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-201-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-201-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on certain Airbus Model A319, A320, and A321 series airplanes. The DGAC advises that, during routine maintenance on the actuator of a thrust reverser blocker door, the chrome plating on the piston rod was found to extend up to the hydraulic feed holes. The actuator supplier discovered this quality concern and identified numerous suspect units during rework. The overextended chrome plating could contribute to decreased fatigue capability of the actuator and, in combination with other misrigging problems, could result in an inadvertent thrust reverser door deployment and consequent reduced controllability of the airplane.

The actuator manufacturer has issued Rohr CFM56-5A/-5B Service Bulletin RA32078-112, Revision 1, dated February 6, 2002, which describes procedures for inspecting the actuator (part number D23090000-6) of the thrust reverser blocker door to identify the serial number, and replacing affected actuators with reworked actuators. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition. The DGAC classified this service bulletin as mandatory and issued French airworthiness directive 2002-337(B) R1, dated July 24, 2002, to ensure the continued airworthiness of these airplanes in France.

These airplane models are manufactured in France 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 DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, 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 require accomplishment of the actions specified in the service bulletin described previously, except as discussed below.

The applicability of the French airworthiness directive excludes airplanes on which the particular actuator has never been overhauled by TRW—Lucas Repair Center. U.S. operators are required to maintain records of only the date of overhaul—not the identity of the facility doing the overhaul. Therefore, this proposed AD would require inspection of all actuators having the particular part number, unless the maintenance records positively determine that TRW has never overhauled that actuator.

We estimate that 551 airplanes of U.S. registry would be affected by this proposed AD. It would take about 4 work hours per airplane to identify the actuator part numbers, 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 $143,260, or $260 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 plan, gain access and close up, or perform 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:

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-67-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-67-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Departamento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil, notified the FAA that an unsafe condition may exist on certain EMBRAER Model EMB-135 and -145 series airplanes. The DAC advises that it has received reports of degradation in the performance of the VOR/ILS/MB system due to the presence of moisture, dirt, and corrosion between the base and the support of the glide slope antenna and in the electrical connectors of the navigation system. This condition, if not corrected, could result in the display of erroneous or misleading information to the flight crew in the cockpit.

EMBRAER has issued Service Bulletin 145-34-0069, dated March 28, 2002, which describes procedures for an inspection of the base and the support surfaces of the glide slope antenna, and of certain electrical connectors of the navigation system; and applicable corrective actions. The applicable corrective actions include cleaning the glide slope antenna base and support surfaces, repairing damage, applying silicone grease to the electrical connectors, and reinstalling the glide slope antenna with a new conductive gel gasket. The DAC classified this service bulletin as mandatory and issued Brazilian airworthiness directive 2003-01-02R1, effective March 12, 2003, 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 the FAA informed of the situation described above. The FAA has 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 require accomplishment of the actions specified in the service bulletin described previously.

The FAA estimates that 365 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 2 work hours per airplane to accomplish the proposed actions, 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 $47,450, or $130 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 manufacturer may cover the cost of replacement parts associated with this proposed AD, subject to warranty conditions.

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:

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-251-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-251-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received a report indicating that the airplane manufacturer discovered, during production, fore and aft misalignment of cockpit floor seat tracks at the captain's and/or first officer's seat assembly on some McDonnell Douglas DC-9-82 airplanes. The seat track misalignment was enough to prevent full engagement of the seat locking pins into the seat track detent holes. This condition, if not corrected, could result in uncommanded movement of the captain's and first officer's seats during takeoff and landing, which could result in interference with the operation of the airplane and consequent temporary loss of control of the airplane.

The subject areas on certain McDonnell Douglas Model DC-9-83 airplanes and Model MD-88 airplanes are identical to those on the affected McDonnell Douglas DC-9-82 airplanes. Therefore, all of these models may be subject to the same unsafe condition.

The FAA has reviewed and approved Boeing Alert Service Bulletin MD80-25A367, Revision 01, dated June 14, 2002, which describes procedures for a detailed inspection of the captain's and first officer's seat track locking pins for sufficient engagement; and corrective actions, if necessary. The corrective actions include the following actions:

• Adjusting/repairing the locking mechanism and/or replacing the lockpin with a new lockpin;

• Performing a detailed inspection of the lockpins for wear, and replacing lockpins with new lockpins, if necessary; and

• Performing a detailed inspection of the seat track for proper alignment, and repairing the seat track, if necessary.

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 1,166 airplanes of the affected design in the worldwide fleet. The FAA estimates that 672 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, 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 $43,680 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. Manufacturer warranty remedies may be available for labor costs associated with this proposed AD. As a result, the costs attributable to the proposed AD may be less than stated above.

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:

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-183-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-183-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on certain Airbus Model A330-202, -203, -223, and -243 airplanes, and A330-300 series airplanes. The DGAC advises that, during fatigue testing, cracking initiated and propagated in the center box junction and upper section of the fuselage between frame (FR) 40.3 and FR 45 at stringers 26 through 29. Such cracking, if not corrected, could result in reduced structural integrity of the fuselage.

Airbus has issued Service Bulletin A330-53-3126, Revision 01, dated March 19, 2003, which describes procedures for modification of the center box junction and upper bent sections of the center fuselage, between FR 40.3 and FR 45 at stringers 26 through 29, on the left and right sides of the airplane, and related corrective action. This modification includes performing rotating probe inspections for cracking of certain fastener holes, drilling and reaming certain fastener holes (as a follow-on action for uncracked fastener holes), cold-working certain fastener holes, and replacing certain existing fasteners with improved fasteners. The service bulletin also specifies contacting Airbus for repair if any cracking is found during accomplishment of the modification. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition. The DGAC classified this service bulletin as mandatory and issued French airworthiness directive 2002-528(B), dated October 30, 2002, to ensure the continued airworthiness of these airplanes in France.

These airplane models are manufactured in France 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 DGAC has kept us informed of the situation described above. We have examined the findings of the DGAC, reviewed all available information, and determined that this 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 require accomplishment of the actions specified in the service bulletin described previously, except as discussed below.

For Model A330-301, -322, -321, -341, and -342 airplanes, the French airworthiness directive and the service bulletin specify doing the modification of the center box junction and upper sections of the center fuselage before the accumulation of 13,500 flight cycles or 39,200 flight hours “since the first flight of the airplane, whichever is first.” For Model A330-202, -203, -223, -243, -323, and -343 airplanes, the modification is to be done before the accumulation of 11,400 flight cycles or 33,100 flight hours “since the first flight of the airplane, whichever is first.”

This proposed AD would require accomplishment of the modification at the following times: For Model A330-301, -322, -321, -341, and -342 airplanes, “Before the accumulation of 13,500 total flight cycles or 39,200 total flight hours since the date of issuance of the original Airworthiness Certificate or the date of issuance of the Export Certificate of Airworthiness, whichever is first.” For Model A330-202, -203, -223, -243, -323, and -343 airplanes, “Before the accumulation of 11,400 total flight cycles or 33,100 total flight hours since the date of issuance of the original Airworthiness Certificate or the date of issuance of the Export Certificate of Airworthiness, whichever is first.” These compliance times include a grace period of 6 months after the effective date of the AD. This decision is based on our determination that “since the first flight of the airplane” may be interpreted differently by different operators. We find that our proposed terminology is generally understood within the industry and records will always exist that establish these dates with certainty. In addition, we have determined that a 6-month grace period will ensure an acceptable level of safety and is an appropriate interval of time wherein the modification can be accomplished during scheduled maintenance intervals for the majority of affected operators.

The service bulletin specifies that operators may contact Airbus for disposition of certain repair conditions, but this proposed AD would require operators to repair those conditions per a method approved by either the FAA or the DGAC (or its delegated agent). In light of the type of repair that would be required to address the unsafe condition, and consistent with existing bilateral airworthiness agreements, we have determined that a repair approved by either the FAA or the DGAC would be acceptable for compliance with this proposed AD.

The FAA estimates that 9 airplanes of U.S. registry would be affected by this proposed AD, that it would take about 67 work hours per airplane to do the proposed modification, and that the average labor rate is $65 per work hour. Required parts would cost about $1,420 per airplane. Based on these figures, the cost impact of the modification proposed by this AD on U.S. operators is estimated to be $51,975, or $5,775 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:

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-163-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-163-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, notified the FAA that an unsafe condition may exist on certain Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. TCCA advises that it has received three reports of chafing of the electrical cables of the spoiler and brake pressure sensor unit (BPSU) on both sides of the wing root. The chafing condition occurred where electrical cables (harnesses) are routed through two misaligned adjacent lightening holes in the wing box of both wings at station 545. The condition can exist due to tight routing of the harness in this location and movement of the harnesses due to wing flex and vibration. These conditions, if not corrected, could result in loss of flight control system and consequent reduced controllability of the airplane.

Bombardier has issued Alert Service Bulletin A601R-27-101, Revision ‘A’, dated October 26, 2001. The service bulletin describes, among other actions, procedures for performing a general visual inspection of the electrical harnesses of the spoiler and the BPSU on both sides of the wing root to detect any chafing or wire damage, and repairing or replacing any damaged or chafed harness or wire with a new harness, as applicable. TCCA classified this service bulletin as mandatory and issued Canadian airworthiness directive CF-2003-14, dated May 15, 2003, to ensure the continued airworthiness of these airplanes in Canada.

This airplane model is manufactured in Canada and is 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, TCCA has kept the FAA informed of the situation described above. The FAA has examined the findings of TCCA, 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 require accomplishment of the actions specified in the service bulletin described previously, except as discussed below.

Operators should note that, although the Accomplishment Instructions of the referenced service bulletin describe procedures for completing and submitting to the manufacturer a comment sheet related to service bulletin quality and a sheet recording compliance with the service bulletin, this proposed AD would not require those actions. The FAA does not need this information from operators.

This is considered to be interim action until final action is identified, at which time the FAA may consider further rulemaking.

The FAA estimates that 191 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, 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 $12,415, or $65 per airplane, per inspection cycle.

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.

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 should 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 document may be changed in light of the comments received.

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 mailed comments submitted in response to this proposal must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2001-SW-33-AD.” The postcard will be date stamped and returned to the commenter.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an AD for Eurocopter Model SA-365N, SA-365N1, AS-365N2, AS 365 N3, SA-366G1 helicopters was published in the Federal Register on December 18, 2002 (67 FR 77444). That proposal would have required, within 50 hours time-in-service (TIS), inspecting the frame for the correct edge distance of the four attachment holes of the stretcher support and for a crack, and repairing the frame, if necessary. The repair was to be approved by the Manager, Regulations Group, Rotorcraft Directorate, FAA. That NPRM was prompted by a quality control check that revealed some stretcher attachment holes were improperly located on the frame where there was insufficient edge distance. That condition, if not corrected, could result in failure of the frame due to a crack at the stretcher support attachment holes, loss of a passenger door, damage to the rotor system, and subsequent loss of control of the helicopter.

Since the issuance of that NPRM, we have decided to allow the use of U.S.-available alternative fasteners and materials. Therefore, we determined that this proposal should reference an Addendum to Eurocopter France AS 365 Alert Service Bulletin 53.00.43, dated January 31, 2001, that provides for use of U.S.-available alternative fasteners and materials. Additionally, we have determined that it is unnecessary to require installation of a reinforcing angle, and it has been replaced with a 550-hour repetitive inspection for those helicopters that have an edge distance on the frame of less than 5mm, are not cracked, and have not been repaired.

Since this change expands the scope of the originally proposed rule, we have 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. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. Because we have now included this material in part 39, we no longer need to include it in each individual AD.

The FAA estimates that 45 helicopters of U.S. registry would be affected by this proposed AD, that it would take approximately 2 work hours to visually inspect each helicopter and 10 work hours to repair an estimated 10 helicopters to correct edge distance only and 12 work hours to repair edge distance and cracks for an estimated 5 helicopters, and that the average labor rate is $65 per work hour. Required parts would cost approximately $200 per helicopter for the repair of the 15 helicopters. Based on these figures, the total cost impact of the proposed AD on U.S. operators is estimated to be $19,250, assuming each operator repairs the helicopter rather than performs the repetitive inspection.

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:

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 2000-NM-70-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. 2000-NM-70-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 all Airbus Model A319, A320, and A321 series airplanes, was published as a notice of proposed rulemaking (NPRM) in the Federal Register on November 3, 2000 (65 FR 66197). That NPRM would have required operators to revise the Airworthiness Limitations section (ALS) of the Instructions for Continued Airworthiness to incorporate service life limits for certain items and inspections to detect fatigue cracking, accidental damage, or corrosion in certain structures. That NPRM was prompted by issuance of Revision 1 to section 9-1 (Life Limited/Monitored Parts) of the Airbus Industrie A319/A320/A321 Maintenance Planning Document, which specifies new or more restrictive life limits. That NPRM was also prompted by issuance of Issue 3 of the Airbus Industrie Airworthiness Limitations Items (ALI) document AI/SE-M4/95A.0252/96, dated May 27, 1999, which specifies new or more restrictive compliance times for structural inspection. Fatigue cracking, accidental damage, or corrosion in certain structure, if not corrected, could result in reduced structural integrity of the airplanes.

Since issuance of the previous proposal, the Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, has issued French airworthiness directives F-2004-018, dated February 4, 2004; and F-2004-032, dated February 18, 2004. These French ADs mandate Revision 6 the ALS of the Instructions for Continued Airworthiness, which introduces new and more restrictive life limits, and new and more restrictive inspections and inspection intervals.

Airbus has issued Section 9-1, “Life Limits/Monitored Parts,” Revision 06, dated June 13, 2003, of Airbus A318/A319/A320/A321 Maintenance Planning Document (MPD), which specifies new and more restrictive life limits for certain items. Airbus has also issued Section 9-2, “Airworthiness Limitation Items,” Revision 06, dated June 13, 2003, of the A318/A319/A320/A321 MPD; and Airbus A318/A319/A320/A321 ALI document, AI/SE-M4/95A.0252/96, Issue 6, dated May 15, 2003; which specify new and more restrictive inspections for significant structural items (SSIs). Accomplishment of the actions specified in these documents is intended to adequately address the identified unsafe condition.

Since this proposed AD would mandate adherence to the new and more restrictive life limits, and new and more restrictive inspections; this proposed action would expand the scope of the earlier proposed AD. Therefore, the FAA has determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.

We have changed the compliance time for revising the ALS of the Instructions for Continued Airworthiness from 30 days to 2 months. This change reflects the compliance time listed in French airworthiness directive F-2004-18, dated February 4, 2004, and in French airworthiness directive F-2004-032, dated February 18, 2004.

In accordance with airworthiness standards requiring “damage tolerance assessments” for transport category airplanes (§ 25.1529 of the Federal Aviation Regulations (14 CFR 25.1529), and the Appendices referenced in that section), all products certificated to comply with that section must have Instructions for Continued Airworthiness (or, for some products, maintenance manuals) that include an ALS. That section must set forth:

• Mandatory replacement times for structural components,

• Structural inspection intervals, and

• Related approved structural inspection procedures necessary to show compliance with the damage-tolerance requirements.

Compliance with the terms specified in the ALS is required by sections 43.16 (for persons maintaining products) and 91.403 (for operators) of the Federal Aviation Regulations (14 CFR 43.16 and 91.403).

In order to require compliance with these inspection intervals and life limits, the FAA must engage in rulemaking, namely the issuance of an AD. For products certificated to comply with the referenced part 25 requirements, it is within the authority of the FAA to issue an AD requiring a revision to the ALS that includes reduced life limits, or new or different structural inspection requirements. These revisions then are mandatory for operators under section 91.403(c) of the Federal Aviation Regulations (14 CFR 91.403), which prohibits operation of an airplane for which airworthiness limitations have been issued unless the inspection intervals specified in those limitations have been complied with.

After that document is revised, as required, and the AD has been fully complied with, the life limit or structural inspection change remains enforceable as a part of the airworthiness limitations. (This is analogous to ADs that require changes to the Limitations Section of the Airplane Flight Manual.)

Requiring a revision of the airworthiness limitations, rather than requiring individual inspections, is advantageous for operators because it allows them to record AD compliance status only once—at the time they make the revision—rather than after every inspection. It also has the advantage of keeping all airworthiness limitations, whether imposed by original certification or by AD, in one place within the operator's maintenance program, thereby reducing the risk of non-compliance because of oversight or confusion.

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 airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. Because we have now included this material in part 39, we no longer need to include it in each individual AD. Therefore, paragraph (d) and Note 1 of the original NPRM are not included in this supplemental NPRM, 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 605 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 revision to the ALS, 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 $39,325, 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:

A notice of proposed rulemaking and notice of public hearing that appeared in the Federal Register on November 21, 2003 (68 FR 65645), announced that a public hearing was scheduled for March 23, 2004 at 10 a.m., in the auditorium of the Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC. The subject of the public hearing is proposed regulations under section 461 of the Internal Revenue Code. The public comment period for these proposed regulations expired on February 19, 2004.

The notice of proposed rulemaking and notice of public hearing, instructed those interested in testifying at the public hearing to submit a request to speak and an outline of topics to be addressed by March 2, 2004. As of March 8, 2004, no one has requested to speak. Therefore, the public hearing scheduled for March 23, 2004 is cancelled.

Temporary regulations in the Rules and Regulations section of this issue of the Federal Register amend the Income Tax Regulations (26 CFR part 1) relating to section 45D. The temporary regulations provide guidance for taxpayers claiming the new markets tax credit under section 45D. The text of those regulations also serves as the text of these proposed regulations. The preamble to the temporary regulations explains the amendments.

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a new collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply.

Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. Comments are requested on all aspects of the proposed regulations. In addition, the IRS and Treasury Department specifically request comments on the clarity of the proposed regulations and how they can be revised to be more easily understood. All comments will be available for public inspection and copying.

A public hearing has been scheduled for Wednesday, June 2, 2004, at 10 a.m. in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington DC. All visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area at the Constitution Avenue entrance more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble.

The rules of 26 CFR 601.601(a)(3) apply to the hearing.

Persons who wish to present oral comments at the hearing must submit written comments and an outline of the topics to be discussed and the time to be devoted to each topic (preferably a signed original and eight (8) copies) by May 10, 2004. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.

The principal author of these regulations is Paul F. Handleman, Office of the Associate Chief Counsel (Passthroughs and Special Industries), IRS. However, other personnel from the IRS and Treasury Department participated in their development.

Accordingly, 26 CFR part 1 is proposed to be amended as follows:

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act'; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act * * *” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Maryland program on December 1, 1980. You can find background information on the Maryland program, including the Secretary's findings, the disposition of comments, and conditions of approval in the December 1, 1980, Federal Register (45 FR 79431). You can also find later actions concerning Maryland's program and program amendments at 30 CFR 920.12, 920.15, and 920.16.

By letter dated January 7, 2004 (Administrative Record Number MD-586-00), Maryland sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). Maryland sent the amendment to include changes made at its own initiative. The amendment consists of Maryland House Bill 893, which was enacted for the purpose of requiring the Department of the Environment to review an application for an open-pit mining permit in a timely manner. The bill revises the Annotated Code of Maryland, and requires the Department of the Environment to take action for permit applications, permit revisions, and revised applications within certain time periods. The full text of the program amendment is available to you to read at the locations listed above under ADDRESSES. Specifically, Maryland proposes the following amendments to the Annotated Code of Maryland.

At section 15-505(d)(6), the words “in a timely manner” are added to the end of the provision as follows:

(6) The Department shall review all aspects of the application, including information pertaining to any other permit required from the Department for the proposed strip mining operation in a timely manner.

Section 15-505(d)(7) is amended by adding new (7)(I)(1), (7)(I)(2), (7)(I)(2)(A) (7)(I)(2)(B), and (7)(III). As amended, section 15-505(d)(7) provides as follows:

(7)(I) Upon completion of the review required by paragraph (6) of this subsection, the Department shall grant, require modification of, or deny the application for a permit and notify the applicant and any participant to a public informational hearing, in writing, of its decision:

1. Within 90 days after the date the Department determines that an application for a new permit or an application for permit revision that proposes significant alterations in the permit is complete; or

2. Within 45 days after receiving:

A. A revised application for a new permit; or

B. An application for a permit revision that does not propose significant alterations in the permit.

(II) The applicant for a permit shall have the burden of establishing that the application is in compliance with all of the requirements of this subtitle and the rules and regulations issued under this subtitle.

(III) The Department may provide for one extension of the deadlines in subparagraph (I) of this paragraph for up to 30 days by notifying the applicant in writing prior to the expiration of the original deadlines.

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Maryland program.

Send your written or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We may not consider or respond to your comments when developing the final rule if they are received after the close of the comment period ( see DATES ). We will make every attempt to log all comments into the administrative record, but comments delivered to an address other than the Appalachian Regional Coordinating Center may not be logged in.

Please submit Internet comments as an ASCII, Word file avoiding the use of special characters and any form of encryption. Please also include “Attn: SATS NO. MD-053-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Appalachian Regional Coordinating Center at (412) 937-2153.

We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. (local time), on March 26, 2004. If you are disabled and need special accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the Administrative Record.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

This rule is exempt from review by the Office of Management and Budget (OMB) under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. The basis for this determination is that decision is on a State regulatory program and does not involve a Federal regulation involving Indian lands.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations.

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD09-03-233), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please include a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not plan to hold a public meeting. But you may submit a request for a meeting by writing to Coast Guard MSO Cleveland at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

On July 16, 2003, the Coast Guard published an NPRM in the Federal Register proposing a safety zone for the annual Head of the Cuyahoga Rowing Regatta event (68 FR 41982). The proposed safety zone was introduced to control vessel traffic within the immediate location of the regatta to ensure the safety of life and property on the navigable waters of the United States during the event. The Coast Guard received four comments in response to the July 16, 2003 NPRM.

The first comment addressed the appropriate use of a safety zone for this event. The proposed safety zone restricted commercial vessel traffic on the Cuyahoga River during the event, with the exception of a two-hour window to allow for commercial transits. We agree that the use of a safety zone to restrict vessel traffic in the vicinity of a regatta is not the most appropriate type of waterway regulation for this event. Therefore, the safety zone will not be implemented. Alternatively, a proposal to manage vessel traffic using special local regulations under 33 CFR part 100 is presented below.

The second comment addressed the two-hour window intended to facilitate commercial vessel traffic during the event. Commercial entities have determined that the two-hour window was insufficient for safe passage. We concur with this statement, and the two-hour window will be withdrawn. The event will now run continuous from 8 a.m. until 3 p.m. The Coast Guard will provide sufficient notice to the public so commercial entities will have ample opportunity to schedule around the event.

The third comment addressed the necessity of a Final Rule for this event, stating that a recurring temporary final rule would be advantageous to all parties involved because it would allow for comments each year. We disagree. There is no need to initiate a separate rulemaking process every time for this annual event. Since 1996, this event has been held annually and is expected to continue into the foreseeable future. The event sponsors will still be required to submit a marine event permit and the dates will be published annually. However, since the event is not temporary in nature, a permanent rule should be established. Furthermore, the final rule can be cancelled if there are any significant changes.

The fourth comment stated that commercial vessel restrictions on the river during the event were necessary to ensure the safety of participants. We agree that vessel traffic on the Cuyahoga River must be managed to ensure safety of life and property on the navigable waters of the United States during this event. Using special local regulations under 33 CFR part 100 allows the Coast Guard to manage vessel traffic during the event and ensure safety of competitors, shells, and course markings from recreational and commercial vessels.

This proposed rule would establish special local regulations for an annual event on the third Saturday of September from 8 a.m. until 3 p.m. We intend to maintain positive control over all vessel movement in the vicinity of the event, and therefore all vessels are required to obtain permission from the Coast Guard Patrol Commander prior to transiting the area.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. The Office of Management and Budget has not reviewed this rule under that order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DHS is unnecessary.

The Coast Guard will publish full and adequate notice of the dates of the regatta, together with full and complete information of the special local regulations to ensure commercial entities have ample time to schedule around the event.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U. S. C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of commercial vessels intending to transit a portion of the regulated area.

This proposed rule would not have a significant economic impact on a substantial number of small entities for the following reasons: The proposed special local regulations are only in effect for a few hours on the day of the event and the Coast Guard will provide full and adequate notice of the dates of the regatta, together with full and complete information of the special local regulations to ensure commercial entities have ample time to schedule around the event. Recreational vessels can safely pass through the regulated area under sponsor or Coast Guard escort.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment ( see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Marine Safety Office Cleveland ( see ADDRESSES ).

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this proposed rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

The Coast Guard has analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Coast Guard has analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have considered the environmental impact of this proposed rule under Commandant Instruction M16475.1C, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of categorical exclusion under Section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded under Figure 2-1, paragraph 35(h) of the Instruction, from further environmental documentation. A written categorical exclusion determination is available in the docket for inspection or copying where indicated under ADDRESSES .

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:

I. Background

Section 115 of the Copyright Act, 17 U.S.C., provides that “[w]hen phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner, any other person * * * may, by complying with the provisions of this section, obtain a compulsory license to make and distribute phonorecords of the work.” 17 U.S.C. 115(a)(1). The compulsory license set forth in section 115 permits the use of a nondramatic musical work without the consent of the copyright owner if certain conditions are met and royalties are paid.

One such condition precedent set forth in the law requires any person using the section 115 license to provide notice to the copyright owner of a musical work “before or within thirty days after making, and before distributing any phonorecords' of his or her intent to use the copyright owner's work under the statutory license. 17 U.S.C. 115(b). Pursuant to this section, the Register of Copyrights issued regulations prescribing the form, content, and manner of service of the Notice of Intention (“Notice”) to obtain the license. Final regulations governing the content and service of the Notice were adopted on November 28, 1980. 45 FR 79038 (November 28, 1980). These rules served the traditional needs of the statutory licensee who wished to use a copyrighted musical work to make their own sound recording under the traditional section 115 mechanical license.

Section 115 was subsequently amended on November 1, 1995, with the enactment of the Digital Performance Right in Sound Recordings Act of 1995 (“DPRA”), Public Law 104-39 (1995). Among other things, this law expanded the section 115 compulsory license for making and distributing phonorecords to include not only the traditional use of the musical work to make an original sound recording, but also the distribution of a phonorecord of a nondramatic musical work by means of a digital phonorecord delivery (“DPD”). See 17 U.S.C. 115(c)(3)(A). As defined in the law, a digital phonorecord delivery is:

The right to make and distribute a DPD, however, does not include the exclusive rights to make and distribute the sound recording itself. These rights are held by the copyright owner of the sound recording and must be cleared through a separate transaction. In fact, to avoid any confusion on this point, the Digital Millennium Copyright Act of 1998 (“DMCA”), Public Law 105-304, clarifies that the making of a DPD will constitute an act of infringement under section 501 unless: (1) The copyright owner of the sound recording authorizes the making of the DPD, and (2) the owner of the copyright of the sound recording or the entity making the DPD has obtained a compulsory license under section 115 or has otherwise been authorized to distribute, by means of a DPD, each musical work embodied in the sound recording. See 17 U.S.C. 115(c)(3)(H).

What the DMCA did not do is change or alter the longstanding notice requirement set forth in section 115(b). However, the amendments did require the Copyright Office to amend its regulations governing the content and service of the required Notices of Intention to use the license to include the making of a digital phonorecord delivery, and the Office did so in 1999. See 64 FR 41286 (July 30, 1999). Unfortunately, these changes did not go far enough to address the needs of certain digital music services which anticipate using most, if not all, of the musical works embodied in the sound recordings readily available in today's marketplace under the section 115 license.

Consequently, on August 28, 2001, the Copyright Office published a second notice of proposed rulemaking in which it suggested further amendments to those rules associated with service of a Notice to use the section 115 license and filing of such notice with the Office. 66 FR 45241 (August 28, 2001). The purpose of these amendments is to streamline the notification process and make it easier for the licensee to serve the copyright owner with notice of the potential user's intention to use multiple musical works.

In response to this notice, the Copyright Office received comments from Wixen Music Publishing, Inc. (“Wixen”), the Digital Media Association (“DiMA”), Napster, Inc. (“Napster”), 1 and a joint comment from the Recording Industry Association of America, Inc., the National Music Publishers' Association, Inc., and The Harry Fox Agency, Inc. (collectively, “RIAA/NMPA/HFA”).

Wixen filed general comments which oppose the proposed amendments. It argues that the changes are designed to make it easier to use the statutory license and that increased use of the license is not a desirable result because use of the license erodes the rights of copyright owners. Wixen, however, fails to offer any support for its position or its observation, other than to assert that record clubs fail to adhere to the mechanical licensing process altogether. But failure on the part of some persons to use the license properly is not a reason to erect barriers for others to take advantage of the statutory license. In fact, the Office has a responsibility to promulgate regulations that implement Congress' express intent to allow the use of a musical work for the purpose of making and distributing phonorecords under the terms of the statutory license.

The remaining three commenters, DiMA, Napster and RIAA/NMPA/HFA, all agree that the current regulations do not meet the needs of the new technologies and are in need of revision. In fact, these commenters do not think the proposed changes go far enough, and they encourage the Office to adopt further revisions to streamline and simplify the notice provisions. In addition to the revisions proposed in the initial notice, RIAA/NMPA/HFA propose regulatory language that addresses electronic licensing, eliminates the requirement that certain ownership, officer and director information be provided, and allows service of Notices by regular mail or courier.

DiMA agrees with RIAA/NMPA/HFA in large part but maintains that the current system, even with the proposed changes, does not address the needs of the newly emerging business models. Both it and Napster support electronic filing, but their comments go much further than the changes proposed by the Office or RIAA/NMPA/HFA, in that they urge the Office, to the extent possible, to incorporate the changes set forth in the proposed Music Online Competition Act of 2001 (“MOCA”), proposed in the 107th Congress as H.R. 2724. Specifically, DiMA and Napster would like the Copyright Office to designate a single entity upon which to serve Notices and make royalty payments. In addition, DiMA proposes the creation of a “safe harbor” for those who fail to exercise properly the license during the period of uncertainty arising from the administration of the license for digital phonorecord deliveries (“DPDs”). It would also like to see the regulations amended to allow payment on a quarterly rather than a monthly basis and to establish a threshold below which payment would not be required.

These suggestions, however, require statutory changes. For example, the Office has no authority to excuse a licensee's failure to serve a Notice within the statutory time frame, nor does it have the authority to alter the timetable for payment. Section 115(b) of the Copyright Act states that a licensee “shall, before or within thirty days after making, and before distributing any phonorecords of the work, serve notice of intention to do so on the copyright owner.” Likewise, section 115(c)(5) specifically requires that “royalty payments shall be made on or before the twentieth day of each month and shall include all royalties for the month next preceding.” Moreover, section 115(c)(6) makes clear that upon failure to make payment within thirty days from the date of receipt of a written notice from the copyright owner indicating that payment has not been received, the license will be terminated and further making or distributions pursuant to the license are actionable as acts of infringement. 17 U.S.C. 115 (c)(6).

Notwithstanding the requests to issue rules to modify the law, the Office has found the comments useful and has incorporated many of the commenters' proposals in the rules proposed herein, especially where the proposed changes would facilitate the process for filing Notices to the benefit of both the licensee and the copyright owner.

The proposed rules published today reflect the Office's proposed resolution of the issues raised in this rulemaking proceeding and of the proposals made by the commenters. Because the Office proposes to address one issue raised by commenters but not raised in the earlier notice of proposed rulemaking, and because the Office seeks further comment on one issue addressed below, we are publishing a final notice of proposed rulemaking to seek comments on those two particular issues. Commenters may, of course, address other provisions of the proposed rules as well, but the Office does not anticipate that its determinations on those provisions will change. It is the Office's goal to propound final regulations promptly after the expiration of the comment period.

1. Service on Authorized Agents. Under the proposed amendments, a potential licensee could choose to serve either the copyright owner of the musical work or a duly authorized agent of the copyright owner for purposes of complying with the notice requirements of the section 115 license. In principle, RIAA/NMPA/HFA support such a change, but they contend that the proposed amendment is too restrictive. First, they object to the requirement that the agent must be specifically authorized to grant or administer the particular rights that are being licensed. They note that a compulsory license is conferred automatically, by operation of law, and consequently, a “copyright owner * * * should have the flexibility to appoint agents that are authorized to receive Notices of Intention and transmit them to the copyright owner, even if such agents are not empowered with discretion to grant or administer rights on a voluntary basis,” RIAA/NMPA/HFA comment at 5, and propose additional language to cover this contingency.

Second, they contend that a licensee should not be penalized for not knowing the metes and bounds of the agent's authority. To deal with such a case, RIAA/NMPA/HFA seek a change in the proposed regulatory language that would protect the licensee in the event an agent who has no authority to receive the Notice is mistakenly served on behalf of the copyright owner. Specifically, their proposed rule would allow the agent to return the Notice to the licensee who would then serve the Notice on the copyright owner directly within thirty days after receiving the returned original Notice. The rule would further specify the date of the mailing of the original Notice as the date of service for purposes of the section 115 license.

Third, RIAA/NMPA/HFA express concern that the emphasis on an agent being “duly authorized” may set a standard for establishing an agency relationship higher than that applied as a matter of agency law.

The need for a more flexible system for notification of use of the section 115 statutory license is evident from the comments received by the Copyright Office. Consequently, the rules proposed today will provide greater flexibility to the copyright owner and to the licensee. They will allow a copyright owner to use an agent to accept the requisite Notices and/or royalty payments accompanied by statements of account, but the rules will not require that the copyright owner use a single agent to perform both functions. The decision to use an agent is left to the discretion of the copyright owner who may wish to use one agent to accept all filings under the section 115 license, including the Notice, the Statements of Account and royalty payments. Alternatively, a copyright owner may choose to use an agent only for the purpose of accepting Notices with the expectation that the licensee will thereafter send all statements of account and royalty payments directly to the copyright owner or to another agent designated by the copyright owner for that purpose.

However, use of multiple agents can create traps for the unwary licensee in the case where an agent has been authorized only to accept Notices and the licensee is unaware of the limits of the agent's authority or assumes incorrectly that, as under the former regulatory scheme, Notices and Statements of Account are served on the same entity. Consequently, the new rules would impose a duty on the copyright owner to have its agent disclose the extent of its authority and to provide each licensee with the information they need to make payment to the proper party and to file the Statements of Account. This approach would allocate to the licensee the responsibility for serving Notices on the proper party, see discussion infra, section 4, Risk Assessment, and would place responsibility for supplying information for making proper payment on the copyright owner, who is in the best position to provide this information. Licensees who make payment in accordance with the information provided by an authorized agent would be deemed to have fully complied with the statutory requirements. A licensee who has served the Notice of Intention upon an agent will be under no obligation to send Statements of Account or royalty payments to the agent or the copyright owner until the agent notifies the licensee where to send the Statements of Account and payments. However, once the agent sends such notification, the licensee would be required to send Statements of Account and royalty payments covering the intervening period.

Such an approach creates the risk that a licensee may be able temporarily to delay sending Statements of Account and royalty payments to a copyright owner when the agent has failed to advise the licensee where to send them, but this appears to be a necessary result of the system proposed by copyright owners that would permit them to limit the authority of the agent to receipt of Notices of Intention. The Office also seeks comment on an alternative approach that would require the licensee to send Statements of Account and royalty payments to the agent to whom the Notice of Intention was sent unless and until the agent or the copyright owner advises the licensee that the statements and payments should be sent elsewhere.

In adopting the new approach, the Office also considered carefully the rule proposed by RIAA/NMPA/HFA that would protect a licensee in the event the Notice is incorrectly served on an agent with no authority to act on behalf of the copyright owner for purposes of the compulsory license. Under the proposed RIAA/NMPA/HFA rule, a licensee would incur no liability for a misdirected Notice provided that the licensee served the Notice properly on the copyright owner within thirty days after receiving the returned Notice. Moreover, the proposed rule would have specified the date of the mailing of the original Notice as the date of service for purposes of providing notice to the copyright owner.

The rule change proposed by RIAA/NMPA/HFA, however, would be contrary to law in at least two ways. First, the proposed rule would not insure notice in all situations. It would only require a licensee to serve a Notice directly on the copyright owner in the case where a misdirected Notice has been returned to the licensee. It would not provide for any means to notify the copyright owner in the case where a Notice has been misdirected and not returned, thus, failing to meet the notice requirement.

Second, the proposed rule would extend the period for serving a Notice beyond the period set forth in the law. The statute requires that notice be served on the copyright owner “before or within thirty days after making, and before distributing any phonorecords of the work,” 17 U.S.C. 115(b)(1). Yet, the RIAA/NMPA/HFA rule would expand the period for serving a Notice on the copyright owner, by resetting the clock for the thirty-day period for serving the Notice on the copyright owner to the date a misdirected Notice is returned to the licensee. RIAA/NMPA/HFA realize that this proposal could contravene the statutory time frame for serving notice and attempt to solve the problem by having the Office adopt a new rule, specifying the mailing date of the original Notice as the date of service. But this approach is flawed because it ignores the fact that the law requires that a person wishing to use the compulsory license “serve notice of intention to do so on the copyright owner.” 17 U.S.C. 115(b)(1). Service on someone other than the copyright owner or the owner's authorized agent, even when done in good faith, is not service on the copyright owner. For the foregoing reasons, the RIAA/NMPA/HFA proposed rule has not been adopted.

We have also considered RIAA/NMPA/HFA's suggestion to eliminate the requirement that an agent be “duly authorized” to act on behalf of the copyright owner for the purpose of administering the reproduction and distribution rights of the copyright owner and agree that it is not necessary for an agent to be authorized to this extent, if the agent will only be accepting Notices to use the section 115 license, see 37 CFR 201.18(a)(4), and/or accepting Statements of Account and royalty payments, see 37 CFR 201.19(a)(4) and (e)(7)(i). However, the agent must have the authority to accept the Notices and/or Statements of Account and royalty payments. RIAA/NMPA/HFA also express concern that the requirement that the agent be “duly authorized” might be interpreted as setting a standard of authority different from that which would apply as a matter of agency law. They propose that persons wishing to use the statutory license be permitted to serve Notices of Intention on agents “with authority” to receive the Notice of Intention. The Office agrees that service upon an agent who has authority to accept Notices of Intention on behalf of a copyright owner should be sufficient. For this reason, the rules will require that service be made on the copyright owner or on an agent with authority to receive the Notice, but will not include the original proposed requirement that the agent be fully authorized to administer the reproduction and distribution rights.

Napster and DiMA, like RIAA/NMPA/HFA, support the adoption of a rule that would allow service on an agent, but they offer a different approach to the problem. They propose that service be made upon a single agent to be designated by the Office in a procedure similar to that used to designate SoundExchange as the receiving agent for all royalty fees for the performance of sound recordings under the statutory section 114 license. See 63 FR 25394 (May 8, 1998); 67 FR 45239 (July 8, 2002).

We recognize the potential benefit that such a rule would have for licensees, but we find no authority in the statute to promulgate such a rule. In fact, Napster's and DiMA's suggestion that the Copyright Office designate a single agent for purposes of receiving the Notices is contrary to the express language in the law. Section 115(b)(1) requires that a licensee serve a Notice to use the compulsory section 115 on the copyright owner and allows filing of the Notice with the Office only in the event the “registration or other public records of the Copyright Office do not identify the copyright owner and include an address at which notice can be served.” Thus, there can be no serious dispute that the law allows service of the Notice with the Copyright Office only in very limited circumstances. Notice to either the Copyright Office or a single agent designated by the Copyright Office would alter the structure set forth in the law and, hence, it is clearly not permissible. Moreover, while the advantage of such an approach to licensees is apparent, copyright owners presumably would consider themselves disadvantaged by such an approach because they would no longer receive direct notification that their works are being used by particular licensees. However, there is no reason that a copyright owner cannot affirmatively designate an agent to act on his or her behalf for purposes of receiving the Notices and the monthly statements of account, and so the proposed rules have been amended accordingly.

RIAA/NMPA/HFA also suggest a technical correction to make clear that service may be accomplished by either serving the copyright owner directly or an agent of the copyright owner. We agree that the final rules should be clear that service on either the copyright owner or its agent is sufficient, and we have revised the proposed amendment accordingly.

2. Service by Regular Mail or Courier. RIAA/NMPA/HFA suggest that the Office amend its rules to allow service by means other than certified mail or registered mail, including first class mail, airmail, express mail, or by reputable courier. They maintain that service by certified mail or registered mail is both needlessly expensive and time consuming. They also note that service by regular mail is an accepted practice in other legal contexts and that service by a reputable courier, e.g. , Federal Express, DHL and UPS, is a widely accepted practice in the commercial business community.

The Office agrees with the proposed suggestion and proposes to amend its regulations to allow the licensee to choose the method of service. The advantage to using certified or registered mail, of course, is the creation of an evidentiary record to document the licensee's attempt to serve the Notice on the copyright owner in a timely manner. However, there is no reason to compel a licensee to use a particular method provided that the licensee assumes the burden of proving that the Notice was served in a timely manner. As before, where the licensee elects to serve the Notice by certified or registered mail on the copyright owner at the last address for the copyright owner shown in the records of the Copyright Office, the date the original Notice was sent, as documented by either a certified or registered mail receipt, shall be considered the date of service. Moreover, the Office will accept the date of attempted delivery by a reputable courier as the date of service, provided that documentation from the courier identifying the date of attempted delivery is provided. Alternatively, in the case where the licensee chooses to serve the Notice by means other than certified or registered mail or a reputable courier, e.g. , first-class mail, the licensee should have the burden of demonstrating that service was timely. This change would not alter in any way the licensee's obligation to serve the Notice on the copyright owner or the copyright owner's agent in the prescribed manner.

3. Service to Known Address. Section 115(b)(1) of the Copyright Act requires the compulsory licensee to serve the required Notice on the copyright owner. Under the current regulations, the Notice must be sent to the copyright owner identified in the registration records or other public records of the Copyright Office at the last address listed in these records in order to meet the notice requirements. Users have argued and the Office agrees that service on the copyright owner at the address listed in the Copyright Office records places a tremendous burden on a potential licensee who hopes to use the license to reproduce multiple works in those cases where the public records do not reflect the most current information and the licensee knows the current address for the copyright owner or the agent for the copyright owner who handles the reproduction and distribution rights. A licensee may have such information based upon a course of dealing with the copyright owner or because the copyright owner has publicized the information.

For that reason, the Office proposed an amendment to its regulations that would give the potential licensee an option to serve the copyright owner or his or her agent at a current address instead of requiring that the Notice be served on the copyright owner at the address listed for that copyright owner in the public records of the Copyright Office. RIAA/NMPA/HFA support this change, recognizing that many copyright owners and licensees have an ongoing business relationship and knowledge of current information not reflected in the public records of the Copyright Office. They offer no proposed changes to this provision.

DiMA, on the other hand, proposes a more centralized approach whereby the user sends the Notices to a limited number of centralized entities such as the Copyright Office, or an agent or agents designated by the Copyright Office, instead of the copyright owner or his designated agent. DiMA comment at 4. This approach would, as DiMA points out, reduce expense and eliminate the problems that arise when a copyright owner refuses to accept certified mail filings.

However, as explained earlier, the only time it is appropriate for a licensee to file a Notice with the Copyright Office is when “the registration or other public records of the Copyright Office do not identify the copyright owner and include an address at which notice can be served.” 17 U.S.C. 115(b)(1). Since the statute clearly sets forth the conditions under which a licensee can file its Notice with the Office, the proposed changes offered by DiMA to allow all Notices to come to the Copyright Office cannot be adopted. Such a rule would be an impermissible expansion of the duties and responsibilities delegated to the Copyright Office under the law. Therefore, the Copyright Office proposes to adopt a less expansive rule than the one proposed by DiMA which would allow a licensee to serve the copyright owner or his or her agent at an address other than the one listed in the Copyright Office records. If the licensee believes that he or she has more current or accurate information than the information in the Copyright Office records, he or she may serve the Notice using that information. However, as discussed below, the licensee bears the risk if his or her information proves to be inaccurate.

4. Risk Assessment. In the event the person or entity seeking to obtain the license chooses not to serve the copyright owner at the address for the copyright owner noted in the public records in the Copyright Office and mistakenly sends the Notice to a person or entity who is not the actual copyright owner, or the agent with authority to accept the Notice, or to an incorrect address, the licensee bears all risk associated with the misdirected service, including the likelihood that the compulsory license will not cover any activity taken by the licensee under a mistaken assumption that the Notice was properly served.

DiMA finds this approach too harsh and suggests that mistakes by a licensee's agent should not be imputed to the principal. It prefers a rule that would not bar a licensee from obtaining a statutory license for future use of the works in the case where the licensee reasonably relied on the integrity of the agent to effectuate proper notice. While the problem outlined is a serious concern, the Copyright Office has no authority to limit liability in the case where a Notice is improperly served. See 63 FR 25394 (May 8, 1998) (rejecting proposed term in rate setting proceeding that would have limited liability of a statutory licensee to acts which materially breach the statutory license terms).

5. Service of Notice by Electronic Means. RIAA/NMPA/HFA, DiMA and Napster requested that the Office amend its rules to permit a licensee to serve a Notice electronically. RIAA/NMPA/HFA note that service of a Notice in a digital format will reduce the potential for loss of information, prove less burdensome for both the licensee and the copyright owner (at least in those cases where the licensee is filing a Notice for use of multiple works), and provide a convenient and easy way to manage the data. To this end, RIAA/NMPA/HFA propose that the rules be amended to require service by electronic means when the Notice lists titles of more than 50 works and that any licensee be allowed to do so in these circumstances.

The Copyright Office fully supports the concept of service by electronic means and is cognizant of the many advantages it would provide to both licensees and copyright owners. Therefore, it is proposed that the rules be amended to provide an option for serving a Notice in a digital format. If a copyright owner/agent can accommodate a licensee who wishes to submit the Notice in a digital format and chooses to receive the Notice in this manner, then the Notice may be so served. Therefore, the Office proposes to adopt the RIAA/NMPA/HFA proposal to allow a licensee to submit a Notice to a copyright owner or its agent by means of an electronic transmission when the copyright owner or agent has determined that it can accommodate such submissions. The proposed rules would allow each copyright owner or agent acting on behalf of a copyright owner to establish written guidelines for making electronic submissions. All guidelines for making electronic submissions must be in writing and available to the public. An electronic submission made in this manner would be deemed to comply fully with the regulations for providing adequate notice to the copyright owner.

However, the Office recognizes that in some cases, an option to serve Notices electronically may be insufficient, and copyright owners may have good reason to insist upon electronic filing. As RIAA/NMPA/HFA assert, a Notice of Intention that lists a large number of works may be difficult to process and handle if it is submitted only in hard copy, especially if it is served on an agent for a number of copyright owners and lists the works of a number of copyright owners. For that reason, the Office proposes a solution somewhat different than, but modeled upon, the RIAA/NMPA/HFA suggestion to require an electronic filing in every instance where the licensee intends to file a Notice to license 50 works or more. Rather than require an electronic submission in every such case, the proposed rule would give a copyright owner or agent who receives a Notice of Intention that designates more than 50 works the right to demand that the person submitting the notice resubmit a list of the works identified in the notice in an electronic format. A list of the designated works would then have to be resubmitted in electronic format within 30 days of the licensee's receipt of the demand. As RIAA/NMPA/HFA proposed, the notice could be in any electronic format in wide use, giving licensees wide flexibility whether to use, for example, a particular word processing or spreadsheet program to prepare the notice.

The Office has also considered whether to allow a licensee to file a Notice in the Copyright Office in an electronic format. At this time, the Copyright Office is not prepared to accept electronic filings because it does not have in place the systems that would accommodate such filings. It is anticipated that such filings will be accepted in the future. For the time being, however, in the case where the licensee intends to license a high volume of musical works under section 115 and would endure significant hardships if required to submit the Notices under the standard practices, the licensee may contact the Licensing Division of the Copyright Office to inquire whether special arrangements can be made for submission of the Notice electronically.

6. Multiple Works. Another way to increase the efficiencies associated with the filing of a Notice is to allow the listing of multiple works on a single Notice in the case where the works are owned by the same copyright owner. For this reason, the Office proposed to amend its rules to eliminate the requirement that a separate Notice be served or filed for each nondramatic musical work embodied, or intended to be embodied, in phonorecords made under the compulsory license. See 37 CFR 201.18(a)(2).

RIAA/NMPA/HFA support the Office's proposal to allow the listing of multiple works on a single Notice in the case where a single copyright owner has an interest in each of the listed works. DiMA also supports the Office's proposal to allow a licensee to list multiple works on a single Notice, but then suggests that, in the case of an electronic submission, the Office allow a licensee “to file a single database notice including multiple works by multiple owners.” DiMA Comment at 5. DiMA postulates that a single database Notice would make it demonstrably easier to manage the information. RIAA/NMPA/HFA agree with DiMA on this point.

The Office recognizes the efficiencies for the licensee associated with DiMA's suggestion but it has chosen not to adopt this approach as a general rule at this time. Instead, the proposed rule requires that a Notice list only the works of the copyright owner being served but, in the case of a Notice served on an agent, the Notice may list the works of multiple copyright owners as long as all the works listed on the Notice are owned or co-owned by copyright owners who have authorized the agent to accept Notices on their behalf. The Office is taking this approach because section 115, which requires service of a Notice on the copyright owner, does not anticipate that the copyright owner should have to search a licensee's universal database Notice to determine which of the copyright owner's works a licensee intends to use pursuant to the compulsory license.

However, in the case where the copyright owner or agent has the ability to sort the information and is willing to accept a database Notice submitted electronically, the Office sees no reason to prohibit the use of such Notice and require in its place the more particularized Notice outlined in the proposed regulations. Thus, the proposed rule leaves it to the discretion of the licensee and the copyright owner (or agent) to determine whether a database Notice listing multiple works by multiple owners is acceptable to both the licensee and the copyright owner/agent. In such situations, the licensee and the copyright owner/agent should work out the details associated with formatting and transmittal of the information.

The proposed amended regulations also would require that in the case where a licensee files a Notice listing multiple titles with the Copyright Office, the licensee shall pay the $12 filing fee for each title. The filing fee will cover the administrative costs associated with separately processing the information for each title in the Notice. There was no opposition to this provision.

7. Content. The current regulations do not require that the licensee list the copyright owner's name on the Notice because a separate Notice for each work was served directly on the copyright owner, who has no need to be informed of his or her identity. Under the proposed amended rules, though, this would no longer be the case. A Notice listing multiple works could be served on an agent working on behalf of multiple copyright owners. Under these circumstances, the Notice would have to identify the copyright owner of each work, and so an amendment was proposed to add this information to the Notice.

In response to this proposed change, RIAA/NMPA/HFA assert that the need to identify the copyright owner arises only when the Notice is not served directly on the copyright owner and suggest that the requirement apply only to Notices not served on a copyright owner directly. In theory we agree, and recognize that it may be redundant to include the name of the copyright owner on the Notice in those instances where the Notice is served directly on the copyright owner. Nevertheless, we recognize that all such Notices do not reach their intended destination. In these cases, the Notices may end up being filed with the Copyright Office and would have to include the name of the copyright owner. Such Notices should be complete on their face and not require any further work on the part of the staff or the public to identify the copyright owner. Moreover, requiring that the Notice contain the name of the copyright owner will eliminate the need to create multiple notice formats for service on different entities. Consequently, the proposed rules require the identification of the copyright owner on all Notices.

The Office also proposed adding a requirement that, in the case where a person files the Notice with the Copyright Office pursuant to § 201.18(e)(1), 2 the Notice include an affirmative statement that the registration records or other public records of the Copyright Office have been searched and that the name and address of the copyright owner is not listed in these records. 3 The purpose of this amendment is to provide sufficient information to the Copyright Office so that it can ascertain whether the Notice has been properly filed. Moreover, this requirement will serve as a reminder to the potential licensee that he or she has an obligation to search the public records of the Copyright Office before filing the required Notice with this Office. Napster, however, expressed a concern that the additional requirement may be used against a licensee as a means to oppose or restrict access to the compulsory license. We understand this concern, but the rules allow a licensee to file a Notice with the Office only when the registration records or other public records of the Copyright Office do not identify the copyright owner of the work and include an address, or when the Notice is returned to the sender because the copyright owner is no longer located at that address or refused to accept delivery. Consequently, the Office does not find a requirement to affirmatively state that the licensee has completed the obligatory search to be an onerous one and proposes to require the licensee to affirmatively state that the Office records have been searched and that the records do not include the name and address of the copyright owner.

In addition, RIAA/NMPA/HFA has asked the Office to “eliminate the requirement that a licensee provide certain information concerning its ownership, officers and directors, and substitute greatly simplified requirements that the licensee (1) provides the name and title of the licensee's CEO, managing partner or the like and (2) identify the entity expected to be actively engaged in the business of making and distributing, or authorizing the making and distribution of, phonorecords if the licensee is a holding company, trust or other passive entity not actively engaged in such business.” While the current requirements presumably are intended to benefit copyright owners, see 37 CFR 201.18(c)(1)(iii) and 201.19(f)(3)(iii), the fact that NMPA and HFA propose that it be eliminated suggests that copyright owners would not be harmed by removing it. In fact, RIAA/NMPA/HFA maintain that the current regulations are not tailored to provide meaningful information to the copyright owners and may well impose a needless burden on licensees. In light of these assertions by both copyright owners and users, the Office proposes to remove these requirements from the rules; but because the proposal was not included in the initial Notice of Proposed Rulemaking, the Office is seeking public comment on these issues for consideration in preparing the final rule.

8. Signature. The Office proposes to further amend its rule to allow a duly authorized agent of the intended licensee to sign the Notice. An agent who signs on behalf of the licensee would have to be specifically authorized to execute the Notice on behalf of the licensee. A concise statement of authorization to that effect would have to be included in the Notice.

RIAA/NMPA/HFA raise concerns that the proposed regulatory language may “require specific resolution of a licensee's board of directors or a certificate evidencing the agent's authority,” and has suggested alternative language to make clear that such procedures are not required. Specifically, they have asked the Office to remove the regulatory language that requires the agent to be specifically authorized to execute the Notice and a concise statement of authorization to that effect and in its place require that the Notice include only an affirmative statement that the agent is authorized to execute the Notice on behalf of the licensee. Since the purpose of the rule is to insure that the person signing the Notice is either the licensee or a duly authorized agent and the proposed changes accomplish this goal without using language that would impose unintended requirements on a licensee or its board of directors, the Office proposes to amend its regulation to incorporate the proposed changes offered by RIAA/NMPA/HFA.

The Copyright Office also intends to amend its regulations regarding signature to address the issues and problems associated with making service electronically. Currently, there are no regulations pertaining to electronic service, but as explained earlier, the Office has considered the comments offered on this issue and proposes to adopt regulations that provide an option for electronic service. Since this option is voluntary and the Office has not requested comment on this issue—nor has any party who advocates and supports electronic service offered any suggestions as to the appropriate methodology to be employed to verify that an electronic submission will be made under the authority of the appropriate person—the regulations will not specify how a submission should be authenticated. However, the Office intends to require that, in the case where a submission is made electronically, a licensee and a copyright owner/agent develop mutually acceptable protocols to verify the authenticity of the person serving the Notice.

9. Harmless errors. The statute requires that a person or entity who intends to use the compulsory license give notice to the copyright owner of the nondramatic musical work before or within thirty days after making, and before distributing any phonorecords of the work. The rules outline specific elements that are to be included in each Notice. This information helps the copyright owner identify which of his or her works are being used under the license. However, errors may occur in the preparation of these Notices, many of which do not affect the legal sufficiency of the Notice. For this reason, the Office proposes to adopt a new paragraph (g) to § 201.18 to clarify that such errors will be considered harmless and will not affect the validity of the Notice.

As stated in the initial notice of proposed rulemaking, the Office does not anticipate that it will have any role in resolving disputes about whether an error in a Notice is harmless.

RIAA/NMPA/HFA support this change and offer no further changes. DiMA also agrees with the change, although it suggests that the rule does not adequately address the major problems with the current system concerning service and payment. The Office agrees with DiMA's observation, but notes that the proposed change is meant only to clarify that a Notice need not be perfect to give proper notice of use under the law. Nor is the rule to be construed as a “safe harbor” for a licensee who fails to serve adequate notice on the proper copyright owner in a timely manner.

10. Fee for filing Notices of Intention . 4 Section 201.18(e)(3) of 37 CFR provides, in pertinent part, that when a Notice of Intention is filed with the Office because the copyright owner is no longer at the last address indicated in the Copyright Office's records or has refused to accept delivery, no filing fee will be required. The Office proposed to amend § 201.18(e) to remove this provision. The fee charged for the filing of a Notice, like most other Copyright Office fees, is based upon the Office's costs in performing the service. See Fees and Registration of Claims to Copyright, 64 FR 29518 (June 1, 1999). Thus, the Office intends to amend its rules to require a filing fee in each instance where the Notice is filed with the Copyright Office without regard to the licensee's reason for filing the Notice with the Office.

While filing a Notice listing multiple titles simplifies the process for licensees, the Office still must index each title included on the Notice, thereby incurring costs for each title. The current cost for filing a Notice of Intention is $12. This fee may be changed only after the Register has studied the costs incurred by the Copyright Office in connection with the filing and has submitted the proposed change in the fee to Congress, which has 120 days to disapprove the change in fee. 17 U.S.C. 708(a)(5), (b). The Register will review the cost of processing multiple-title Notices and will present a proposal to modify this fee to Congress. Meanwhile, however, because the $12 fee would clearly be inadequate to cover the costs of processing Notices of Intention containing large numbers of titles, the proposed regulation will provide that for purposes of calculating fees, a Notice which lists multiple works shall be considered a composite filing of multiple Notices, and that fees shall be paid accordingly ( i.e. , a separate $12 fee shall be paid for each work listed in the Notice). It is anticipated that this fee for the filing of multiple-title Notices will be decreased significantly when the Register makes her fee proposal to Congress.

11. Certificate of Filing . 5 Section 201.18(e)(1) of 37 CFR provided, in pertinent part, that “[u]pon request and payment of the fee specified in § 201.3(e), a Certificate of Filing [of a Notice of Intention] will be provided to the sender.” This Certificate of Filing is in addition to a written acknowledgment of receipt and filing that the Office routinely provides to a person who files a Notice.

The Office has reexamined this rule and has determined that the issuance of a Certificate of Filing serves no useful purpose, given that the Office routinely provides a written acknowledgment of receipt and filing. Moreover, a person who wishes to obtain official certification of the filing of a Notice of Intention may do so pursuant to the existing regulations governing certified copies of Copyright Office records. See 37 CFR 201.2(d).

Because there is no identifiable reason to incur the extra time and expense associated with the issuance of a Certificate of Filing for each Notice that is filed with the Copyright Office, the Office intends to delete that portion of § 201.18(e)(1) that provides for a Certificate of Filing from the Licensing Division of the Copyright Office.

12. Other issues. a. Safe harbor. Napster and DiMA advocate the creation of a safe harbor to avoid any copyright infringement liability which may occur during the time it takes to implement any desired electronic systems. In essence, these entities are asking for a rule that would hold harmless any past infringing activity in the case where an online service has not complied with the rules for obtaining a compulsory license because of the difficulties associated with filing multiple Notices or due to a dispute between the publishers and the services over the need for the license. Napster at 7; DiMA at 5 n.6. The Office has no authority to promulgate regulations that would effectively absolve a compulsory licensee from liability for past errors or inadvertent errors under the new procedures. See 63 FR 25394 (May 8, 1998) (rejecting proposed term in rate setting proceeding that would have limited liability of a statutory licensee to acts which materially breach the statutory license terms).

b. Database. DiMA asks the Office to establish a complete and up-to-date electronic database of all musical works registered with the Copyright Office that are still under copyright protection, arguing that an electronic database will make it easier for all companies to search the registration files. Certainly, the creation of an all-inclusive database is a laudable goal and deserves serious consideration, but it is not the subject of this proceeding nor a realistic goal at this time. Consequently, the Office has proposed modest changes to its regulations that can be implemented immediately to the benefit of those companies that wish to utilize the statutory license in the immediate future. If needed, further amendments may be considered at a future time.

c. Extension of current mechanical licenses to cover DPDs. DiMA suggests that the Office promulgate “a minimal set of regulations for the common situation in which online entities will be distributing digital phonorecord deliveries of sound recordings already covered by a mechanical license.” DiMA offers little explanation for its suggestion, which may be intended to permit someone who intends to use the section 115 DPD license to rely upon a previously served Notice of Intention to use the section 115 mechanical license. The benefits of such a provision for licensees are apparent, but copyright owners, who have had no opportunity thus far to respond to DiMA's proposal, may well have compelling reasons to oppose it. The Office is unwilling to consider such a proposal, which was not included in the initial notice of proposed rulemaking, at this time without the benefit of further comment from both copyright owners and users of the compulsory license. The Office invites elaboration on this proposal by DiMA and comment on this proposal by copyright owners and other users of the compulsory license. In light of the intention to publish a final rule shortly after the close of the comment period, it is highly unlikely the final rule promulgated in this proceeding will include such an innovation, but comments received on this issue will be considered by the Office for possible future action.

d. Royalty Payments and Statements of Account. DiMA seeks a regulation that would allow the Copyright Office or an agent designated by the Copyright Office to receive payments of royalty fees and statements of accounts. We recognize that DiMA's suggestion offers efficiencies for licensees, but the Copyright Office has no authority to adopt the proposed payment mechanism through a notice and comment proceeding. First, the Copyright Office collects royalty fees only in three instances and in each case Congress has expressly delegated the responsibility to the Office. See 17 U.S.C. 111(d)(2), 119(b)(1), and 1005. Without similar statutory authority to collect royalty fees under section 115, the Copyright Office cannot promulgate regulations directing or permitting a compulsory licensee to make monthly royalty payments directly to the Copyright Office. Second, the Copyright Office cannot unilaterally designate an entity as an agent to receive these fees.

In a past proceeding to set rates and terms for the section 114 license, the parties to that proceeding proposed a term to the Copyright Arbitration Royalty Panel (“CARP”), the administrative entity with the authority and responsibility for adopting terms of payment for that license, designating a single collective for the purpose of receiving and distributing the royalty fees. Recognizing the administrative efficiencies for the interested parties and after finding that it was not contrary to law for the parties to the section 114 rate setting proceeding to agree upon a collective to receive and distribute the royalty payments on behalf of all affected copyright owners, the Librarian adopted the stipulated term of payment. See 63 FR 25394 (May 8, 1998). However, in that context the Librarian of Congress has the power to establish the terms of royalty payments. See 17 U.S.C. 114(f). The Office has no such authority under section 115. Moreover, because this rulemaking is directed only toward amending the current regulations in order to streamline the procedures for serving Notices of Intention and Statements of Account, the Office finds DiMA's proposal to designate a collective for the purpose of collecting the section 115 royalties beyond the scope of this proceeding.

DiMA has also asked the Copyright Office to adopt regulations to permit quarterly rather than monthly filing of the statements of account and to permit the withholding of fees below a certain threshold level. It cites the administrative costs associated with the distribution of de minimis fees and speculates that on-line music services may decide not to offer works of minor interest because the costs of administering the license for these works is disproportionately high compared to the royalties to be paid. The schedule of payment, however, is not an appropriate subject for a rulemaking proceeding. Section 115(c)(5) requires a licensee to make monthly payments. The only way to alter the schedule for payment is through an amendment to the law. No agency has the authority to promulgate regulations that alter requirements set forth in the law.

e. Filings with the Copyright Office. DiMA suggests that the Office draft regulations that would allow licensees to offset costs associated with filing Notices with the Office in those situations where the copyright owner wrongly refuses service. It suggests that licensees might be allowed to deduct the administrative costs associated with such filings from the royalty fees. Again, this is a subject beyond the scope of the current rulemaking proceeding and, thus, it will not be considered at this time.

In consideration of the foregoing, the Copyright Office proposes to amend part 201 of 37 CFR as follows:

Throughout this document “we,” “us,” or “our” means EPA.

In today's action we are proposing to approve into the Texas SIP revisions to Title 30 of the Texas Administrative Code (30 TAC) sections 116.12, Nonattainment Review Definitions; 116.160, Prevention of Significant Deterioration Requirements; and 116.162, Evaluation of Air Quality Impacts. The TCEQ adopted these revisions on October 10, 2001, and submitted the revisions to us for approval as a revision to the SIP on September 16, 2002.

30 TAC section 116.12—Nonattainment Review. The previous State version of this section, which is the existing SIP-approved version (see 65 FR 43994, July 17, 2000), excludes the “activities of any vessel” from the definition of “building, structure, facility, or installation.” The revised version that the State adopted on October 10, 2001, and that the State has submitted for EPA's approval, deletes the “except the activities of any vessel” clause from 116.12(4). Texas has explained that this change will allow the inclusion of marine vessel emissions in applicability determinations for nonattainment permits.

30 TAC section 116.160—Prevention of Significant Deterioration Requirements. The previous State version of this section, which is the existing SIP-approved version (see 67 FR 58697, September 18, 2002), incorporates by reference the Federal Prevention of Significant Deterioration (PSD) regulations at 40 CFR 52.21, as amended June 3, 1993. Those regulations excluded the “activities of any vessel” from the definition of “building, structure, facility, or installation.” The revised version that the State adopted on October 10, 2001, and that the State has submitted for EPA's approval, excludes the CFR definition of “building, structure, facility, or installation,” because the CFR definition includes language vacated by the court in Natural Resources Defense Council v. EPA, 725 F.2d 761 (D.C. Cir. 1984) (see discussion below under “Legal Background”). Instead, the revised version of section 116.160 defines “building, structure, facility, or installation” consistent with the definition in revised section 116.12, discussed above. Texas has explained that this change will allow the inclusion of marine vessel emissions in applicability determinations for PSD permits. In addition, the revised section 116.160 replaces the definition of “secondary emissions” at 40 CFR 52.21 with language consistent with the NRDC decision.

The revised section 116.160 otherwise incorporates the version of the Federal PSD air quality regulations promulgated at 40 CFR 52.21 in 1996, as well as the most recent version of 40 CFR 51.301 (amended 1999).

Finally, revised subsections 116.160(d) and (e) make minor changes such as clarifying references to the “administrator” and “executive director.”

30 TAC section 116.162, Evaluation of Air Quality Impacts. EPA approved the previous State version of this section into the SIP on August 19, 1997. 62 FR 44083. The new version submitted to EPA contains only minor typographical and citation changes.

Section 110 of the Act requires States to develop air pollution regulations and control strategies to ensure that State air quality meets the National Ambient Air Quality Standards. Each State must submit these regulations and control strategies to us for approval and incorporation into the Federally-enforceable SIP. In order for State regulations to be incorporated into the Federally-enforceable SIP, States must formally adopt these regulations and control strategies consistent with State and Federal requirements. Section 116 of the Act provides that the States retain the authority to adopt measures no less stringent than federal requirements, unless otherwise preempted.

Once a State adopts a rule, regulation, or control strategy, the State may submit it to us for inclusion into the SIP in accordance with section 110 of the Act. We must then decide on an appropriate Federal action, provide public notice and seek additional comment regarding the proposed Federal action on the State submission. If we receive relevant adverse comments, we must address them before taking a final action.

Under section 110 of the Act, when we approve all State regulations and supporting information, those State regulations and supporting information become a part of the federally approved SIP.

Additional details on the legal basis for this proposed rule may be found in the Technical Support Document (TSD) for this action.

Currently, the State of Texas issues and enforces PSD permits directly in all areas of the State without final approval by EPA, with the exception of Indian lands and situations where the applicability determinations would be affected by dockside emissions of vessels. As currently approved, Chapter 116 incorporates the PSD/Nonattainment (NA) review permitting requirements and definitions from the vacated 1982 regulations in section 116.12(4) for NA and section 116.160(a) for PSD.

Final approval of the changes to section 116.12 and section 116.160(c) will grant full approval of the State's preconstruction permitting SIP for all sources, except for those sources located on land under the control of Indian governing bodies. These changes to section 116.12 are not inconsistent with the requirements of the Clean Air Act.

We are approving as a revision to the Texas SIP revisions of 30 TAC sections 116.12, Nonattainment (NA) Review Definitions; 116.160, Prevention of Significant Deterioration Requirements; and 116.162, Evaluation of Air Quality Impacts, which Texas submitted on September 16, 2002.

We are also proposing to revise 40 CFR 52.2303, Significant deterioration of air quality, as follows. First, we are proposing to remove paragraph (d), which retained applicable requirements of 40 CFR 52.21 for new major sources or major modifications to existing stationary sources for which applicability determinations of PSD would be affected by dockside emissions of vessels. Because the regulations that we are approving today enable Texas to make PSD applicability determinations for such sources, paragraph (d) is no longer necessary. Second, we are proposing to revise and reorganize paragraph (a) to reflect the current information concerning Texas' PSD program and to make paragraph (a) easier to understand.

1. The Regional Office has established an official public rulemaking file available for inspection at the Regional Office. EPA has established an official public rulemaking file for this action under TX-165-1-7610. The official public rulemaking file consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the official public rulemaking file does not include Confidential Business Information (CBI) or other information the disclosure of which is restricted by statute. The official public rulemaking file is available for public viewing at the Air Permitting Section, EPA Region 6, 1445 Ross Avenue, Dallas, TX. EPA requests that if at all possible you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Offices official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

2. Copies of the State submittal and EPA's Technical Support Document are also available for public inspection during normal business hours, by appointment at the State air agency: Texas Commission on Environmental Quality, Office of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753.

3. Electronic Access. You may access this Federal Register document electronically through the Regulations.gov Web site at http://www.regulations.gov where you can find, review, and submit comments on Federal rules that have been published in the Federal Register , the Government's legal newspaper, and are open for comment. For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information the disclosure of which is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number, TX-165-1-7610, in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you wish to submit comments electronically (via e-mail, Regulations.gov, or on disk or CD-ROM), EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. The EPA's policy is that EPA will not edit your comments. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the public rulemaking file. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

a. E-mail Comments may be submitted by electronic mail (e-mail) to Ms. Stephanie Kordzi at kordzi.stephanie@epa.gov , Subject “Public comment on ID No. TX-165-1-7610.” In contrast to the Regulations.gov Web site, EPA's e-mail system is not an “anonymous” system. If you send an e-mail comment directly to EPA, your e-mail address will be automatically captured and included as part of the comment that is placed in the official public rulemaking file.

b. Regulations.gov. Comments may be submitted electronically at the Regulations.gov Web site, the central online rulemaking portal of the United States government. Every effort is made to ensure that the Web site includes all rule and proposed rule notices that are currently open for public comment. You may access the Regulations.gov Web site at http://www.regulations.gov . Select “Environmental Protection Agency” at the top of the page and click on the “Go” button. The list of current EPA actions available for comment will be displayed. Select the appropriate action and follow the online instructions for submitting comments. Unlike EPA's e-mail system, the Regulations.gov Web site is an “anonymous” system, which means that any personal information, e-mail address, or other contact information will not be collected unless it is provided in the text of the comment. See the Privacy Notice at the Regulations.gov Web site for further information. Please be advised that EPA cannot contact you for any necessary clarification unless your contact information is included in the body of comments submitted through the Regulations.gov Web site.

c. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to: Mr. David Neleigh, Chief, Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. Please include the text “Public comment on ID No. TX-165-1-7610” on the disk or CD ROM. These electronic submissions will be accepted in WordPerfect, Word, or ASCII file format. You should avoid the use of special characters and any form of encryption.

2. By Mail. Send your comments to: Mr. David Neleigh, Chief, Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. Please include the text “Public comment on ID No. TX-165-1-7610” in the subject line of the first page of your comments.

3. By Hand Delivery or Courier. Deliver your written comments or comments on a disk or CD ROM to: Mr. David Neleigh, Chief, Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, Attention “Public comment on ID No. TX-165-1-7610.” Such deliveries are only accepted during official hours of business, which are Monday through Friday, 8:30 a.m. to 4:00 p.m., excluding Federal holidays.

4. By Facsimile. Fax your comments to: (214) 665-7263, Attention “Public comment on ID No. TX-165-1-7610.”

You may assert a business confidentiality claim covering CBI included in comments submitted by mail or hand delivery in either paper or electronic format. CBI should not be submitted via e-mail or at the Regulations.gov Web site. Clearly mark any part or all of the information submitted which is claimed as CBI at the time the comment is submitted to EPA. CBI should be submitted separately, if possible, to facilitate handling by EPA. Submit one complete version of the comment that includes the properly labeled CBI for EPA's official administrative record and one copy that does not contain the CBI to be included in the public rulemaking file. If you submit CBI on a disk or CD ROM, mark the outside of the disk or the CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI. Also submit a non-CBI version if possible. Information which is properly labeled as CBI and submitted by mail or hand delivery will be disclosed only in accordance with procedures set forth in 40 CFR part 2. For comments submitted by EPA's e-mail system or through the Regulations.gov Web site, no CBI claim may be asserted. Do not submit CBI to the Regulations.gov Web site or via EPA's e-mail system. Any claim of CBI will be waived for comments received through the Regulations.gov Web site or EPA's e-mail system. For further advice on submitting CBI to the Agency, contact the person listed in the For Further Information Contact section of this notice.

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate ID No. in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this proposed action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely proposes to approve State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule proposes to approve pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This proposed action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

On December 3, 2003, the Pennsylvania Department of Environmental Protection (PADEP) submitted a formal revision to its SIP. The SIP revision consists of the standards and requirements to control VOC emissions from AIM coatings.

In December 1999, EPA identified emission reduction shortfalls in several 1-hour ozone nonattainment areas in the Ozone Transport Region (OTR) and required those areas to address the shortfalls. The Ozone Transport Commission (OTC) developed model rules of control measures for a number of source categories and estimated the emission reduction benefits from implementing those model rules. The OTC AIM coatings model rule was based on the existing rules developed by the California Air Resources Board, which were analyzed and modified by the OTC workgroup to address VOC reduction needs in the OTR. The standards and requirements contained in Pennsylvania's AIM coatings rule are consistent with the OTC model rule. Versions of this same model rule to control VOC emissions from AIM coatings has been or is currently being adopted in several states in the Northeastern and Mid-Atlantic regions of the United States. As such this regulation does not impose requirements unique to the Commonwealth of Pennsylvania.

The Pennsylvania AIM coatings rule (Chapter 130, subpart C) applies to any person who supplies, sells, offers for sale, or manufactures, blends or repackages an AIM coating for use within the Commonwealth of Pennsylvania, as well as a person who applies or solicits the application of an AIM coating within the Commonwealth. The rule does not apply to the following: (1) Any AIM coating that is sold or manufactured for use outside the Commonwealth or for shipment to other manufacturers for reformulation or repackaging; (2) any aerosol coating product; or (3) any architectural coating that is sold in a container with a volume of one liter (1.057 quarts) or less. The rule sets specific VOC content limits, in grams per liter, for AIM coating categories with a compliance date of January 1, 2005. Manufacturers would ensure compliance with the limits by reformulating coatings and substituting coatings with compliant coatings that are already in the market. The rule contains VOC content requirements for a wide variety of field-applied coatings, including graphic arts coatings, lacquers, primers and stains. The rule also contains provisions for a variance from the VOC content limits, which can be issued only after public hearing and with conditions for achieving timely compliance. In addition, the rule contains administrative requirements for labeling and reporting. There are a number of test methods that would be used to demonstrate compliance with this rule. Some of these test methods include those promulgated by EPA and South Coast Air Quality Management District of California. The test methods used to test coatings must be the most current approved method at the time testing is performed.

EPA is proposing to approve the Pennsylvania SIP revision for the control of VOC emissions from AIM coatings submitted on December 3, 2003. The Pennsylvania AIM rule is part of the Commonwealth's strategy to achieve and maintain the ozone standard throughout the Commonwealth. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting either electronic or written comments. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number PA211-4224 in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. E-mail. Comments may be sent by electronic mail (e-mail) to morris.makeba@epa.gov, attention: PA211-4224. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

ii. Regulations.gov. Your use of Regulations.gov is an alternative method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov, then select “Environmental Protection Agency” at the top of the page and use the “go” button. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in the ADDRESSES section of this document. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Written comments should be addressed to the EPA Regional office listed in the ADDRESSES section of this document.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, confidential business information (CBI), or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate regional file/rulemaking identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to approve a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order.

This proposed rule pertaining to Pennsylvania's AIM rule, does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Coast Guard and the Maritime Administration will hold a public meeting on their joint notice of proposed rulemaking published in the Federal Register on February 4, 2004 (69 FR 5403).

The meeting is open to the public. Non-Federal Government visitors must enter the Nassif Building (DOT Headquarters) through the southwest security entrance near the corner of Seventh and E Streets. Security staff will compare the visitor's photo identification card with the names on the list of meeting attendees. Visitors will be escorted to and from the meeting rooms. There is limited commercial parking in the area (at Sixth and School Streets Southwest and at Sixth and D Streets Southwest) and a Metrorail stop (L'Enfant Plaza) in the building. Attendees may make oral presentations during the meeting. Please note that the meeting may close early if all business is finished.

For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact Robert S. Spears at the address under FOR FURTHER INFORMATION CONTACT as soon as possible.