, and one commenter states that it has no comment.

One commenter requests that we extend the compliance time from 4,000 flight hours to 5,000 flight hours after the effective date of the AD. The commenter's rationale is that its C-check maintenance interval averages 4,863 flight hours.

We do not concur with the commenter's request. We note that the commenter operates 5 of the 24 U.S.-registered airplanes affected by this supplemental NPRM. In developing an appropriate compliance time for this AD, we considered the recommendation of the Direction Ge ne rale de l'Aviation Civile (DGAC) (which is the airworthiness authority for France), the degree of urgency associated with the subject unsafe condition, and the practical aspect of accomplishing the necessary actions within an interval that parallels normal scheduled maintenance for the majority of affected operators. In light of all of these factors, we have determined that a 4,000-flight-hour compliance time represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety, while allowing the majority of affected operators to comply at a scheduled maintenance interval. We have made no change to this supplemental NPRM in this regard; however, under the provisions of paragraph (d) of this proposal, we may approve requests for adjustments of the compliance time if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in Airbus Service Bulletin A320-28A1096, Revision 03.

Since the changes described previously expand the scope of the originally proposed rule, the FAA has determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's AD system. This regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance (AMOCs). Because we have now included this material in part 39, only the office authorized to approve AMOCs is identified in each individual AD. Therefore, in this supplemental NPRM, Note 1 and paragraph (d) of the original NPRM have been removed, and paragraph (c) of the original NPRM has been revised and is included as paragraph (d) of this supplemental NPRM.

We have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.

There are approximately 25 airplanes of U.S. registry that would be affected by this proposed AD. It would take approximately 1 work hour per airplane to accomplish the proposed inspection, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $1,625, or $65 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

This is a synopsis of the Further Notice of Proposed Rulemaking portion of the Commission's Report and Order and Further Notice of Proposed Rulemaking (“Further NPRM”), FCC 03-273, adopted and released November 4, 2003. The full text of the Commission's Further 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.

1. Although we believe that our adoption of a flag-based redistribution control system for digital broadcast television will further the digital transition and ensure the continued flow of high value content to broadcast outlets, further comment is needed on several issues. As an initial matter, we seek comment on whether cable operators that retransmit DTV broadcasts may encrypt the digital basic tier in order to convey the presence of the ATSC flag through their conditional access system. Section 76.630 of the Commission's rules generally prohibits cable operators from “scrambl[ing] or encrypt[ing] signals carried on the basic service tier” without distinguishing between analog and digital service. NCTA has suggested that allowing cable operators to encrypt the digital basic tier and “virtually” convey the presence of the flag will facilitate the offering of future home networking services. We seek comment on whether cable operators should be allowed to encrypt in this manner.

2. In response to our Notice of Proposed Rulemaking, EFF questioned the impact of a flag-based regime on innovations in software demodulators and other DTV open source software applications. The Commission has actively promoted the development of software defined radio and other software demodulators as important innovations in the digital age. We seek further comment on the interplay between a flag redistribution control system and the development of open source software applications, including software demodulators, for digital broadcast television.

3. This Further Notice of Proposed Rulemaking also seeks comment on whether standards and procedures should be adopted for the approval of new content protection and recording technologies to be used with device outputs on Demodulator Products. If so, we seek comment on the various types of content protection technologies that should be considered as a part of this process, including but not limited to digital rights management, wireless and encryption-based technologies. We recognize that similar issues have been raised with respect to digital cable ready DTV receivers in the Second Further Notice of Proposed Rulemaking in the Commission's ongoing “Plug and Play” proceeding. We seek comment on whether a unified regime should be employed in both instances.

4. With respect to the particular standards and procedures to be employed, we seek comment on whether objective criteria should be used to evaluate new content protection and recording technologies and, if so, what specific criteria should be used. For example, in our recent Second Report and Order and Second Further Notice of Proposed Rulemaking relating to digital cable compatibility, Microsoft Corporation and Hewlett Packard Corporation submitted a detailed proposal suggesting functional requirements that could be used to evaluate digital rights management technologies for use with digital cable ready products. We seek comment on this proposal in the ATSC flag context, as well as on other proposals submitted in this proceeding relying on objective criteria, and any new proposals that commenters may submit to the Commission.

5. We also seek comment on the appropriate scope of redistribution that should be prevented. In general, we believe that a flag based system should prevent indiscriminate redistribution of digital broadcast content, however, we do not wish to foreclose use of the Internet to send digital broadcast content where robust security can adequately protect the content and the redistribution is tailored in nature. We see comment on the usefulness of defining a personal digital network environment (“PDNE”) within which consumers could freely redistribute digital broadcast television content. If so, we seek comment on the various permutations of a PDNE that were proposed in the BPDG Final Report and whether any modifications are needed to maintain consumer's home viewing expectations. We also seek comment on possible new formulations of a PDNE.

6. We also seek comment on whether content owners are the appropriate entities to make initial approval determinations, or whether another entity should have decision-making authority. In particular, we seek comment on whether the Commission, a qualified third party, or an independent entity representing various industry and consumer interests should make approval and revocation determinations.

7. As to the issue of how approved content protection and recording technologies may be revoked should their security be compromised, we seek comment on the appropriate standard for revocation. Specifically, we seek comment on whether revocation is appropriate where a content protection or recording technology is perceived to be insecure, or whether the appropriate standard is where security has been compromised in a significant, widespread manner. Once a content protection or recording technology has been revoked, we seek comment on the appropriate mechanism by which revocation should be effectuated. For example, should revoked content protection or recording technologies be eliminated on a going-forward basis, while preserving their functionality for existing devices? We also seek comment on whether there are technological or other means of revoking content protection or recording technologies while preserving the functionality of consumer electronics devices.

8. Authority. This Further NPRM is issued pursuant to authority contained in sections 1, 2, 4(i) and (j), 303, 307, 309(j), 336, 337, 396(k), 403, 601, 614(b) and 624a of the Communications Act of 1934, as amended.

9. Ex Parte Rules—Non-Restricted Proceeding. This is a non-restricted notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided that they are disclosed as provided in the Commission's rules. See generally 47 CFR 1.1202, 1.1203, and 1.1206(a).

10. Accessibility Information. Accessible formats of this Further NPRM (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, or at Brian.Millin@fcc.gov.

11. Comment Information. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before January 14, 2004, and reply comments on or before February 13, 2004. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

12. 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. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. 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. 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 appear in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Natek, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class 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.

13. Regulatory Flexibility Act. As required by the Regulatory Flexibility Act, the Commission has prepared an Initial Regulatory Flexibility Analysis (“IRFA”) of the possible significant economic impact on a substantial number of small entities of the proposals addressed in this Further NPRM. The IRFA is set forth below. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines for comments on the Further NPRM, and they should have a separate and distinct heading designating them as responses to the IRFA.

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

15. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”) the Commission has prepared this present Initial Regulatory Flexibility Analysis (“IRFA”) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the Further Notice of Proposed Rulemaking portion of this item. 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 Further Notice of Proposed Rulemaking portion of this item provided in paragraph 69 of the item. The Commission will send a copy of this entire Report and Order and Further Notice of Proposed Rulemaking (“Report and Order and Further NPRM”), including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”). In addition, the Further Notice of Proposed Rulemaking portion of this item and the IRFA (or summaries thereof) will be published in the Federal Register .

16. Need for, and Objectives of, the Proposed Rules. Content providers have suggested that they should have the ability to make determinations about which new content protection and recording technologies may be used in connection with demodulator products under an ATSC flag-based redistribution control system. Commenters have indicated that content providers should not be the sole arbiters of such decisions. However, the record currently before the Commission is insufficient on this matter. In order to ensure the connectivity and interoperability of Demodulator Products and peripheral devices, we are initiating the Further NPRM to seek comment on the process and criteria by which new content protection and recording technologies can be evaluated and approved for use in this context. The Further NPRM also seeks comment on whether cable operators should be allowed to encrypt the digital basic tier in order to be able to give effect to the ATSC flag through cable operators' conditional access system. The Further NPRM also seeks comment on the interplay between an ATSC flag system and open source software for DTV applications, such as software defined radio.

17. Legal Basis. The authority for this proposed rulemaking is contained in sections 1, 2, 4(i) and (j), 303, 307, 309(j), 336, 337, 396(k), 403, 601, 614(b) and 624a of the Communications Act of 1934, 47 U.S.C 151, 152, 154(i) and (j), 303, 307, 309(j), 336, 337, 396(k), 403, 521, 534(b) and 544a.

18. 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”).

19. Television Broadcasting. The Small Business Administration defines a television broadcasting station that has no more than $12 million in annual receipts as a small business. Business concerns included in this industry are those “primarily engaged in broadcasting images together with sound.” According to Commission staff review of the BIA Publications, Inc. Master Access Television Analyzer Database as of May 16, 2003, about 814 of the 1,220 commercial television stations in the United States have revenues of $12 million or less. We note, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include aggregate revenues from affiliated companies. There are also 2,127 low power television stations (LPTV). Given the nature of this service, we will presume that all LPTV licensees qualify as small entities under the SBA definition.

20. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. Also as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities and our estimates of small businesses to which they apply may be over-inclusive to this extent.

21. Cable and Other Program Distribution. The SBA has developed a small business size standard for cable and other program distribution services, which includes all such companies generating $12.5 million or less in revenue annually. This category includes, among others, cable operators, direct broadcast satellite (“DBS”) services, home satellite dish (“HSD”) services, multipoint distribution services (“MDS”), multichannel multipoint distribution service (“MMDS”), Instructional Television Fixed Service (“ITFS”), local multipoint distribution service (“LMDS”), satellite master antenna television (“SMATV”) systems, and open video systems (“OVS”). According to the Census Bureau data, there are 1,311 total cable and other pay television service firms that operate throughout the year of which 1,180 have less than $10 million in revenue. We address below each service individually to provide a more precise estimate of small entities.

22. Cable Operators. The Commission has developed, with SBA's approval, our own definition of a small cable system operator for the purposes of rate regulation. Under the Commission's rules, a “small cable company” is one serving fewer than 400,000 subscribers nationwide. We last estimated that there were 1,439 cable operators that qualified as small cable companies. Since then, some of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. Consequently, we estimate that there are fewer than 1,439 small entity cable system operators that may be affected by the decisions and rules proposed in this Further NPRM.

23. The Communications Act, as amended, also contains a size standard for a small cable system operator, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1% of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that there are 68,500,000 subscribers in the United States. Therefore, an operator serving fewer than 685,000 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all of its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that the number of cable operators serving 685,000 subscribers or less totals approximately 1,450. Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

24. Direct Broadcast Satellite (“DBS”) Service. Because DBS provides subscription services, DBS falls within the SBA-recognized definition of Cable and Other Program Distribution Services. This definition provides that a small entity is one with $12.5 million or less in annual receipts. There are four licensees of DBS services under part 100 of the Commission's rules. Three of those licensees are currently operational. Two of the licensees that are operational have annual revenues that may be in excess of the threshold for a small business. The Commission, however, does not collect annual revenue data for DBS and, therefore, is unable to ascertain the number of small DBS licensees that could be impacted by these proposed rules. DBS service requires a great investment of capital for operation, and we acknowledge, despite the absence of specific data on this point, that there are entrants in this field that may not yet have generated $12.5 million in annual receipts, and therefore may be categorized as a small business, if independently owned and operated.

25. Home Satellite Dish (“HSD”) Service. Because HSD provides subscription services, HSD falls within the SBA-recognized definition of Cable and Other Program Distribution Services. This definition provides that a small entity is one with $12.5 million or less in annual receipts. The market for HSD service is difficult to quantify. Indeed, the service itself bears little resemblance to other MVPDs. HSD owners have access to more than 265 channels of programming placed on C-band satellites by programmers for receipt and distribution by MVPDs, of which 115 channels are scrambled and approximately 150 are unscrambled. HSD owners can watch unscrambled channels without paying a subscription fee. To receive scrambled channels, however, an HSD owner must purchase an integrated receiver-decoder from an equipment dealer and pay a subscription fee to an HSD programming package. Thus, HSD users include: (1) Viewers who subscribe to a packaged programming service, which affords them access to most of the same programming provided to subscribers of other MVPDs; (2) viewers who receive only non-subscription programming; and (3) viewers who receive satellite programming services illegally without subscribing. Because scrambled packages of programming are most specifically intended for retail consumers, these are the services most relevant to this discussion.

26. Multipoint Distribution Service (“MDS”), Multichannel Multipoint Distribution Service (“MMDS”) Instructional Television Fixed Service (“ITFS”) and Local Multipoint Distribution Service (“LMDS”). MMDS systems, often referred to as “wireless cable,” transmit video programming to subscribers using the microwave frequencies of the MDS and ITFS. LMDS is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications.

27. In connection with the 1996 MDS auction, the Commission defined small businesses as entities that had annual average gross revenues of less than $40 million in the previous three calendar years. This definition of a small entity in the context of MDS auctions has been approved by the SBA. The MDS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (“BTAs”). Of the 67 auction winners, 61 met the definition of a small business. MDS also includes licensees of stations authorized prior to the auction. As noted, the SBA has developed a definition of small entities for pay television services, which includes all such companies generating $12.5 million or less in annual receipts. This definition includes multipoint distribution services, and thus applies to MDS licensees and wireless cable operators that did not participate in the MDS auction. Information available to us indicates that there are approximately 850 of these licensees and operators that do not generate revenue in excess of $12.5 million annually. Therefore, for purposes of the IRFA, we find there are approximately 850 small MDS providers as defined by the SBA and the Commission's auction rules.

28. The SBA definition of small entities for Cable and Other Program Distribution Services, which includes such companies generating $12.5 million in annual receipts, seems reasonably applicable to ITFS. There are presently 2,032 ITFS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in the definition of a small business. However, we do not collect annual revenue data for ITFS licensees, and are not able to ascertain how many of the 100 non-educational licensees would be categorized as small under the SBA definition. Thus, we tentatively conclude that at least 1,932 licensees are small businesses.

29. Additionally, the auction of the 1,030 LMDS licenses began on February 18, 1998, and closed on March 25, 1998. The Commission defined “small entity” for LMDS licenses as an entity that has average gross revenues of less than $40 million in the three previous calendar years. An additional classification for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding calendar years. These regulations defining “small entity” in the context of LMDS auctions have been approved by the SBA. There were 93 winning bidders that qualified as small entities in the LMDS auctions. A total of 93 small and very small business bidders won approximately 277 A Block licenses and 387 B Block licenses. On March 27, 1999, the Commission re-auctioned 161 licenses; there were 40 winning bidders. Based on this information, we conclude that the number of small LMDS licenses will include the 93 winning bidders in the first auction and the 40 winning bidders in the re-auction, for a total of 133 small entity LMDS providers as defined by the SBA and the Commission's auction rules.

30. In sum, there are approximately a total of 2,000 MDS/MMDS/LMDS stations currently licensed. Of the approximate total of 2,000 stations, we estimate that there are 1,595 MDS/MMDS/LMDS providers that are small businesses as deemed by the SBA and the Commission's auction rules.

31. Satellite Master Antenna Television (“SMATV”) Systems. The SBA definition of small entities for Cable and Other Program Distribution Services includes SMATV services and, thus, small entities are defined as all such companies generating $12.5 million or less in annual receipts. Industry sources estimate that approximately 5,200 SMATV operators were providing service as of December 1995. Other estimates indicate that SMATV operators serve approximately 1.5 million residential subscribers as of July 2001. The best available estimates indicate that the largest SMATV operators serve between 15,000 and 55,000 subscribers each. Most SMATV operators serve approximately 3,000-4,000 customers. Because these operators are not rate regulated, they are not required to file financial data with the Commission. Furthermore, we are not aware of any privately published financial information regarding these operators. Based on the estimated number of operators and the estimated number of units served by the largest ten SMATVs, we believe that a substantial number of SMATV operators qualify as small entities.

32. Open Video Systems (“OVS”). Because OVS operators provide subscription services, OVS falls within the SBA-recognized definition of Cable and Other Program Distribution Services. This definition provides that a small entity is one with $12.5 million or less in annual receipts. The Commission has certified 25 OVS operators with some now providing service. Affiliates of Residential Communications Network, Inc. (“RCN”) received approval to operate OVS systems in New York City, Boston, Washington, D.C. and other areas. RCN has sufficient revenues to assure us that they do not qualify as small business entities. Little financial information is available for the other entities authorized to provide OVS that are not yet operational. Given that other entities have been authorized to provide OVS service but have not yet begun to generate revenues, we conclude that at least some of the OVS operators qualify as small entities.

33. Electronics Equipment Manufacturers. Rules adopted in this proceeding could apply to manufacturers of DTV receiving equipment and other types of consumer electronics equipment. The SBA has developed definitions of small entity for manufacturers of audio and video equipment as well as radio and television broadcasting and wireless communications equipment. These categories both include all such companies employing 750 or fewer employees. The Commission has not developed a definition of small entities applicable to manufacturers of electronic equipment used by consumers, as compared to industrial use by television licensees and related businesses. Therefore, we will utilize the SBA definitions applicable to manufacturers of audio and visual equipment and radio and television broadcasting and wireless communications equipment, since these are the two closest NAICS Codes applicable to the consumer electronics equipment manufacturing industry. However, these NAICS categories are broad and specific figures are not available as to how many of these establishments manufacture consumer equipment. According to the SBA's regulations, an audio and visual equipment manufacturer must have 750 or fewer employees in order to qualify as a small business concern. Census Bureau data indicates that there are 554 U.S. establishments that manufacture audio and visual equipment, and that 542 of these establishments have fewer than 500 employees and would be classified as small entities. The remaining 12 establishments have 500 or more employees; however, we are unable to determine how many of those have fewer than 750 employees and therefore, also qualify as small entities under the SBA definition. Under the SBA's regulations, a radio and television broadcasting and wireless communications equipment manufacturer must also have 750 or fewer employees in order to qualify as a small business concern. Census Bureau data indicates that there are 1,215 U.S. establishments that manufacture radio and television broadcasting and wireless communications equipment, and that 1,150 of these establishments have fewer than 500 employees and would be classified as small entities. The remaining 65 establishments have 500 or more employees; however, we are unable to determine how many of those have fewer than 750 employees and therefore, also qualify as small entities under the SBA definition. We therefore conclude that there are no more than 542 small manufacturers of audio and visual electronics equipment and no more than 1,150 small manufacturers of radio and television broadcasting and wireless communications equipment for consumer/household use.

34. Computer Manufacturers. The Commission has not developed a definition of small entities applicable to computer manufacturers. Therefore, we will utilize the SBA definition of electronic computers manufacturing. According to SBA regulations, a computer manufacturer must have 1,000 or fewer employees in order to qualify as a small entity. Census Bureau data indicates that there are 563 firms that manufacture electronic computers and of those, 544 have fewer than 1,000 employees and qualify as small entities. The remaining 19 firms have 1,000 or more employees. We conclude that there are approximately 544 small computer manufacturers.

35. Description of Projected Reporting, Recordkeeping and other Compliance Requirements. At this time, we do not expect that the proposed rules would impose any additional reporting or recordkeeping requirements. However, compliance with the rules, if they are adopted, may require consumer electronics manufacturers to seek approval for content protection technologies and recording methods to be used in conjunction with demodulator products. These requirements will have an impact on consumer electronics manufacturers, including small entities. We seek comment on the possible 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. The proposed rules would also allow cable operators to encrypt the digital basic tier, however, we do not believe that this voluntary provision would have an impact on small entities.

36. 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.

37. As indicated above, the Further NPRM seeks comment on whether the Commission should adopt rules establishing an approval mechanism for new content protection and recording technologies to be used with demodulator products. Consumer electronics manufacturers may be required to seek such approval prior to implementing content protection and recording technologies in demodulator products. We welcome comment on modifications of this proposal to lessen any potential impact on small entities, while still remaining consistent with our policy goals. The Further NPRM also seeks comment on whether cable operators should be allowed to encrypt the digital basic tier in order to be able to give effect to the ATSC flag through cable operators' conditional access system. While we do not believe that this rule change would have a potential impact on small entities because it would be voluntary in nature, we seek comment on whether a special approach toward any possible compliance burdens on small entities might be appropriate.

38. Federal Rules Which Duplicate, Overlap, or Conflict with the Commission's Proposals. None.

Section 101(a)(5)(A) of the Marine Mammal Protection Act (16 U.S.C. 1361 et seq. ) (MMPA) directs the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and regulations are issued.

Permission may be granted for periods of 5 years or less if the Secretary finds that the total taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses, and regulations are prescribed setting forth the permissible methods of taking, other means of effecting the least practicable adverse impact on the affected species or stocks and their habitats, and the requirements pertaining to the monitoring and reporting of such taking.

NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” The MMPA defines “harassment” as:

On September 2, 2003, NMFS received an application from the USAF requesting authorization under section 101(a)(5)(A) of the MMPA to harass small numbers of marine mammals incidental to space vehicle and test flight activities conducted by the USAF on Vandenberg. NMFS proposes regulations to govern these authorizations, to be effective from January 1, 2004, through December 31, 2008. These regulations, if implemented, would allow NMFS to issue annual Letters of Authorization (LOAs) to the USAF. The current regulations and LOA expire on December 31, 2003. A detailed description of the operations is contained in the USAF application (USAF, 2003) which is available upon request ( see ADDRESSES ).

VAFB is the main west coast launch facility for placing commercial, government, and military satellites into polar orbit on expendable (i.e. not reusable) launch vehicles, and for testing and evaluation of intercontinental ballistic missiles (ICBM) and sub-orbital target and interceptor missiles. In addition to space vehicle and missile launches, there are security and search and rescue helicopter operations, as well as test and evaluation flights of fixed-wing air craft. The USAF expects to launch a total of 30 rockets and missiles from VAFB.

Currently five space launch vehicle programs use VAFB to launch satellites into polar orbit: Atlas IIAS, Delta II, Minotaur, Taurus, and Titan (II and IV). Two new programs, the Evolved Expendable Launch Vehicle (EELV) and Space X, are scheduled to make their inaugural launches at VAFB in 2004. The EELV will use a Boeing Delta IV vehicle and a Lockheed-Martin Atlas V. Eventually, these vehicles will replace many of the other programs such as Atlas II and Titan, but initially there will be an overlap in the launches of each program. The Space X is a commercial program which will launch small payloads into low earth orbit. There is also a variety of small missiles, several types of interceptor and target vehicles, and fixed-wing aircrafts that are launched from VAFB.

The Atlas IIAS is launched from Space Launch Complex (SLC) 3E on south VAFB, approximately 9.9 km (6.2 mi) from the Rocky Point harbor seal haul-out area and 11.1 km (6.9 mi) from the Spur Road haul-out site. The Atlas IIAS is a medium-sized (up to 48m, 157.5 ft, tall) launch vehicle with approximately 724,800 lbs of thrust. Two Atlas IIAS launch vehicles have been launched from SLC 3E (the Atlas IIAS AC-141 Terra launched on 18 December 1999 and the Atlas IIAS MLV-10 launched on 8 September 2001).

The received sound level at south VAFB from the Atlas IIAS launches was relatively quiet, due to the great amount of attenuation from the 9.9 km (6.2 mi) distance between the measurement site and SLC-3E. Measurements at the south VAFB haul-out site were similar to those measured at the north base Spur Road monitoring site, but slightly higher. The A-weighted sound exposure levels (ASEL), measured at the south haul-out site for the two launches, were 87.3 and 88.5 dB, the unweighted SELs were measured at 124.2 and 118.0 dB and the C-weighted SEL were measured to be 113.6 and 112.1 dB. The launch noise reached a maximum fast sound level (Lmax) of 76.4 and 80.8 dB.

The launch noise measured at the north VAFB Spur Road acoustic monitoring site was slightly quieter than at the south VAFB monitoring locations, due to the greater distance between the site and the launch pad. The launch noise at this site was unsubstantial. The A-weighted SELs for both launches were measured to be 86.1 dB, and the Terra launch had an unweighted SEL of 117.2 dB, and a C-weighted SEL of 110.0 dB. The launch noise reached Lmax levels of 75.2 and 79.7 dB. A sonic boom was measured for the launch of the Atlas IIAS MLV-10 on SMI. The peak overpressure was 0.75 psf (125.1 dB) and the rise time was relatively slow at 2.6 milliseconds. This relatively slow rise time reduces the higher frequency content of the boom and tends to produce a sound more resembling distant thunder than the more familiar sharp crack of a distinct sonic boom.

The Delta II is launched from SLC-2 on north VAFB, approximately 2.0 km (1.2 mi) from the Spur Road harbor seal haul-out site. The Delta II is a medium-sized launch vehicle approximately 38 m (124.7 ft) tall. The Delta II uses a Rocketdyne RS-27A main liquid propellant engine and additional solid rocket strap-on graphite epoxy motors (GEMs) during liftoff. A total of 3, 4 or 9 GEMs can be attached for added boost during liftoff. When 9 GEMs are used, 6 are ignited at liftoff and 3 are ignited once the rocket is airborne. When 3 or 4 GEMs are used, they are all ignited at liftoff. The number of GEMs attached to each vehicle will determine the amount of launch noise produced by the vehicle.

Six Delta II launches have been acoustically quantified near the Spur Road harbor seal haul-out site. The noise at the Spur Road site from the Delta II launches is relatively loud, primarily due to the close proximity of the launch pad. The Delta II is the second loudest of the launch vehicles at the Spur Road haul-out site with unweighted SEL measurements ranging from 126.5 to 128.8 dB and averaging of 127.4 dB (as measured by the digital audio tape [DAT] recorder). The C-weighted SEL ranged from 124.3 to 126.7 dB with an average of 125.4 dB (DAT). The A-weighted SEL measurements from both a sound level meter (SLM) and the DAT were similar and ranged from 111.8 to 118.2 dB and had an average of114.5 dB (DAT). The seal-weighted SELs were considerably reduced to range from 74.2 to 79.7 dB and averaged 76.9 dB. The Lmax values ranged from 104.2 to 112.5 and averaged 109.5 dB. Sonic booms have been measured on SMI from two Delta II launches, the Iridium MS-12 and EO-1. The Iridium MS-12 had two small sonic booms impact the Point Bennett area of SMI with peak overpressures of 0.47 and 0.64 psf and rise times of 18 and 91 ms. The Delta II EO-1 sonic boom had a peak overpressure of 0.4 psf and rise time of 41 microseconds (μs).

The Minotaur launch vehicle is launched from the California Spaceport on south VAFB, near SLC-6 and is approximately 2.3 km (1.4 mi) from the south VAFB pinniped haul-out sites. The Minotaur launch vehicle is made up of modified Minuteman II Stage I and Stage II segments mated with Pegasus upper stages. The Minotaur is a small vehicle, approximately 19.2 m (63.0 ft) tall with approximately 215,000 lbs of thrust. Although the Minotaur produces less thrust than other larger launch vehicles, due to its close proximity to the south VAFB haul-out sites, it is one of the loudest vehicles at this site. Two Minotaur launch vehicles have been launched from VAFB (26 January 2000 and 19 July 2000).

The launch noise measured near the south VAFB haul-out sites was moderately loud, primarily due to the close proximity to the launch pad. The unweighted SEL measurements varied by 3.5 dB between the two launches and were measured to be 119.4 and 122.9 dB. The C-weighted SELs varied less and were measured at 116.6 and 117.9 dB. From the DAT and SLM measurements, the A-weighted SEL ranged from 104.9 to 107.0 dB. The launch noise reached an Lmax level of 101.7 and 103.4 dB.

The Taurus space launch vehicle is launched from 576-E on north VAFB, approximately 0.5 km (0.3 mi) from the Spur Road harbor seal haul-out site. There have been 6 Taurus rockets launched from 576-E. The standard Taurus is a small launch vehicle, at approximately 24.7 m (81.0 ft) tall and is launched in two different configurations: Defense Advanced Research Projects Agency (DARPA) and standard, with different first stages providing 500 or 400 kilopounds of thrust, respectively.

The launch noise from 4 Taurus launches has been measured near the Spur Road haul-out site. The noise arriving at the Spur Road monitoring site, near the harbor seal haul-out, was substantial due to the close proximity of the launch pad. At 0.5 km to SLC-576, the Taurus is the loudest of the launch vehicles at the Spur Road haul-out site. The unweighted SEL measurements from all the measured Taurus vehicles ranged from 135.8 to 136.8 and averaged 136.4 dB. The C-weighted SEL measurements were slightly lower as expected, ranging from 133.8 to 134.8 dB and averaged 134.5 dB. The A-weighted SEL measurements ranged from 123.5 to 128.9 dB with an average of 126.6 dB (SLM). The harbor seal-weighted SELs ranged from 88.0 to 91.3 dB and averaged 90.2 dB. The Lmax values were measured to range from 118.3 to 122.9 dB and averaged 120.9 dB (SLM).

The Titan II space launch vehicle is launched from SLC-4W, which is approximately 8.5 km (5.3 mi) north of the south VAFB pinniped haul-out sites. The USAF has launched 6 Titan II space launch vehicles from SLC-4W during the study period. The Titan II space launch vehicle is a medium-sized liquid fueled rocket at 36.0 m (118.1 ft) tall. It has a small-to-medium weight lift capability; additional strap-on GEM solid rocket motors can be added to the first stage to increase the lift capability. All of the Titan II launch configurations were the same, launched without additional solid rocket motors attached and had a thrust of approximately 474,000 lbs.

The Titan II launch noise as measured near the south VAFB haul-out site, which is the closest haul-out to SLC-4W, is unsubstantial and ranks among the quieter vehicles. This is primarily due to its moderate thrust and the relatively long distance to the launch pad. The unweighted SEL measurements ranged from 116.3 to 120.3 dB and averaged 118.3 dB. The C-weighted SELs ranged from 109.6 to 115.0 dB and averaged 112.5 dB. The A-weighted SELs ranged from 83.5 to 95.7 dB and averaged 89.9 dB (DAT). The harbor seal-weighted SELs ranged from 38.2 to 54.5 dB and averaged 47.4 dB. The Lmax values were measured to range from 74.9 to 85.9 dB and averaged 80.1 dB.

The Titan IV space launch vehicle is launched from SLC-4E, which is approximately 8.5 km (5.3 mi) from the south VAFB pinniped haul-out site. The Titan IV series was developed as a complementary heavy-lift vehicle to the Space Shuttle and is by far the largest vehicle currently launched from VAFB. The Titan IV is approximately 44 m (144.5 ft) tall and has a liquid fuel core engine and two upgraded solid rocket motors (SRMU) that provide approximately 3,400,000 lbs of thrust. The Titan IV is moderately loud and is one of the louder vehicles at the south VAFB haul-out site, primarily due to its large amount of thrust. The launch noise measurements for the 4 Titan IV launches measured were all fairly consistent. The unweighted SELs ranged from 125.9 to 130.2 dB and averaged 127.8 dB. Similarly, the C-weighted measurements varied very little, with the C-weighted SELs ranging from 119.0 to 124.2 dB and averaging 121.5 dB. There was a greater difference with the A-weighted and harbor seal-weighted measurements with the A-weighted SELs ranging from 96.6 to 104.5 dB with an average of 101.5 dB (DAT). The harbor seal-weighted SELs ranged from 54.4 to 63.5 dB with an average of 60.3 dB. The Lmax values were determined to range from 88.2 to 100.6 dB and averaged 95.6 dB. Several sonic booms have been measured for the launches of the Titan IV. The peak overpressures from sonic booms produced by this vehicle range from 1.34 to 8.97 psf. These booms have been measured for 4 launches of the Titan IV and have impacted each coast of SMI.

The EELV is the Air Force's newest launch vehicle program and will use the Atlas V vehicle from Lockheed-Martin and the Delta IV space launch vehicle from the Boeing Company for launches from VAFB. The EELV program will become the main space launch program over the next several years, replacing many of the other launch vehicles at VAFB. The maximum number of forecasted EELV launches per year is 5, with a total of 68 launches projected through 2020 (U.S. Air Force 2000).

The Atlas V consists of both a medium (V400) and heavy (V500) lift vehicle with up to 5 solid rocket boosters. During the next 5 years, only the medium lift V400 series vehicle will be launched from VAFB. The V400 series will lift up to 7,640 kg (16,843 lbs) into geosynchronous transfer orbit or up to 12,500 kg (27,557.3 lbs) into low earth orbit. The Atlas V consists of a common booster core (3.8 m, 12.5 ft, in diameter and 32.5 m, 106.6 ft, high) powered by an RD180 engine that burns a liquid propellant fuel consisting of liquid oxygen and RP1 fuel (kerosene). The RD180 engine provides 840,000 lbs of thrust on liftoff, and up to three solid rocket boosters can be attached to the common booster core to provide extra lift. There is a Centaur upper stage (3.1 m, 10.2 ft, in diameter and 12.7 m, 41.7 ft, high) powered by a liquid oxygen and liquid hydrogen fuel. The payload fairing is up to 4.2 m (13.7 ft) making the complete Atlas V up to 58.3 m (191.3 ft) high.

The Atlas V will be launched from SLC-3 East, the site of the current Atlas II launch facility. SLC-3 East is approximately 9.9 km (6.2 mi) north of the main harbor seal haul-out site in the area of Rocky Point. Launches of the smaller Atlas IIAS (47.4 m, 51.8 ft, in length and 700,000 lbs of thrust) produced A-weighted sound exposure levels ranging from 87.3 to 88.5 dB at the south VAFB haul-out site. The predicted noise level at the closest haul-out site (10 km, 6.2 mi, from the launch pad of an Atlas V) would be slightly louder than the noise levels from the Atlas IIAS. The maximum sonic boom impacting the Channel Islands would be 7.2 pounds per square foot (psf). The size of the actual sonic boom will depend on meteorological conditions, which can vary by day and season and with the trajectory of the vehicle.

The Delta IV family of launch vehicles consists of 5 launch vehicleconfigurations utilizing a common booster core (CBC) first stage and 2 and 4 strap on GEMs. The Delta IV comes in four medium lift configurations and one heavy lift configuration consisting of multiple common booster cores. The Delta IV can carry payloads from 4,210 to 13,130 kg (9.281.3 to 28,946.2 lbs) into geosynchronous transfer orbit. The Delta IV will be launched from SLC-6, which is 2.8 km (1.7 mi) north of the main harbor seal haul-out site at South Rocky Point. The Delta IV will be the loudest vehicle at the south VAFB harbor seal haul-out site. The Delta IV is predicted to have a sonic boom offshore of up to 7.2 psf for the largest of the medium configurations and 8 to 9 psf for the heavy configuration. The size and location of the actual sonic boom will depend on meteorological conditions, which can vary by day and season and with the trajectory of the vehicle.

The Space X program will launch the Falcon space launch vehicle from SLC 3-West on south VAFB. The Falcon is a light space launch vehicle and will send small payloads of up to 500 kg (1102.3 lbs) into low earth orbit. The Falcon vehicle is 1.7 m (5.6 ft) in diameter and 20.7 m (67.9 ft) in height, making it approximately the size of a Peacekeeper missile. The Falcon is a two-stage liquid fuel vehicle. The first stage is reusable and uses a liquid oxygen and kerosene base fuel. The second stage is expendable and also uses a liquid oxygen and kerosene fuel.

There are a variety of small missiles launched from VAFB, including Peacekeeper, Minuteman III, and several types of interceptor and target vehicles for the National Missile Defense Program. The missile launch facilities are spread throughout northern VAFB and are within 0.65 to 3.9 km (0.4 to 2.4 mi) of the recently occupied Lion's Head haul-out site and approximately 11 to 16.5 km (6.8 to 10.3 mi) north of the Spur Road and Purisma Point harbor seal haul-out sites.

The Peacekeeper missile is an Inter-Continental Ballistic Missile (ICBM) that was developed as part of the United States strategic deterrence force. The Peacekeeper is launched from various underground silos as part of a test and evaluation program. The Peacekeeper is composed of four rocket motors, 21.8 m (71.5 ft) in length by 2.3 m (7.5 ft) in diameter, with the first stage thrust of 500,000 lbs. The Peacekeeper, unlike other silo launch missiles, is “cold launched,” initially propelled out of the silo with pressurized gas. The first stage rocket motor is ignited once the vehicle is approximately 20 m (65.6 ft) above the ground. The Peacekeeper missile is being phased out and only a few launches remain.

The Minuteman III missile is an ICBM that was also developed as part of the United States strategic deterrence force. Similar to the Peacekeeper, the Minuteman III is launched from underground silos but is not cold launched. The Minuteman III is composed of three rocket motors and is 18.0 m (59.1 ft) in length by 1.7 m (5.6 ft) in diameter, with a first stage thrust of 202,600 lbs.

The Missile Defense Agency (MDA) is developing the Ground-based Midcourse Defense (GMD) element of the conceptual Ballistic Missile Defense System (BMDS). The BMDS concept is to defend against threat missiles in each phase or segment of the missile's flight. There are three segments of this conceptual system in various stages of technology development: Boost Phase Defense, Midcourse Defense, and Terminal Defense. Each segment of the BMDS is being developed to destroy an attacking missile in the corresponding boost, mid-course, or terminal phase of its flight. The GMD element is designed to protect the United States in the event of a limited ballistic missile attack by destroying the threat missile in the mid-course phase of its flight. During the mid-course phase, which occurs outside the earth's atmosphere for medium and long-range missiles, the missile is coasting in a ballistic trajectory.

A variety of small missiles under 13 m (42.7 ft) including the Hera, Lance, Patriot As A Target, ERINT, Black Brant, Terrier, SRTYPI II, Castor I, Storm, ARIES, and Hermes are also included in the application because of the new harbor seal pupping site that was established in 2002 at Lion's Head. Those missiles, in addition to missiles already included in previous NMFS authorizations for VAFB (Minuteman and Peacekeeper missiles and missiles from the Ground Based Interceptor programs), and the new generation of missiles from the MDA will be covered by these regulations and annual LOAs. Several types of missiles will be used for target and interceptor test and evaluation; some of these missiles are being used currently (Booster Verification Test) and the remainder will not be used until 2004 or later. All of the target and interceptor missiles are smaller than the Minuteman III or Peacekeeper missiles that are currently launched from VAFB. Many of the different missile types have interchangeable first or second stage motors; therefore, most of the missiles may have similar noise characteristics, depending on their configuration.

The Ground Based Interceptors (GBI) are approved for launchings at VAFB (12 May 2003, 68 FR 25347). The GBI Booster Verification and the uncanisterized Orbital Booster Vehicle will be flight tested from LF-21 and LF-23. The missiles would be comprised of a commercially available, solid propellant booster consisting of three stages and an exo-atmospheric kill vehicle emulator.

VAFB is also a site for limited flight testing and evaluation of fixed-wing aircraft. Three approved routes are used that avoid the established pinniped haul-out sites. A variety of aircraft, including the B1 and B2 bombers, F-14, F-15, F-16, and F-22 fighters, and KC-135 tankers may use the test and evaluation routes.

Various fixed-wing aircraft (jet and propeller aircraft) use VAFB for a variety of purposes including delivery of space or missile vehicle components, launching of launch vehicles at high altitude, such as the Pegasus, and emergency landings. VAFB has approximately 120-fixed-wing flights per year and 10,000 take offs and landings (training operations), which occur mostly on north VAFB (U.S. Air Force 2003). All aircraft are required to remain outside of an established 1,000-ft (304.8 m) bubble around pinniped rookeries and haul-out sites, except when performing a life-or-death rescue mission, when responding to a security incident, or during an aircraft emergency.

The VAFB helicopter squadron uses a UH-IN helicopter and provides support for launch operations, security reconnaissance, aerial photography, training, transport, and search and rescue. VAFB has approximately 75 helicopter sorties per month (U.S. Air Force 2003). All helicopters are required to remain outside of the 1,000-ft (304.8 m) bubble around pinniped rookeries or haul-out sites, except when performing a life-or-death rescue mission, when responding to a security incident, or during an aircraft emergency.

VAFB is composed of 99,000 acres of land and approximately 65 km (39 mi) of coastline on the coast of Central California within Santa Barbara County. The northern Channel Islands are located 72 km (44.7 mi) south of VAFB and consist of San Miguel Island (SMI), Santa Cruz Island (SCI), and Santa Rosa Island (SRI). The northern Channel Islands are part of the Channel Islands National Park and the Channel Islands National Marine Sanctuary.

The most common marine mammal inhabiting VAFB is the Pacific harbor seal ( Phoca vitulina richardsi ). Harbor seals are local to the area, rarely traveling more than 50 km (31.1 mi) from their haul-out sites. They haul-out on small offshore rocks or reefs and sandy or cobblestone cove beaches. Although harbor seals can be found along much of the VAFB coastline, they congregate in the areas of Oil Well Canyon to South Rocky Point and near the boat harbor on south VAFB. The haul-out site on south VAFB has the largest population of harbor seals on VAFB, with up to 515 seals surveyed, and has been growing at an average annual rate of 12.7 percent since 1997 while the California population has remained stable. At least 700 harbor seals used SMI, 1,000 used SCI and 900 used SRI during the 2002 aerial counts (Lowry and Caretta 2003).

Less than 200 California sea lions ( Zalophus californianus ) are found seasonally on VAFB. Sea lions may sporadically haul-out to rest when in the area to forage or when transiting the area, but generally spend little time there. Sea lions may haul-out in the area of Rocky Point, Point Arguello, Point Pedernales, and Point Sal, just north of VAFB. In 2003, at least 142 sea lions and 5 pups were hauled out at Rocky Point. This was the first reported occurrence of sea lions being born at VAFB but may be a result of the El Nino conditions that existed at that time. SMI is one of the major California sea lion rookeries, along with San Nicolas Island, with about 23,000 pups born each year. Launches from VAFB will only affect SMI.

Approximately 150 northern elephant ( Mirounga angustirostris ) seals may be found seasonally on VAFB. Weaned elephant seal pups making their first foraging trips occasionally haul-out for 1 to 2 days at VAFB before continuing on their migration. In April 2003, approximately 88 juveniles and young adult females began to haul-out at South Rocky Point to molt. The nearest elephant seal haul-out point is at Point Conception, 25 km (15.5 mi) south of VAFB. Elephant seals primarily use SMI and SRI for breeding and hauling out to rest or molt. Up to 12,000 elephant seal pups are found on SMI and up to 1,500 on SRI (Lowry 2002).

The Director has made a preliminary determination that the EFP applications contain all the required information; that the activities to be authorized under the EFP would be consistent with the goals and objectives of the Atlantic weakfish fishery under the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act); and that the applications warrant further consideration. This document requests public input in the form of written comments to NMFS relative to the issuance of EFPs to the State of North Carolina. If granted, these EFPs would authorize a flynet characterization study to be conducted by the North Carolina Division of Marine Fisheries (NCDMF) in a closed area south of Cape Hatteras. Two participating flynet vessels, each with its own EFP and observer aboard, would conduct up to a total of 18 trips per year over each of two seasons, from 15 January through 1 April, in 2004 and 2005, south of Cape Hatteras, for a maximum of 36 trips.

The NCDMF has presently applied for two EFPs in 2004 to conduct the first year of a 2-year characterization study in the closed area in the EEZ south of Cape Hatteras, North Carolina. The NCDMF previously applied, and was granted by NOAA Fisheries, two identical EFPs for 2003 to perform an identical study, but due to inclement weather and insufficient availability of fish, NCDMF was unable to conduct year one of their study in 2003. Hence, NCDMF is reapplying to again begin their study, but in 2004. The previous NCDMF application also sought, and was granted by NOAA Fisheries, a third EFP to test turtle excluder devices (TEDs) in the closed area. Unlike the work involved in the characterization study, NCDMF was able to conclude its testing of TEDs, and is presently analyzing the data gained. Accordingly NCDMF does not presently seek a third EFP, as it did last year, for TED testing.

NOAA Fisheries has authority to grant the requested EFPs under the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act), 16 U.S.C. 5101 et seq. , and regulations at 50 CFR 697.22 concerning the conduct of activities that are otherwise prohibited by the regulations in this part. The prohibited activities for which NCDMF seeks exemption involve weakfish regulations at 50 CFR 697.7(a)(5) that prohibit any person from fishing with a flynet in the Exclusive Economic Zone (EEZ) off North Carolina in a closed area south of Cape Hatteras, as defined by this regulation. This area was closed to flynetters in order to reduce the harvest of the recovering weakfish stock, especially the harvest of juvenile weakfish known to congregate in the closed area. In addition, other prohibitions for which exemption is sought are at 50 CFR 697.7(a)(1) and (2), which prohibits fishing for, harvesting, possessing, or retaining weakfish less than 12 inches (30.5 cm), in the EEZ and at 50 CFR 697.7(a)(3), which prohibits fishing for weakfish coastwide in the EEZ with a minimum mesh size less than 3 1/4-inch (8.3 cm) square stretched mesh (as measured between the centers of opposite knots when stretched taut) or 3 3/4-inch (9.5 cm) diamond stretched mesh for trawls.

The present application by NCDMF for two EFPs to begin a characterization study is identical to the application for EFPs sought last year by NCDMF to perform this same study. Last year, on December 18, 2002, NMFS issued two EFPs to NCDMF to conduct a flynet characterization study, in cooperation with NMFS, with two flynet vessels using mesh at least as large as defined in the Atlantic States Marine Fisheries Commission's (Commission) Weakfish Fishery Management Plan Amendment 3 (Amendment 3), and at 50 CFR 697.7(a)(3), to collect information on the size and species composition of finfish caught in modified flynets in the closed area. Under last year's EFPs, the NCDMF was to assess the effects, including the species and size composition of the catch, of using larger mesh size nets in the North Carolina flynet fishery if it were to be allowed to resume operations south of Cape Hatteras. The mesh size used in the flynet fishery, prior to the 1997 closure of this area, was significantly smaller than is currently required. This information would have permitted NCDMF, the Commission, and NMFS to properly assess the potential impacts of reopening the closed area to flynets with larger minimum-mesh sizes after management goals have been met and the stock is declared to be restored. Additional terms of the study proposal related to sample design or address concerns raised by the Commission's Weakfish Fishery Management Board and its Technical Committee. The study was to terminate if any cumulative, monthly sample yields juvenile or undersized fish in excess of 10 percent of the total catch for that month. If an annual cap of 175,000 lbs (79,380 kg) on landings of weakfish taken south of Cape Hatteras is reached, the study would end for that year. Multiple tows made on a single trip were to be spatially separated by at least one (1) nautical mile to insure maximum geographic coverage and prevent directing effort on one specific school of fish. The entire contents of each tow on an individual trip were to be kept separate and processed separately at the dock. NMFS observers were to be required on each trip to monitor fishing activity and to record global positioning system coordinates for each tow, interactions with any threatened or endangered species, tow time, depth, water temperature, air temperature, date, and time. NMFS observers were to also record net dimensions and design specifications to document successful designs, if a net was found to effectively avoid catches of undersized fish. In order to determine the ability of these flynets to minimize bycatch of undersized fish, unculled catches were to be sorted by tow for species composition and weight by market category, and sub-samples would be measured for length frequency. Regulatory discards, including sub-legal weakfish, and non-marketable species, were to be sorted, weighed and a sub-sample would be taken for length frequency. These fish were to be properly disposed of, and would not be sold. ESA and other protected species would have been handled as required by law; observers would have recorded and reported all discarded red drum and striped bass. The flynet characterization was to be terminated if takes (lethal or non-lethal) of loggerhead or Kemp's ridley sea turtles exceeded one half of the numbers (20 and 2) allowed in the Incidental Take Statement of the 1997 BO (that is, 10 or 1, in any one year). Further, analysis of the study data was to be coordinated by NCDMF and NMFS staff and the Commission was to be briefed through annual and final reports that would provide maps of the sample areas overlaid with the location of each tow, species encountered, total weights, numbers, and length frequency distributions of selected species. The final report was also to summarize the findings from each year and attempt to relate variability in catches and species composition with environmental variables. The report was also to summarize all interactions with sea turtles and include a discussion on the use of TEDs in the flynet fishery .

Unfortunately, due to poor weather and insufficient availablity of fish, NCDMF was unable to complete its year one experiments in the 2-year study. Accordingly, NCDMF seeks to reapply for EFPs to conduct an identical two year characterization study under identical terms, this time for the 2004 and 2005 years. Specifically, the NCDMF proposes to complete the first year of the 2-year flynet characterization study using the same means and methods as described above for last year's EFP. The flynet characterization study would be conducted in a closed area south of Cape Hatteras by two participating flynet vessels, each with its own EFP and observer aboard, conducting up to a total of 18 trips per year over each of two seasons, from 15 January through 1 April, in 2004 and 2005, for a maximum of 36 trips.

The EFP would exempt up to three vessels from the requirements of the Atlantic weakfish regulations according to the provisions at 50 CFR 600.745 and 697.22, as follows: (1) prohibiting of the use of flynets in the closed area of the EEZ off North Carolina as defined at § 697.7(a)(5); and (2) fishing for, harvesting, possession or retention of any weakfish less than 12 inches (30.5 cm) in total length from the EEZ as specified at § 697.7(a)(1) and (2) for data collection purposes.

The environmental assessment prepared for the proposed flynet characterization study in 2003 found that no significant environmental impacts would result from the proposed action.

The FMP, which was implemented by publication of the final rule in the Federal Register on December 15, 1999 (64 FR 69888), divides management unit species into two categories: actively managed and monitored. Harvest guidelines for actively managed species (Pacific sardine and Pacific mackerel) are based on formulas applied to current biomass estimates. Biomass estimates are not calculated for species that are only monitored (jack mackerel, northern anchovy, and market squid).

At a public meeting each year, the biomass for each actively managed species is reviewed by the Pacific Fishery Management Council's (Council) Coastal Pelagic Species Management Team (Team). The biomass, harvest guideline, and status of the fisheries are then reviewed at a public meeting of the Council's CPS Advisory Subpanel (Subpanel). This information is also reviewed by the Council's Scientific and Statistical Committee

(SSC). The Council reviews reports from the Team, Subpanel, and SSC, and then, after providing time for public comment, makes its recommendation to NMFS. The annual harvest guideline and season structure are published by NMFS in the Federal Register as soon as practicable before the beginning of the appropriate fishing season. The Pacific sardine season begins on January 1 and ends on December 31 of each year.

The Team meeting took place at the Southwest Fisheries Science Center in La Jolla, CA on October 14, 2003. A public meeting between the Team and the Subpanel was held at the same location that afternoon. The Council reviewed the report at its November meeting in Del Mar, CA and heard comments from its advisory bodies and the public.

Public comments are requested on how the fishery might be conducted for the 2004 fishing season to achieve but not exceed the harvest guideline while minimizing impacts on the harvest of other CPS.

In view of the above, the following would be implemented for the January 1 through December 31, 2004, fishing season.

Based on a biomass estimate of 1,090,587 metric tons (mt)(in U.S. and Mexican waters), using the FMP formula, the harvest guideline for Pacific sardine in U.S. waters for January 1, 2004, through December 31, 2004, is 122,747 mt. The biomass estimate is slightly higher than last year's biomass estimate; however, the difference between this year's biomass is not statistically significant from the biomass estimates of recent years. Therefore, the impacts of the fishery on the stock will be approximately the same as in the year prior. Similarly, the impacts of the fishery on other components of the environment will be similar to those in 2003.

Under the FMP, the harvest guideline is allocated one-third for Subarea A, which is north of 39° 00′ N. lat. (Pt. Arena, CA) to the Canadian border, and two-thirds for Subarea B, which is south of 39° 00′ N. lat. to the Mexican border. Under this proposed rule, the northern allocation for 2004 would be 40,916 mt; the southern allocation would be 81,831 mt. In 2003, the northern allocation was 36,969 mt and the southern allocation was 73,939 mt.

Normally, an incidental landing allowance of sardine in landings of other CPS is set at the beginning of the fishing season. The incidental allowance would become effective if the harvest guideline is reached and the fishery closed. A landing allowance of sardine up to 45 percent by weight of any landing of CPS is authorized by the FMP. An incidental allowance prevents waste of sardine caught while fishing for other species and protects fishermen from being cited for a violation when sardine occur in catches of other species, while controlling total sardine harvest by reducing the potential to target sardine while claiming to be fishing for other species. Sardine landed with other species also requires sorting at the processing plant, which adds to processing costs. Mixed species in the same load may damage smaller fish. The sardine population was estimated using a modified version of the integrated stock assessment model called Catch at Age Analysis of Sardine Two Area Model (CANSAR TAM). CANSAR-TAM is a forward-casting, age-structured analysis using fishery dependent and fishery independent data to obtain annual estimates of sardine abundance, year-class strength, and age-specific fishing mortality for 1983 through 2003. The CANSAR-TAM was modified to account for the expansion of the Pacific sardine stock northward to include waters off the northwest Pacific coast. Information on the fishery and the stock assessment are found in the report Stock Assessment of Pacific Sardine with Management Recommendations for 2004 (see ADDRESSES ).

The formula in the FMP uses the following factors to determine the harvest guideline:

1. The biomass of age one sardine and above. For 2004, this estimate is 1,090,587 mt.

2. The cutoff. This is the biomass level below which no commercial fishery is allowed. The FMP established this level at 150,000 mt.

3. The portion of the sardine biomass that is in U.S. waters. For 2004, this estimate is 87 percent, based on the average of larval distribution obtained from scientific cruises and the distribution of the resource obtained from logbooks of fish-spotters.

4. The harvest fraction. This is the percentage of the biomass above 150,000 mt that may be harvested. The fraction used varies (5-15 percent) with current ocean temperatures. A higher fraction is used for warmer ocean temperatures, which favor the production of Pacific sardine, and a lower fraction is used for cooler temperatures. For 2004, the fraction was 15 percent based on three seasons of sea surface temperature at Scripps Pier, California.

As indicated above the harvest guideline for U.S. waters is allocated one-third (40,916 mt) to Subarea A, two-thirds (81,831 mt) to Subarea B.

These proposed specifications are issued under the authority of, and are in accordance with, the Magnuson-Stevens Fishery Conservation and Management Act, the FMP, and 50 CFR part 660, subpart I (the regulations implementing the FMP).

This proposed rule has been determined to be exempt for significant for purposes of Executive Order 12866.

NMFS prepared an IRFA that describes the economic impact this proposed rule, if adopted, would have on small entities. Specifically, NMFS is requesting that the public provide comments on the range of alternatives considered by NMFS and offer any additional alternatives that NMFS should consider for the Pacific sardine fishery. The IRFA is available from NMFS (see ADDRESSES ). A summary of the IRFA follows:

A description of the action, why it is being considered, and the legal basis for this action are contained in the SUMMARY and in the SUPPLEMENTARY INFORMATION of this proposed rule. A harvest guideline is established by the FMP to limit harvests to levels that protect the resource while providing a source of revenue for the fishing industry and other benefits to society over the long term.

The harvest formula in the FMP is conservative and a significantly higher harvest than that allowed by the FMP could be realized without a detrimental effect on the resource, at least in the short term; this could provide substantial economic benefits to the fishing industry. However, there are both biological and economic reasons to restrain harvests. First, there is uncertainty about the effect of expanded harvests in the northern subarea; that fishery takes larger fish that may play an important role in maintenance of resource productivity. Research into the relationship of the northern and southern components is necessary before allowing higher harvests. Second, the harvest guideline derived by the current formula has provided sufficient resources in recent years to satisfy existing markets; therefore, there would not likely be a significant economic benefit from a higher harvest guideline. The best information available on the economics of the CPS fishery indicates that landings and revenue have increased steadily since recovery of the resource began and could increase in 2004 if additional markets were developed. However, landings in 2003 are projected to be similar to the landings in 2001 and 2002, suggesting that markets are saturated. Therefore, there would not likely be a significant increase in harvests even if more fish were made available. That is, there is little opportunity to increase revenue in 2004.

Implementing the 2003 harvest guideline and allocations (i.e., the no action alternative) would keep the fishery at 2003 levels. There would not be much difference between this alternative and the proposed action as the harvest guideline would be quite similar.

Implementing the new harvest guideline for 2004 without allocating to the different subareas would set up a derby fishery without regard to the allocation procedures in the FMP. The fisheries in Subarea A and in Subarea B could harvest without restriction. There would be a possibility that the fishery in the northern subarea would harvest sardine at a level that would result in either a shift of fishery benefits from south to north or an early closure of the coastwide fishery. There would be increased revenue in the north at the expense of the southern fishery. However, premature closure would also result in substantial idle purse seine capacity in the southern subarea, where the fishery has traditionally been more active in the fall and winter.

Setting a harvest guideline above that authorized by the FMP is conceivable if the biomass and the harvest guideline were low and recruitment high. The harvest guideline is based on greater than age 1 plus sardine. If the biomass of sardine less than age 1 were known to be high, then some economic benefits would accrue to the fishing industry by allowing a harvest greater than that permitted by the formula in the FMP based on the premise that these fish are short-lived and should be harvested when available. If this situation occurred, economic benefits could be conferred on the fishing industry with the possibility of no negative biological impact. However, this approach faces two difficulties: (1) The higher the harvest is above that authorized by the FMP, the greater the potential for exacerbating a decline of the resource. The risk would be small at high biomass levels such as those of recent years, but as noted there is uncertainty, especially concerning the relationship between the northern and southern components of the stock. Further, there is no need for a higher harvest guideline at this time because, under the current approach, enough sardine has been available for harvest to satisfy existing market. (2) Such an approach (allowing higher harvests) would most likely be viewed favorably by industry if the biomass (and ensuing harvest guideline) were low and the fishery faced economic hardship from a lack of other fishing opportunities. In this situation, the potential for negative biological impacts is substantial. The uncertainty of the estimate of sardine less than age 1 is high. The estimates of biomass and/or recruitment could be high, but natural mortality is high, and how much biomass a zero age class will contribute to the biomass of the resource is uncertain. This increases the likelihood of negative biological impacts. In the final analysis, however, this alternative would have similar results as the proposed action. The proposed harvest guideline is at a level that allows maximum use by existing markets; therefore, there would not likely be significant benefits from a higher harvest guideline. If information on Pacific sardine became available that had not been previously considered indicating a risk of following the harvest formula in the FMP, a more conservative harvest guideline might be implemented to protect the resource. There is no such information at this time. The harvest formula in the FMP, however, sets a conservative harvest policy. Setting a harvest guideline lower than required by the FMP would not likely bestow significant biological benefits at current biomass levels.

In summary, there are no factors that would justify deviation from the harvest guideline formula and allocation approach of the FMP. The requirements of the FMP that specify a harvest guideline action based on scientific data and a formula in the FMP continue to be valid. Setting a harvest guideline less than the proposed harvest guideline could have significant economic impacts. A reasonable assumption is that the harvest guideline will be attained. At an ex-vessel price of $114/mt (2001-2002 average), this would yield revenue of $13.9 million. Every 10,000 mt reduction in landings would reduce revenue by $1.14 million. Setting a harvest guideline above the level derived could generate increased landings (though that is unlikely with current market conditions) but at an unacceptable level of risk of economic dislocation (if northern fisheries expanded too quickly) and ecological difficulties in the future (if the stock is less resilient than thought or the northern component of the stock is more important than is now known).

This proposed rule does not duplicate overlap, or conflict with other Federal rules. There are no reporting, recordkeeping, or other compliance requirements in the proposed rule.

Approximately 100 vessels participate in the CPS fishery off the U.S. West Coast. All of these vessels would be considered small businesses under the SBA standards. Therefore, there would be no economic impacts resulting from disproportionality between small and large vessels under the proposed action. A limited entry fishery occurs south of 39° N. Lat. A total of 65 vessels are permitted to participate in the limited entry fishery. An open access fishery exists north of 39° N. Lat. in which about 15 vessels participate. These are also small businesses. Vessels harvesting CPS for bait are also small businesses but are unregulated under the FMP.

Fisheries for Pacific sardine occur from Monterey, CA, south throughout the year and off Oregon and Washington in Summer. Since 2000, most of the CPS fleet has obtained an average of 30 percent of its total revenue from Pacific sardine. This has occurred during a period in which there has been an increase in demand for market squid, as well as new markets for sardine that developed since 2000. The average annual revenue from Pacific sardine has been $9.1 million (2002 dollars) during the last 3 years (2000 through 2002). This is the revenue the industry might expect on average given the amount of sardine available for harvest and market demand. As of October 14, 2003, 65,000 mt had been landed. Based on historical landings, landings may reach 90,000 mt, which is below the harvest guideline. Known factors that have influenced the landings in 2003 is an outbreak of domoic acid in California, which makes Pacific sardine unmarketable, and the availability of market squid in the summer, which provides higher revenue to the fishing industry than sardine. If the harvest guideline is reached during the 2004 fishing season, there will be an increase of $3.7 million in ex-vessel revenue above that of the 2003 fishing season. With a harvest guideline of 122,747 mt and an average ex-vessel price of $114.00 per ton, potential revenue could be $14.0 million. The harvest guideline for the 2003 fishing season was 110,908 mt; however, landings are expected to reach only 90,000 or 95,000 mt by December 31, 2003. Market demand has not supported increased harvests, for the reasons noted above. The proposed action will yield potentially higher revenue (about $3 million) from Pacific sardine than the current year if the full harvest guideline is taken and prices remain constant.

Under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq. ), the United States has exclusive management authority over all living marine resources found within the Exclusive Economic Zone (EEZ). The management of these marine resources found within the EEZ with the exception of sea birds and some marine mammals, is vested in the Secretary of Commerce (Secretary). Eight Regional Fishery Management Councils prepare fishery management plans which are reviewed for approval and implementation by the Secretary. The Western Pacific Council has the responsibility to prepare fishery management plans for fishery resources in the EEZ of the Western Pacific Region.

The pelagic fisheries that occur in the EEZ and on the high seas of the Western Pacific Region have been managed under the Fishery Management Plan for the Pelagics Fisheries of the Western Pacific Region (FMP) and its amendments since 1986. Managed resources include both marketable (primarily billfish and tuna), and non-marketable (primarily sharks) species. Fisheries managed include pelagic longline, troll, handline, pole-and-line (bait boat), and charter boat fisheries. Management measures employed include gear restrictions, vessel size limitations, time and area closures, access limitations and other measures.

The largest fishery managed under the FMP is the Hawaii-based, limited-access pelagic longline fishery. Regulations imposed on this fishery in 2001 eliminated the “shallow set” component of this fishery that targeted swordfish. The remaining component of this fishery is a “deep set” tuna-targeting fishery. On August 31, 2003, the Memorandum Opinion issued in Hawaii Longline Assoc. v. NMFS (D. D.C., Civ No. 01-765), invalidated the June 12, 2002 (67 FR 40232) rules as well as the November 15, 2002, Biological Opinion for Pelagic Fisheries of the Western Pacific and the associated incidental take statement. On October 6, 2003, the Court stayed the August 31, 2003 Order, and reinstated the regulations and BiOp until April 1, 2004 (D.D.C. Civ No. 01-0765).

The October 17, 2003, NOI (68 FR. 59771) highlighted a number of issues concerning pelagic fisheries management in the Western Pacific Region. Particular issues mentioned included pelagic longline fisheries interactions with protected species, billfish-related issues, fish aggregation devices, and an emerging industrial-scale squid fishery. However, as a result of Court orders affecting management of the fishery, the Council and NMFS are considering management measures and regulations that must be in place by April 1, 2004.

Consequently, two SEISs, both supplementing the March 30, 2001 Final EIS on the Fishery Management Plan for Pelagic Fisheries of the Western Pacific Region, will be developed. The SEIS being developed under alternative procedures will address the Hawaii-based longline fishery and it's potential impact on endangered and threatened sea turtle populations. The other issues mentioned in the October 17, 2003, NOI, such as seabird interactions, billfish-related issues, fish aggregation devices, and industrial-scale squid fishing, will be addressed in a separate SEIS prepared in accord with standard NEPA procedures.

Without compressing the schedule, the agency is not able to comply with prescribed time periods required by NEPA. Specifically, based on a schedule accommodating all regulatory requirements, the agency is not able to provide the full public comment period of 45 days for a draft SEIS (40 CFR 1506.10(2)(d)), or the full review period for the final SEIS prior to the agency decision (40 CFR 1506.10(b)(1-2)).

Consequently, NMFS proposed alternative procedures to CEQ. As a matter of practice, the CEQ looks at three factors in the context of requests for alternative procedures for a SEIS(s): (a) Whether the agency can show that it faces extremely difficult timing considerations that it could not have reasonably foreseen; (b) whether considerations of reflected national policy concerns outweigh any burden to the public caused by a deviation from the normal process; and (c) whether the agency is committed to providing effective alternative means for insuring public and agency review. NMFS satisfied the CEQ's criteria for alternative procedures and on November 20, 2003, the CEQ approved NMFS's request. The alternative procedures include that the standard 45-day public comment period for the SEIS will be shortened to 30 days, and the standard 30-day review period between the final SEIS and the agency's Record of Decision may be reduced by as much as 26 days.

As part of the alternative procedures for public input, the Council and NMFS have coordinated several opportunities for public involvement in the NEPA process. Examples include public scoping meetings conducted throughout the Western Pacific Region from October 21, 2003 through December 4, 2003. In addition, opportunities for public involvement and comment have been solicited at several meetings, including the 119th Council meeting, 120th Council meeting, the 121st Council meeting, and at a series of public meetings convened by the Council's Sea Turtle Conservation Special Advisory Committee.

The SEIS will analyze, among other things, additional alternatives that include an abolition or modification to the southern area closure; the restoration of the swordfish fishery at some reduced level; mitigation measures such as circle hooks and mackerel bait known to reduce interaction rates of sea turtles with longline gear; international conservation measures to increase sea turtle recruitment; and an analysis on the potential impact of such alternatives on the continued existence of endangered and threatened sea turtles.

Groundfish fisheries in the BSAI are governed by Federal regulations at 50 CFR part 679 that implement the FMP. The Council prepared the FMP and NMFS approved it under the Magnuson-Stevens Fishery Conservation and Management Act. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify annually the total allowable catch (TAC) for each target species and the “other species” category, the sum of which must be within the optimum yield range of 1.4 million to 2.0 million metric tons (mt) ( see § 679.20(a)(1)(i)). Regulations at § 679.20(c)(1) further require NMFS to solicit public comment on proposed annual TACs and apportionments thereof, PSC allowances and prohibited species quota (PSQ) reserves established by § 679.21, seasonal allowances of pollock TAC, including pollock Community Development Quota (CDQ), and CDQ reserve amounts established by § 679.20(b)(1)(iii) and to publish proposed specifications in the Federal Register . The proposed specifications set forth in Tables 1 through 13 of this action satisfy these requirements. For 2004, the proposed sum of TACs is 1,998,443 mt.

Under § 679.20(c)(3), NMFS will publish the final annual specifications for 2004 after (1) considering comments received within the comment period (see DATES), (2) consulting with the Council, which will occur at its next meeting beginning the week of December 8, 2003, and (3) considering new information presented in the EA and the final 2003 SAFE reports prepared for the 2004 groundfish fisheries.

With some exceptions, regulations at § 679.20(c)(2)(ii) require that one-fourth of each proposed initial TAC (ITAC) amount and apportionment thereof, one-fourth of each CDQ reserve established under § 679.20(b)(1)(iii), and one-fourth of each proposed PSC allowance established under § 679.21, become available at 0001 hours, Alaska local time (A.l.t.), January 1, on an interim basis and remain in effect until superseded by the final specifications. Regulations at § 679.20(c)(2)(ii) (A) and (B) require that the proposed first seasonal allowance of non-CDQ and CDQ pollock, Pacific cod and Atka mackerel becomes available at 0001 hours, A.l.t., January 1 on an interim basis and remains in effect until superseded by the final specifications. Regulations at § 679.20(c)(2)(ii) do not provide for an interim specification for either the hook-and-line and pot gear sablefish CDQ reserve or for sablefish managed under the Individual Fishing Quota (IFQ) program. Interim TAC specifications and apportionments thereof for the 2004 fishing year will be published in a separate Federal Register notice.

In October 2003, the Council discussed Aleutian Islands pollock fishery management, but made no recommendation to close or open the fishery in 2004. The Council set the proposed Aleutian Islands pollock TAC at 2003 amounts, which is for incidental catch only. The Council may consider apportionment of the TAC of several rockfish species in the Aleutian Islands subarea among the Eastern, Central, and Western Aleutian Districts and separating the shortraker and rougheye rockfish TAC.

Amendment 77 to the FMP, approved by the Secretary of Commerce on October 20, 2003, provides for apportioning the BSAI Pacific cod TAC among hook-and-line and pot gears sector. Table 4 lists the proposed 2004 allocations and seasonal apportionments of the Pacific cod ITAC based on regulations that would implement Amendment 77. For more information on Amendment 77, see the proposed rule at 68 FR 49416, August 18, 2003. A final rule implementing Amendment 77 was published on December 1, 2003 68 FR 67056 and will be effective by January 1, 2004.

The proposed ABC levels are based on the best available biological and socioeconomic information, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. In general, the development of ABCs and overfishing levels (OFLs) involves sophisticated statistical analyses of fish populations and is based on a successive series of 6 levels, or tiers, of reliable information available to fishery scientists.

The best information currently available is set forth in Appendix A of the final SAFE report for the 2003 BSAI groundfish fisheries dated November 2002 ( see ADDRESSES ). Information on the status of stocks will be updated with the 2003 survey results and reconsidered by the Plan Team in November 2003 for the 2003 SAFE reports. The final harvest specifications will be based on the 2003 SAFE reports.

In October 2003, the Scientific and Statistical Committee (SSC), Advisory Panel (AP), and Council reviewed the Plan Team's preliminary recommendations to project 2003 biomass amounts, as identified in the 2002 SAFE, for the proposed 2004 ABC, OFL, and TAC amounts. The SSC concurred with the Plan Team's recommendations, which estimates the proposed ABCs and OFLs by using a projection of 2003 groundfish harvest with the November 2002 SAFE report model projections of 2003 ABCs for groundfish stocks managed at tiers 1-3. The Council adopted the OFL and ABC amounts recommended by the SSC (Table 1). The Council also adopted the AP's recommendation that the 2004 proposed TACs be set equal to the 2003 TACs, except for sablefish, Pacific ocean perch, and Atka mackerel. Recognizing anticipated changes in the ABCs for these species, the AP recommended and the Council adopted a decrease in the TACs for sablefish, Pacific ocean perch, and Atka mackerel. The Council adopted the AP's recommendation to use the 2003 PSC allowances for 2004. The Council will reconsider these amounts in December 2003, after the Plan Team incorporates new status of stocks information into a final SAFE report for the 2004 BSAI groundfish fishery. None of the Council's TAC recommendations for 2004 exceed the recommended ABC for any species category. Therefore, NMFS finds that the Council's recommendations for proposed 2004 OFLs, ABCs, and TACs are consistent with the best available information on the biological condition of the groundfish stocks.

Table 1 lists the proposed 2004 OFL, ABC, and TAC amounts for groundfish in the BSAI. The proposed apportionment of TAC amounts among fisheries and seasons is discussed below.

Regulations at § 679.20(b)(1)(i) require that 15 percent of the TAC for each target species or species group, except for pollock and the hook-and-line and pot gear allocation of sablefish, be placed in a non-specified reserve. Regulations at § 679.20(b)(1)(iii) require that one half of each TAC amount placed in the non-specified reserve (7.5 percent), with the exception of squid, be allocated to the groundfish CDQ reserve and that 20 percent of the hook-and-line and pot gear allocation of sablefish be allocated to the fixed gear sablefish CDQ reserve. Regulations at § 679.20(a)(5)(i)(A) specify how the pollock TAC apportioned to the Bering Sea Subarea, after subtraction of the 10 percent CDQ reserve under § 679.31(a), will be allocated. With the exception of the hook-and-line and pot gear sablefish CDQ reserve, the CDQ reserves are not further apportioned by gear. Regulations at § 679.21(e)(1)(i) also require that 7.5 percent of each PSC limit, with the exception of herring, be withheld as a PSQ reserve for the CDQ fisheries. Regulations governing the management of the CDQ and PSQ reserves are set forth at §§ 679.30 and 679.31.

Under § 679.20(a)(5)(i)(A)( 1 ), NMFS allocates a pollock ICA of 3.5 percent of the pollock TAC after subtraction of the 10 percent CDQ reserve. This allowance is based on an examination of the incidental catch of pollock in non-pollock target fisheries from 1998 through 2003. During this 6-year period, the incidental catch of pollock ranged from a low of 2 percent in 2003, to a high of 5 percent in 1999, with a 6-year average of 3 percent. Because these incidental percentages are contingent on the relative amounts of other groundfish TACs, NMFS will be better able to assess the ICA amount when the Council makes final ABC and TAC amount recommendations in December.

The remainder of the non-specified reserve is not designated by species or species group, and any amount of the reserve may be reapportioned to a target species or the “other species” category during the year, providing that such reapportionments do not result in overfishing, see § 679.20(b)(1)(ii).

Regulations at § 679.20(a)(5)(i)(A)( 1 ) require that 10 percent of the BSAI pollock TAC be allocated as a directed fishing allowance to the CDQ program. The remainder of the BSAI pollock TAC, after the subtraction of an allowance for the incidental catch of pollock by vessels, including CDQ vessels, harvesting other groundfish species, is allocated as follows: 50 percent to catcher vessels harvesting pollock for processing by the inshore component, 40 percent to catcher/processors and catcher vessels harvesting pollock for processing by catcher/processors in the offshore component, and 10 percent to catcher vessels harvesting pollock for processing by motherships in the offshore component. These proposed amounts are listed in Table 2.

The AFA also contains several specific requirements concerning pollock and pollock allocations under § 679.20(a)(5)(i)(A)( 4 ). First, 8.5 percent of the pollock allocated to the offshore AFA catcher/processor sector will be available for harvest by AFA catcher vessels with offshore sector endorsements, unless the Regional Administrator receives a cooperative contract that provides for the distribution of harvest between catcher/processors and catcher vessels in a manner agreed to by all members. Second, AFA catcher/processors not listed in the AFA are limited to harvesting not more than 0.5 percent of the pollock allocated to the catcher/processor sector. Table 2 lists the proposed 2004 allocations of pollock TAC as prescribed by the AFA. Other provisions of the AFA, including inshore pollock cooperative allocations and listed catcher/processor and catcher vessel harvesting sideboard limits, are found in Tables 8 through 13.

Table 2 also lists seasonal apportionments of pollock and harvest limits within the Steller Sea Lion Conservation Area (SCA). The harvest within the SCA, as defined at § 679.22(a)(7)(vii), is limited to 28 percent of the annual directed fishing allowance (DFA) until April 1. The remaining 12 percent of the annual DFA allocated to the A season may be taken outside of the SCA before April 1 or inside the SCA after April 1. If the 28 percent of the annual DFA is not taken inside the SCA before April 1, the remainder is available to be taken inside the SCA after April 1. The A season pollock SCA harvest limit will be apportioned to each industry sector in proportion to each sector's allocated percentage of the DFA as set forth in the AFA. These proposed amounts, by sector, are listed in Table 2.

Under § 679.20(a)(8)(i), up to 2 percent of the Eastern Aleutian District and the Bering Sea subarea Atka mackerel ITAC may be allocated to the jig gear fleet. The amount of this allocation is determined annually by the Council based on several criteria, including the anticipated harvest capacity of the jig gear fleet. The Council recommended and NMFS proposes that 1 percent of the Atka mackerel ITAC in the Eastern Aleutian District and the Bering Sea subarea be allocated to the jig gear fleet in 2004. Based on an ITAC of 8,851 mt, the jig gear allocation is 89 mt.

Regulations implementing Steller sea lion protection measures at § 679.20(a)(8)(ii)(A) apportion the Atka mackerel ITAC into two equal seasonal allowances. After subtraction of the jig gear allocation, the first allowance is made available for directed fishing from January 1 to April 15 (A season), and the second seasonal allowance is made available from September 1 to November 1 (B season)(Table 3).

Under § 679.20(a)(8)(ii)(C)( 1 ), the Regional Administrator will establish a harvest limit area (HLA) limit of no more than 60 percent of the seasonal TAC for the Western and Central Aleutian Districts. A lottery system is used for the HLA Atka mackerel directed fisheries to reduce the amount of daily catch in the HLA by about half and to disperse the fishery over two areas, see § 679.20(a)(8)(iii).

Under § 679.20(a)(7)(i)(A), 2 percent of the Pacific cod ITAC is allocated to vessels using jig gear, 51 percent to vessels using hook-and-line or pot gear, and 47 percent to vessels using trawl gear. Under regulations at § 679.20(a)(7)(i)(B), the portion of the Pacific cod TAC allocated to trawl gear is further allocated 50 percent to catcher vessels and 50 percent to catcher/processors. Under regulations at § 679.20(a)(7)(i)(C)(1), a portion of the Pacific cod allocated to hook-and-line or pot gear is set aside as an ICA of Pacific cod in directed fisheries for groundfish using these gear types. Based on anticipated incidental catch in these fisheries, NMFS proposes an ICA of 500 mt. The remainder of Pacific cod is further allocated to vessels using hook-and-line or pot gear as the following DFAs: 80 percent to hook-and-line catcher/processors, 0.3 percent to hook-and-line catcher vessels, 18.3 percent to pot gear vessels, and 1.4 percent to catcher vessels under 60 feet (18.3 m) length overall (LOA) using hook-and-line or pot gear. The final rule implementing Amendment 77 will split the pot gear sector share of the DFA: 3.3 percent to pot catcher/processors and 15 percent to pot catcher vessels. A final rule implementing Amendment 77 was published on December 1, 2003 68 FR 67086 and will be effective by January 1, 2004.

Due to concerns about the potential impact of the Pacific cod fishery on Steller sea lions and their critical habitat, the Pacific cod fisheries are dispersed by the apportionment of the ITAC into seasonal allowances ( see §§ 679.20(a)(7)(iii) and 679.23(e)(5)). For most non-trawl gear the first seasonal allowance, 60 percent of the ITAC, is made available for directed fishing from January 1 to June 10, and the second seasonal allowance, 40 percent of the ITAC, is made available from June 10 to December 31. The regulations implementing Amendment 77 will establish three seasonal allowances for jig gear: the first seasonal allowance, 40 percent of the ITAC, is January 1 to April 30; the second seasonal allowance, 20 percent of the ITAC, is April 1 to August 31; and the third seasonal allowance, 40 percent of the ITAC, is August 31 to December 31. Amendment 77 will also allow the reallocation of any projected unused portion of a seasonal allowance of Pacific cod for vessels using jig gear to catcher vessels less than 60 ft (18.3 m) LOA using hook-and-line or pot gear. No seasonal harvest constraints are imposed on the Pacific cod fishery prosecuted by catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear. For trawl gear, the first season is January 20 to April 1 and is allocated 60 percent of the ITAC; the second season, April 1 to June 10, and the third season, June 10 to November 1, are each allocated 20 percent of the ITAC. The trawl catcher vessel allocation is further allocated as 70 percent in the first season, 10 percent in the second season and 20 percent in the third season. The trawl catcher/processor allocation is allocated 50 percent in the first season, 30 percent in the second season, and 20 percent in the third season. Table 4 lists the proposed 2004 allocations and seasonal apportionments of the Pacific cod ITAC. NMFS and the Council propose that any unused portion of a seasonal Pacific cod allowance will become available at the beginning of the next seasonal allowance.

Under § 679.20(a)(9), the ITAC of shortraker rockfish and rougheye rockfish specified for the Aleutian Islands subarea is allocated 30 percent to vessels using non-trawl gear and 70 percent to vessels using trawl gear. Based on a proposed 2004 ITAC of 706 mt, the trawl allocation is 494 mt and the non-trawl allocation is 212 mt.

Regulations at § 679.20(a)(4)(iii) and (iv) require that sablefish TACs for the Bering Sea and Aleutian Islands subareas be allocated between trawl and hook-and-line or pot gear. Gear allocations of the TACs for the Bering Sea subarea are 50 percent for trawl gear and 50 percent for hook-and-line or pot gear and for the Aleutian Islands subarea are 25 percent for trawl gear and 75 percent for hook-and-line or pot gear. Regulations at § 679.20(b)(1)(iii)(B) require that 20 percent of the hook-and-line and pot gear allocation of sablefish be apportioned to the CDQ reserve. Additionally, regulations at § 679.20(b)(1)(iii)(A) require that 7.5 percent of the trawl gear allocation of sablefish (one half of the reserve) be apportioned to the CDQ reserve. Proposed 2004 gear allocations of the sablefish TAC and CDQ reserve amounts are specified in Table 5.