On January 23, 2004, we published in the Federal Register (69 FR 3271-3272, Docket No. 03-031-2) a notice that the Animal and Plant Health Inspection Service intends to prepare an environmental impact statement in connection with potential changes to the regulations regarding the importation, interstate movement, and environmental release of certain genetically engineered organisms.

Comments on that notice were required to be received on or before March 23, 2004. To provide interested persons additional time to prepare and submit comments, we are reopening the comment period on the notice until April 13, 2004. We will also consider all comments received between March 24, 2004 (the day after the close of the original comment period), and the date of this notice.

The Office of Management and Budget (OMB) has determined that this rule is not significant for the purpose of Executive Order 12866 and, therefore, it has not been reviewed by OMB.

Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the collections of information in this rule have been approved by OMB under control number 0563-0053 through February 28, 2005.

FCIC certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Program requirements for the Federal crop insurance program are the same for all producers regardless of the size of their farming operation. For instance, all producers are required to submit an application and acreage report to establish their insurance guarantees, and compute premium amounts, or a notice of loss and production information to determine an indemnity payment in the event of an insured cause of crop loss. Whether a producer has 10 acres or 1000 acres, there is no difference in the kind of information collected. To ensure crop insurance is available to small entities, the Federal Crop Insurance Act authorizes FCIC to waive collection of administrative fees from limited resource farmers. FCIC believes this waiver helps to ensure small entities are given the same opportunities to manage their risks through the use of crop insurance. A Regulatory Flexibility Analysis has not been prepared since this regulation does not have an impact on small entities, and, therefore, this regulation is exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C. 605).

This program is listed in the Catalog of Federal Domestic Assistance under No. 10.450.

This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115, June 24, 1983.

This rule has been reviewed in accordance with Executive Order 12988 on civil justice reform. The provisions of this rule will not have a retroactive effect. The provisions of this rule will preempt State and local laws to the extent such State and local laws are inconsistent herewith. With respect to any action taken by FCIC under the terms of the crop insurance policy, the administrative appeal provisions published at 7 CFR part 11 or 7 CFR 400.169, as applicable, must be exhausted before any action for judicial review of any determination or action by FCIC may be brought.

This action is not expected to have a significant impact on the quality of the human environment, health, and safety. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed.

FCIC proposes to amend the Common Crop Insurance Regulations (7 CFR part 457) by amending § 457.158 Apple Crop Insurance Provisions effective for the 2005 and succeeding crop years. The changes to the provisions for insuring apples are as follows:

1. Section 1—Add definitions for the terms “apple production,” “fresh apple production,” “processed apple production,” “damaged apple production,” “mature,” and “type”. The definition of “harvest” has been revised to clarify that apples collected from the ground that cannot be sold for human consumption will not be considered harvested. The definition of “marketable” has been revised to conform to the new standards for apples considered damaged.

2. Section 2—Revise section 2 to incorporate the provisions previously contained in section 14 for clarity and to conform to the elimination of some of the options previously available under the policy.

3. Section 3—Move the requirement to report acreage by varietal group to the acreage reporting date to be consistent with the requirement that the insured report their types on the acreage report.

4. Section 4—The contract change date in California has been changed to October 1 to conform to the changes in the insurance period for California.

5. Section 5—Add provisions to clarify that an insurance provider may not cancel an insured's policy when an insured cause of loss has occurred after insurance attached, but prior to the cancellation and termination date.

6. Section 6—Revise the reporting requirements to require the insured to report and designate all acreage grown for fresh apples and all acreage grown for processing apples, by varietal group, by the acreage reporting date to ensure that the proper price is used to value the production.

7. Section 9—Add provisions to specify that if the insured policy is canceled or terminated for any crop year after insurance attached for that crop year, but on or before the cancellation and termination dates, whichever is later, then insurance will be considered to not have attached for that year and no premium, administrative fee, or indemnity will be due. Add provisions to allow a different insurance period for California because the varieties grown there are typically harvested later than other varieties.

8. Section 10—Revise the provision to specify that unavoidable hail, wind, sunburn, and russeting caused by frost or freeze will now be a covered cause of loss without the need to purchase a specific option.

9. Section 12—Clarify that value of the production guarantee is also calculated by variety as well as type.

10. Replaced provisions of the previous sections 13 (Optional Coverage for Quality Adjustment) and section 14 (Option C—Prices and Units by Varietal Group) with a new section 14 (Optional Coverage for Fresh Fruit Quality Adjustment) to provide quality adjustments for all perils. This modification eliminates several options under the current program and simplifies the apple crop insurance program. In addition, an example was added for clarification of the Optional Coverage for Fresh Quality Adjustment.

Accordingly, as set forth in the preamble, the Federal Crop Insurance Corporation proposes to amend 7 CFR part 457, Common Crop Insurance Regulations, for the 2005 and succeeding crop years as follows:

Establishing security zones by notice-and-comment rulemaking gives the public an opportunity to comment on the proposed zones. 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 [CGD09-04-001], 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 that your submission reached us, please enclose 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 now plan to hold a public meeting. But you may submit a request for a meeting by writing to MSO Milwaukee 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 .

This security zone is necessary to safeguard the PGA Championship Tour players and attendees from potential waterborne threats and hazards. Due to the high profile nature and extensive publicity associated with this event, the Captain of the Port (COTP) expects a significantly large number of spectators in confined areas adjacent to Lake Michigan. As such, the COTP is proposing to implement a security zone to ensure the safety and security of both participants and spectators in these areas beginning on August 9, 2004 and concluding on August 17, 2004. Security zone enforcement would occur daily between 7 a.m. and 8 p.m.

The Coast Guard proposes to establish a security zone that would include all waters and adjacent shoreline encompassed by the following coordinates: starting at 43°49.845′ N, 087°43.079′ W; then east to 43°49.28′ N, 087°42.93′ W; then north to 43°52.591′ N, 087°43.426′ W; then going west to 43°52.05′ N, 087°43.33′ W; then following the shoreline back to point of origin. These coordinates are based upon North American Datum 1983 (NAD 83). This security zone would be enforced daily from 7 p.m. until 8 p.m. on August 9, 2004 until 8 p.m. August 17, 2004.

The Coast Guard would notify the public about this security zone, in advance, by way of the Ninth Coast Guard District Local Notice to Mariners, the Broadcast Notice to Mariners, and, for those who request it, from MSO Milwaukee, by facsimile (fax).

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 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 it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This determination is based on the minimal time that vessels would be restricted from the zone.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic 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, moor or anchor in a portion of the activated security zone.

This security zone would not have a significant economic impact on a substantial number of small entities for the following reasons: This rule would be in effect for only the 9 days of the event and vessel traffic can safely pass outside of the proposed security zone during the event.

If you think 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 proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. 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 MSO Milwaukee ( 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).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that this rule does not have implications for federalism.

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 an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule would not affect 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.

We have 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 would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it 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. We invite your comments on how this proposed rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

We have 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. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have analyzed this proposed rule under Commandant Instruction M16475.1D, 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 a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

EPA has established an official public docket for this action under Docket ID No. OAR-2003-0214. The official public docket is the collection of materials that is available for public viewing at the Air and Radiation Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air and Radiation Docket is (202) 566-1744.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket identification number.

Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified above.

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 in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, 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 EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number 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, and made available in EPA's electronic 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.

Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. Once in the system, select “search,” and then key in Docket ID No. OAR-2003-0214. 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.

Comments may be sent by electronic mail (e-mail) to a-and-r-docket@epamail.epa.gov, Attention Docket ID No. OAR-2003-0214. In contrast to EPA's electronic public docket, EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly to the Docket without going through EPA's electronic public docket, 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, and made available in EPA's electronic public docket.

You may submit comments on a disk or CD-ROM that you mail to the mailing address identified below. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Send your comments to: Air and Radiation Docket, Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460], Attention: Docket ID No. OAR-2003-0214.

3. By Hand Delivery or Courier. Deliver your comments to: Air and Radiation Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC, Attention: Docket ID No. OAR-2003-0214. Such deliveries are only accepted during the Docket's normal hours of operation as identified above.

Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. 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 public docket and EPA's electronic public docket. 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 docket and EPA's electronic public docket 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 docket 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.

The Federal Government began regulating vehicle exhaust emissions in the late 1960's. At that time, fuel economy was not considered an area of concern. However, the fuel shortage crisis in 1973 placed an urgent focus on fuel efficiency, and created a new demand for accurate and comparable fuel economy information.

In evaluating how to accomplish this, it was determined that the data collected during EPA's vehicle emission test could be used to calculate a “city” fuel economy estimate. The same methods for calculating vehicle emission, involving determining the volume and composition of various components in the exhaust, could be used to calculate the quantity of fuel consumed. At the time of the 1973 fuel shortage crisis, the emission test data from 1974 models had already been collected by EPA. Thus, it was relatively simple to use that data to calculate the fuel economy for those vehicles and compile that information into the first “Fuel Economy Guide”. Because the data was collected under tightly controlled laboratory conditions, it allowed for comparisons amongst the different vehicle models. Moreover, it was an efficient method for vehicle manufacturers, since a single test could serve two purposes—emission and fuel economy measurements.

The downside of using the data collected for regulation of exhaust emissions was that it encompassed only one type of driving: urban stop-and-go at lower average speeds. Higher speed highway driving was not simulated for the emissions test. EPA responded to this concern by establishing a separate “highway” driving test that simulated sustained moderate speed operation typical of an urban highway.

In 1975 Congress passed the Energy Policy and Conservation Act (EPCA), Public Law 94-163. EPCA established fuel economy labeling information requirements and Corporate Average Fuel Economy (CAFÉ) standards, and was based on EPA's voluntary program. It also codified the use of the—“highway” driving cycle. For vehicle labeling, it required that EPA's fuel economy test results be posted on a label affixed to all new cars and light trucks, and that the label values for those vehicles be published in an annual consumer booklet, which is known as the Fuel Economy Guide. (Fuel Economy Guides for the present and past model years are available at www.fueleconomy.gov; the fuel economy estimates are also included in EPA's Green Vehicle Guide, www.epa.gov/greenvehicles. )

Shortly after the fuel economy labeling program was established, EPA began receiving consumer complaints that they were not achieving their “city” and “highway” fuel economy label values during actual on-road operation. EPA determined that the label values allowed relative comparisons from one vehicle to another but were less effective at estimating the actual mileage of in-use vehicles. This was due to the differences between the strictly controlled laboratory conditions and the real-world conditions that could impact individual experiences with fuel economy ( e.g. extreme climate conditions, driving habits, lack of proper maintenance, higher driving speeds, severe traffic congestion, etc. ). Many of these factors tend to lower fuel economy compared to the laboratory test conditions used by EPA when measuring vehicle fuel economy. In response to this concern, EPA evaluated the data available at the time on in-use fuel economy and established adjustment factors which reduced the “city” estimate by 10 percent and the “highway” estimate by 22 percent. (49 FR 13832, April 6, 1984). The number of consumer complaints declined significantly after the adjustment factors became effective. These adjusted results are currently used for the fuel economy values posted on vehicle labels and in the Fuel Economy Guide.

The petition submitted to EPA from Bluewater Network, San Francisco CA, concerns the accuracy of fuel economy label values. Bluewater Network believes that despite the adjustments made to the city and highway fuel economy values, EPA's fuel economy label values still overstate what consumers actually achieve. Bluewater Network contends that the primary causes for this discrepancy are increased highway speeds, a higher proportion of urban driving and greater city traffic congestion which have occurred since EPA's procedures and adjustment factors were established. They have requested that EPA issue a rulemaking to revise its test procedures to more accurately reflect what the average consumer will achieve.

The Bluewater Network petition was addressed to both EPA and the Department of Transportation (DOT). Both EPA and the DOT's National Highway Traffic Safety Administration (NHTSA) have specific statutorily defined roles regarding vehicle fuel economy. ( See Energy Policy and Conservation Act, 49 U.S.C. 32901 et seq. ) By this Notice, EPA is soliciting comment on the petition, specifically on the accuracy of fuel economy label values.

Bluewater Network's complete petition is available from their Web site, the docket or from the individual listed under FOR FURTHER INFORMATION CONTACT above.

EPA is soliciting comments on Bluewater Network's petition regarding fuel economy information in order to assist EPA in determining whether to grant or deny the petition. Comments from all interested parties are requested concerning EPA regulations implementing the fuel economy program as discussed in the petition and other related fuel economy information issues.

EPA is specifically requesting comments on whether current national driving patterns have changed in a manner that directionally impacts fuel economy. We also request the submission of any recent data that compares in-use fuel economy with the EPA city and highway label values, including data from vehicles operated on gasoline, diesel, and alternative fuels (such as CNG and LPG), and hybrid electric vehicles. Diesel and alternative fuel passenger cars and light trucks were not common in the early 1980's and therefore were not represented in the data used to determine the existing adjustment factors. Similarly, hybrid vehicles did not exist at that time. Also requested is information and/or data about how any specific conditions that may have an impact on fuel economy, such as air conditioning usage, road conditions, driving patterns, driving habits, etc., may have changed over time. Finally, we request information on why any changes in those conditions could have an impact on fuel economy. Please send all comments to the address indicated above under SUPPLEMENTARY INFORMATION above.

For additional information see the direct final rule which is published in the Rules section of this Federal Register .

This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM) in WC Docket No. 04-36, FCC 04-28, adopted February 12, 2004, and released March 10, 2004. The complete text of this NPRM is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW, Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail at qualexint@aol.com. It is also available on the Commission's Web site at http://www.fcc.gov.

Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. All filings should refer to WC Docket No. 04-36. Comments filed through ECFS can be sent as an electronic file via the Internet at http://www.fcc.gov/e-file/ecfs.html. Only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, postal service mailing address, and the applicable docket number, which in this instance is WC Docket No. 04-36. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfshelp@fcc.gov, and should include the following words in the regarding line of the message: “get form<your e-mail address>.” A sample form and directions will be sent in reply.

Parties who choose to file by paper must file an original and four copies of each filing. Parties filing by paper must also send five (5) courtesy copies to the attention of Janice M. Myles, Wireline Competition Bureau, Competition Policy Division, 445 12th Street, SW., Suite 5-C327, Washington, DC 20554, or via e-mail janice.myles@fcc.gov. Paper filings and courtesy copies must be delivered in the following manner. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail).

The Commission's contractor, Natek, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. This facility is the only location where hand-delivered or messenger-delivered paper filings or courtesy copies for the Commission's Secretary and Commission staff will be accepted. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

Each comment and reply comment must include a short and concise summary of the substantive arguments raised in the pleading. Comments and reply comments must also comply with section 1.48 and all other applicable sections of the Commission's rules. We direct all interested parties to include the name of the filing party and the date of the filing on each page of their comments and reply comments. All parties are encouraged to utilize a table of contents, regardless of the length of their submission.

1. Background. IP is a protocol used to transmit data in a packetized format. Widespread common usage of IP-based applications has facilitated the proliferation of a great variety of services, including the world wide web, e-mail, file transfer, instant messaging, and virtual private networks, each of which can integrate audio, video and data functionality to provide capabilities beyond those traditionally available via the public circuit-switched network. Moreover, IP-enabled services provide consumers with opportunities for customization beyond those offered by circuit-switched voice services, including virtual telephone numbers, unified messaging, and call management. Finally, these services generally may transit wireline, wireless, cable, or other broadband facilities, promoting inter-platform competition.

2. Several carriers transport voice calls over their backbone IP networks, and recently consumers—in both the residential and enterprise markets—have more widely begun to substitute IP-enabled services and applications for traditional circuit-switched network voice calls. Cable providers and traditional wireline carriers have deployed or announced plans to deploy IP-enabled voice services to consumers. Consumers have also begun to use peer-to-peer IP-enabled voice applications to facilitate direct communication over their existing broadband facilities.

3. The prospect that IP-enabled services might come to be used as substitutes for the public circuit-switched network requires that the Commission examine the extent, if any, to which regulations currently applied to circuit-switched telephony should also be applied to any class of IP-enabled service. However, the Commission's examination must also recognize that these IP-enabled services differ in critical ways from traditional telephony, and that these differences may have important consequences for the Commission's decisions.

4. Categorizing IP Enabled Services. The Commission seeks comment on how, if at all, it should distinguish among IP-enabled services, and requests comment on several potential grounds for categorization, including (among others) the degree to which a service is functionally equivalent to traditional telephony; the degree to which a service is viewed as a substitute for traditional telephony; and whether a service interconnects with the PSTN and/or uses traditional telephone numbers. The Commission also asks commenters to propose any appropriate ground for categorization not specified in the NPRM.

5. Jurisdictional Considerations. The NPRM seeks comment on the jurisdictional nature of IP-enabled services. The Commission recently concluded that Pulver.com's Free World Dialup (FWD) service is an unregulated information service subject to Federal jurisdiction, and that it would in any event be inappropriate to apply the Commission's traditional end-to-end jurisdictional analysis to FWD. The Commission seeks comment on whether these conclusions also apply to other classes of IP-enabled services. Additionally, comment is sought on other grounds for Federal jurisdiction over IP-enabled services. Finally, the NPRM seeks comment on whether there is any ground for asserting exclusive Federal jurisdiction over all or some IP-enabled services, including but not limited to the Supremacy Clause or Commerce Clause of the U.S. Constitution, section 253 of the Communications Act, or section 332 of the Communications Act.

6. Appropriate Legal and Regulatory Framework. The NPRM seeks comment on which IP-enabled services (if any) should be classified as telecommunications services, which (if any) should be classified as information services, and the effect, if any, of recent judicial decisions on the Commission's discretion to make such classifications. Comments are also requested regarding how the Commission should achieve important Federal policy goals, including whether it should use its ancillary jurisdiction for those IP-enabled services classified as information services or its forbearance authority for those services classified as telecommunications services. The Commission encourages specific, pragmatic proposals that will account for the technical, economic and other features that differentiate IP-enabled services from other services. Finally, the Commission seeks comment on the relevance of certain existing rules in the context of IP-enabled services and on what constraints there may be on the Commission's authority to revisit its existing interpretation of the statutory terms “telecommunications service” and “information service.”

7. Specific Regulatory Requirements: 911/E911. The Commission seeks comment on the current capabilities of VoIP services to deliver traditional callback and location information. Additionally, comments are requested on means by which IP-enabled services can be used to improve current 911 and E911 services. Finally, the Commission seeks comment on whether any existing IP-enabled services satisfy the criteria established by the Commission to determine whether a service should be subject to some form of 911/E911 regulation and whether those criteria form the appropriate bases for determining whether IP-enabled services should be subject to those requirements.

8. Specific Regulatory Requirements: Disability Access . The NPRM invites comment regarding how the Act's requirements concerning the accessibility of communications equipment and services to the disabled should be applied in the context of IP-enabled services. Commenters are invited to refresh the record compiled in the context of a previous Notice of Inquiry concerning the applicability of section 255 to IP telephony. Finally, the NPRM seeks comment regarding how migration to IP-enabled services will affect the Commission's statutory obligation to ensure that interstate and intrastate telecommunications relay services are available to hearing-impaired and speech-impaired individuals.

9. Specific Regulatory Requirements: Carrier Compensation . Comments are invited on the extent to which access charges should apply to VoIP or other IP-enabled services.

10. Specific Regulatory Requirements: Universal Service . The NPRM seeks comment on how the regulatory classification of IP-enabled services, including VoIP, would affect the Commission's ability to fund universal service. Several related issues have been raised previously in other Commission proceedings, and parties are encouraged to incorporate into this docket any relevant prior filings. In this proceeding, commenters are invited to address obligations and entitlements of both facilities-based and non-facilities-based providers of IP-enabled services.

11. Specific Regulatory Requirements: Title III . To the extent that providers of IP-enabled services use wireless technology to deliver such services, they may fall within the ambit of Title III of the Act, which provides the structure for the Commission's regulation of spectrum-based services, including broadcasting and all other services that use radio waves. Section 332 of the Act provides a specific framework for Commercial Mobile Radio Service (CMRS) providers. Given the Commission's previous history of forbearance from application of economic regulation to CMRS providers, the NPRM seeks comment on the impact of Section 332 on IP-enabled services offered by CMRS providers, and what other effect Title III may have on the provision or regulation of IP-enabled services provided in whole or in part over a wireless platform. In addition, comments are requested as to whether the Commission should distinguish among wireless providers of IP-enabled services based on the nature of their spectrum use ( e.g. fixed mobile, licensed/unlicensed).

12. Specific Regulatory Requirements: Title VI . Often, IP-enabled services are provided over cable facilities. The Commission seeks comment on what impact, if any, the provision of broadband over cable plant should have on its treatment of IP-enabled services, as well as any effect that Title VI of the Act might have on any potential regulation of cable-based IP-enabled services. If the Commission classifies IP-enabled services as telecommunications services, should it forbear from applying certain Title II provisions to cable providers offering IP-enabled services, and what would be the basis for such forbearance? The NPRM also asks whether any class of IP-enabled service should be construed to be a “cable service” under the Act.

13. Specific Regulatory Requirements: Other Requirements . The Commission also seeks comment on a number of other provisions in the Act, including consumer protection requirements and economic regulations set forth in Title II of the Act and in previous Commission orders.

14. Other Considerations . The NPRM invites comment on the implications of decisions in this docket for rural carriers, which generally face high operating expenses and equipment costs and rely on intrastate access charges for revenues. Comments are also requested on potential implications for international issues including settlement rates, the ability of consumers to use their IP CPE overseas to send and receive calls, and foreign policy or trade concerns. Additionally, comments are invited regarding the effect of IP-enabled services on numbering resources. The NPRM also requests comment regarding other policy objectives, including the interest in maintaining an open network architecture. Finally, the NPRM seeks comment regarding the availability of enforcement mechanisms to address disputes between IP-enabled service providers and their customers and between or among two or more providers.

As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared the present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities that might result from this NPRM. See 5 U.S.C. 603, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Public Law 104-121, 110 Stat. 857 (1996). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM provided above. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. See 5 U.S.C. 603(a).

This NPRM examines issues relating to services and applications making use of Internet Protocol (IP), including but not limited to voice over IP (VoIP) services (collectively, “IP-enabled services”). IP-enabled “services” could include the digital communications capabilities of increasingly higher speeds, which use a number of transmission network technologies, and which generally have in common the use of the Internet Protocol. Some of these may be highly managed to support specific communications functions. IP-enabled “applications” could include capabilities based in higher-level software that can be invoked by the customer or on the customer's behalf to provide functions that make use of communications services. The NPRM states that the Commission must examine what its role should be in this new environment of increased consumer choice and power, and asks whether it can best meet its role of safeguarding the public interest by continuing its established policy of minimal regulation of the Internet and the services provided over it.

To assist the Commission in its analysis of how properly to treat IP-enabled services, the NPRM seeks comment on ways in which the Commission might distinguish among such services, and on what regulatory treatment, if any, would be appropriate for different classes of service. The NPRM then requests comment on whether the services comprising each category constitute “telecommunications services” or “information services” under the definitions set forth in the Act. Finally, recognizing the central importance of these legal classifications but also highlighting the Commission's statutory forbearance authority and Title I ancillary jurisdiction, the NPRM describes a number of central regulatory requirements (including, for example, those relating to access charges, universal service, the 911 and E911 systems, and disability accessibility), and asks which, if any, should apply to each category of IP-enabled services.

The legal basis for any action that may be taken pursuant to this NPRM is contained in sections 1, 4(i), and 4(j) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and 154(j), and sections 1.1, 1.48, 1.411, 1.412, 1.415, 1.419, and 1.1200-1.1216, of the Commission's rules, 47 CFR 1.1, 1.48, 1.411, 1.412, 1.415, 1.419, and 1.1200-1.1216.

The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules. 5 U.S.C. 603(b)(3), 604(a)(3).The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 5 U.S.C. 601(3) A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). 15 U.S.C. 632. This present NPRM might, in theory, reach a variety of industries; out of an abundance of caution, we have attempted to cast a wide net in describing categories of potentially affected small entities. We would appreciate any comment on the extent to which the various entities might be affected by our action.

Small Businesses . Nationwide, there are a total of approximately 22.4 million small businesses, according to SBA data.

Small Organizations . Nationwide, there are approximately 1.6 million small organizations.

Small Governmental Jurisdictions. The term “small governmental jurisdiction” is defined as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” As of 1997, there were approximately 87,453 governmental jurisdictions in the United States. This number includes 39,044 county governments, municipalities, and townships, of which 37,546 (approximately 96.2%) have populations of fewer than 50,000, and of which 1,498 have populations of 50,000 or more. Thus, we estimate the number of small governmental jurisdictions overall to be 84,098 or fewer.

(i) Wireline Carriers and Service Providers . The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope. We have nevertheless included small incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

Incumbent Local Exchange Carriers (LECs) . Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under the SBA's Wired Telecommunications Carriers standard for small businesses (1,500 or fewer employees), 1,032 incumbent LECs would be deemed small.

Competitive Local Exchange Carriers (CLECs), Competitive Access Providers (CAPs), “Shared-Tenant Service Providers,” and “Other Local Service Providers.” Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. Under the SBA's Wired Telecommunications Carriers standard for small businesses (1,500 or fewer employees), 458 CLECs or CAPs would be deemed small businesses. In addition, 16 carriers have reported that they are “Shared-Tenant Service Providers,” and all 16 are estimated to have 1,500 or fewer employees.

Local Resellers. Under the SBA's Wired Telecommunications Carriers standard for small businesses (1,500 or fewer employees), an estimated 127 local resellers would be deemed small businesses.

Toll Resellers. Under the SBA's Wired Telecommunications Carriers standard for small businesses (1,500 or fewer employees), an estimated 590 toll resellers would be deemed small businesses.

Payphone Service Providers (PSPs). Under the SBA's Wired Telecommunications Carriers standard for small businesses (1,500 or fewer employees), an estimated 757 PSPs would be deemed to be small businesses.

Interexchange Carriers (IXCs). Under the SBA's Wired Telecommunications Carriers standard for small businesses (1,500 or fewer employees), an estimated 223 interexchange carriers would be deemed to be small businesses.

Operator Service Providers (OSPs). Under the SBA's Wired Telecommunications Carriers standard for small businesses (1,500 or fewer employees), an estimated 22 OSP would be deemed small businesses.

Prepaid Calling Card Providers. Under the SBA's Wired Telecommunications Carriers standard for small businesses (1,500 or fewer employees), an estimated 36 prepaid calling card providers would be deemed small businesses.

800 and 800-Like Service Subscribers. Under the SBA's Wired Telecommunications Carriers standard for small businesses (1,500 or fewer employees), we estimate that there are 7,692,955 or fewer small entity 800 subscribers; 7,706,393 or fewer small entity 888 subscribers; and 1,946,538 or fewer small entity 877 subscribers.

(ii) International Service Providers. The appropriate size standards under SBA rules are for the two broad categories of Satellite Telecommunications and Other Telecommunications. Under both categories, such a business is small if it has $12.5 million or less in average annual receipts. For the first category of Satellite Telecommunications, Census Bureau data for 1997 show that there were a total of 324 firms that operated for the entire year. Census data for 1997 shows that 273 Satellite Telecommunications firms had annual receipts of under $10 million. The second category—Other Telecommunications—includes “establishments primarily engaged in * * * providing satellite terminal stations and associated facilities operationally connected with one or more terrestrial communications systems and capable of transmitting telecommunications to or receiving telecommunications from satellite systems.” According to Census Bureau data for 1997, 424 firms had annual receipts of $5 million to $9,999,999.

(iii) Wireless Telecommunications Service Providers. Wireless Service Providers. The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” and “Cellular and Other Wireless Telecommunications.” Under both SBA categories, a wireless business is small if it has 1,500 or fewer employees. Census Bureau data for 1997 show that 1,303 paging firms had employment of 999 or fewer employees, and an additional 17 paging firms had employment of 1,000 employees or more. For the census category Cellular and Other Wireless Telecommunications, Census Bureau data for 1997 show that 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more.

Cellular Licensees. According to the most recent Commission data, 719 carriers reported that they were engaged in the provision of cellular service, Personal Communications Service (PCS), or Specialized Mobile Radio (SMR) Telephony services, which are placed together in the data. Under the SBA standard that businesses with 1500 or fewer employees are deemed small, we have estimated that 294 of these are small, under the SBA's small business size standard.

Common Carrier Paging. For the census category of Paging, Census Bureau data for 1997 show that 1,303 firms had employment of 999 or fewer employees, and an additional 17 firms had employment of 1,000 employees or more. Under the SBA's small business size standard, we estimate that the majority of these businesses are small.

Wireless Communications Services. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission established small business size standards for the wireless communications services (WCS) auction. A “small business” is an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” is an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these small business size standards. The Commission auctioned geographic area licenses in the WCS service. In the auction, there were seven winning bidders that qualified as “very small business” entities, and one that qualified as a “small business” entity.

Wireless Telephony . Wireless telephony includes cellular, personal communications services (PCS), and specialized mobile radio (SMR) telephony carriers. Under the SBA's small business size standard, we estimate that 294 wireless telephony carriers are small.

Broadband Personal Communications Service. The broadband Personal Communications Service (PCS) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission defined “small entity” for Blocks C and F as an entity that has average gross revenues of $40 million or less in the three previous calendar years. For Block F, an additional classification for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years.” These standards defining “small entity” in the context of broadband PCS auctions have been approved by the SBA. No small businesses, within the SBA-approved small business size standards, bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 small and very small business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. On March 23, 1999, the Commission re-auctioned 347 C, D, E, and F Block licenses. There were 48 small business winning bidders. On January 26, 2001, the Commission completed the auction of 422 C and F Broadband PCS licenses in Auction No. 35, and 29 successful bidders qualified as “small” or “very small” businesses.

Narrowband Personal Communications Services. For purposes of two past auctions of narrowband personal communications services (PCS) licenses, “small businesses” were defined as entities with average gross revenues for the prior three calendar years of $40 million or less. Through these auctions, the Commission has awarded a total of 41 licenses, out of which 11 were obtained by small businesses. To ensure meaningful participation of small business entities in future auctions, the Commission has adopted a two-tiered small business size standard in the Narrowband PCS Second Report and Order. A “small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $40 million. A “very small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $15 million. The SBA has approved these small business size standards.

220 MHz Radio Service—Phase I Licensees. According to the Census Bureau data for 1997, only 12 wireless firms out of a total of 1,238 such firms that operated for the entire year, had 1,000 or more employees. Consequently, under the SBA's small business standard, we estimate that a very small minority of such firms are small.

220 MHz Radio Service—Phase II Licensees. Phase II 220 MHz service is a new service, and is subject to spectrum auctions. For purposes of the auctions, we adopted a small business size standard for “small” and “very small” businesses for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. This small business size standard indicates that a “small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. A “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that do not exceed $3 million for the preceding three years. The SBA has approved these small business size standards. After two auctions of these Phase II licenses, fourteen winning companies that claimed small business status won 158 licenses.

800 MHz and 900 MHz Specialized Mobile Radio Licenses. The Commission awards “small entity” and “very small entity” bidding credits in auctions for Specialized Mobile Radio (SMR) geographic area licenses in the 800 MHz and 900 MHz bands to firms that had revenues of no more than $15 million in each of the three previous calendar years, or that had revenues of no more than $3 million in each of the previous calendar years, respectively. The Commission has held auctions for geographic area licenses in the 800 MHz and 900 MHz SMR bands. There were 60 winning bidders that qualified as small or very small entities in the 900 MHz SMR auctions. Of the 1,020 licenses won in the 900 MHz auction, bidders qualifying as small or very small entities won 263 licenses. In the 800 MHz auction, 38 of the 524 licenses won were won by small and very small entities. Consequently, the Commission estimates that there are 301 or fewer small entity SMR licensees in the 800 MHz and 900 MHz bands.

700 MHz Guard Band Licensees. In the 700 MHz Guard Band Order, we adopted a small business size standard for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A “small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. Additionally, a “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. An auction of 52 Major Economic Area (MEA) licenses commenced on September 6, 2000, and closed on September 21, 2000. Five of the winning bidders were small businesses that won a total of 26 licenses. A second auction of 700 MHz Guard Band licenses commenced on February 13, 2001 and closed on February 21, 2001. One winning bidder was a small business and won a total of two licenses.

Rural Radiotelephone Service. Under the SBA's small business standard, the Commission estimates that there are 1,000 or fewer small entity licensees in the Rural Radiotelephone Service.

Air-Ground Radiotelephone Service. There are approximately 100 licensees in the Air-Ground Radiotelephone Service, and under the SBA's small business standard, we estimate that almost all of them qualify as small.

Aviation and Marine Radio Services. Small businesses in the aviation and marine radio services use a very high frequency (VHF) marine or aircraft radio and, as appropriate, an emergency position-indicating radio beacon (and/or radar) or an emergency locator transmitter. Under the SBA's small business standard, we estimate that there are up to approximately 712,000 licensees that are held by small businesses or individuals. In addition, between December 3, 1998 and December 14, 1998, the Commission held an auction of 42 VHF Public Coast licenses in the 157.1875-157.4500 MHz (ship transmit) and 161.775-162.0125 MHz (coast transmit) bands. For purposes of the auction, the Commission defined a “small” business as an entity that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed $15 million dollars. In addition, a “very small” business is one that, together with controlling interests and affiliates, has average gross revenues for the preceding three years not to exceed $3 million dollars. There are approximately 10,672 licensees in the Marine Coast Service, and the Commission estimates that almost all of them qualify as “small” businesses under the above special small business size standards.

Fixed Microwave Services. Fixed microwave services include common carrier, private operational-fixed, and broadcast auxiliary radio services. At present, there are approximately 22,015 common carrier fixed licensees and 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission does not have data specifying the number of these licensees that have more than 1,500 employees, and thus is unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA's small business size standard.

Offshore Radiotelephone Service. This service operates on several UHF television broadcast channels that are not used for television broadcasting in the coastal areas of states bordering the Gulf of Mexico. There are presently approximately 55 licensees in this service. We are unable to estimate at this time the number of licensees that would qualify as small under the SBA's small business size standard.

39 GHz Service. The Commission created a special small business size standard for 39 GHz licenses—an entity that has average gross revenues of $40 million or less in the three previous calendar years. An additional size standard for “very small business” is: an entity that, together with affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. The SBA has approved these small business size standards. The auction of the 2,173 39 GHz licenses began on April 12, 2000 and closed on May 8, 2000. The 18 bidders who claimed small business status won 849 licenses.

Multipoint Distribution Service, Multichannel Multipoint Distribution Service, and ITFS. Multichannel Multipoint Distribution Service (MMDS) systems, often referred to as “wireless cable,” transmit video programming to subscribers using the microwave frequencies of the Multipoint Distribution Service (MDS) and Instructional Television Fixed Service (ITFS). In connection with the 1996 MDS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of less than $40 million in the previous three calendar years. The MDS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition of a small business. MDS also includes licensees of stations authorized prior to the auction. In addition, the SBA has developed a small business size standard for Cable and Other Program Distribution, which includes all such companies generating $12.5 million or less in annual receipts. According to Census Bureau data for 1997, there were a total of 1,311 firms in this category that had operated for the entire year. Of this total, 1,180 firms had annual receipts of under $10 million and an additional 52 firms had receipts of $10 million or more but less than $25 million. This SBA small business size standard also appears applicable to ITFS. There are presently 2,032 ITFS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities. Thus, we tentatively conclude that at least 1,932 licensees are small businesses.

Local Multipoint Distribution Service. Local Multipoint Distribution Service (LMDS) is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications. The auction of the 1,030 Local Multipoint Distribution Service (LMDS) licenses began on February 18, 1998 and closed on March 25, 1998. The Commission established a small business size standard for LMDS licenses as an entity that has average gross revenues of less than $40 million in the three previous calendar years. An additional small business size standard for “very small business” was added as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. The SBA has approved these small business size standards in the context of LMDS auctions. There were 93 winning bidders that qualified as small entities in the LMDS auctions. A total of 93 small and very small business bidders won approximately 277 A Block licenses and 387 B Block licenses. On March 27, 1999, the Commission re-auctioned 161 licenses; there were 40 winning bidders. Based on this information, we conclude that the number of small LMDS licenses consists of the 93 winning bidders in the first auction and the 40 winning bidders in the re-auction, for a total of 133 small entity LMDS providers.

218-219 MHz Service. The first auction of 218-219 MHz spectrum resulted in 170 entities winning licenses for 594 Metropolitan Statistical Area (MSA) licenses. Of the 594 licenses, 557 were won by entities qualifying as a small business. For that auction, the small business size standard was an entity that, together with its affiliates, has no more than a $6 million net worth and, after federal income taxes (excluding any carry over losses), has no more than $2 million in annual profits each year for the previous two years.

24 GHz—Incumbent Licensees. According to Census Bureau data for 1997, there were 977 licensees that operated for the entire year. Of this total, 965 firms employed 999 or fewer employees, and an additional 12 firms employed 1,000 employees or more. Thus, under the SBA's standard for small businesses, the great majority of firms can be considered small.

24 GHz—Future Licensees. With respect to new applicants in the 24 GHz band, the small business size standard for “small business” is an entity that, together with controlling interests and affiliates, has average annual gross revenues for the three preceding years not in excess of $15 million. “Very small business” in the 24 GHz band is an entity that, together with controlling interests and affiliates, has average gross revenues not exceeding $3 million for the preceding three years. The SBA has approved these small business size standards. These size standards will apply to any future auctions, if held.

Cable and Other Program Distribution. This category includes cable systems operators, closed circuit television services, direct broadcast satellite services, multipoint distribution systems, satellite master antenna systems, and subscription television services. The SBA has developed small business size standard for this census category, which includes all such companies generating $12.5 million or less in revenue annually. According to Census Bureau data for 1997, there were a total of 1,311 firms in this category that had operated for the entire year. Of this total, 1,180 firms had annual receipts of under $10 million and an additional 52 firms had receipts of $10 million or more but less than $25 million.

Cable System Operators (Rate Regulation Standard). Under the Commission's rules, a “small cable company” is one serving fewer than 400,000 subscribers nationwide. The most recent estimates indicate that there were 1,439 cable operators who qualified as small cable system operators at the end of 1995.

Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore is unable, at this time, to estimate more accurately the number of cable system operators that would qualify as small cable operators under the size standard contained in the Communications Act of 1934.

Open Video Services. Open Video Service (OVS) systems provide subscription services. The SBA has created a small business size standard for Cable and Other Program Distribution. This standard provides that a small entity is one with $12.5 million or less in annual receipts. The Commission estimates that up to 24 OVS operators might qualify as small businesses that may be affected by the rules and policies adopted herein.

Internet Service Providers. The SBA has developed a small business size standard for Internet Service Providers (ISPs). ISPs “provide clients access to the Internet and generally provide related services such as web hosting, web page designing, and hardware or software consulting related to Internet connectivity.” Under the SBA size standard, such a business is small if it has average annual receipts of $21 million or less. According to Census Bureau data for 1997, there were 2,751 firms in this category that operated for the entire year. Of these, 2,659 firms had annual receipts of under $10 million, and an additional 67 firms had receipts of between $10 million and $24, 999,999. Consequently, we estimate that the majority of these firms are small entities that may be affected by our action.

Web Search Portals. We note that, in this NPRM, we have described activities such as email, online gaming, web browsing, video conferencing, instant messaging, and other, similar IP-enabled services. The Commission has not adopted a size standard for entities that create or provide these types of services or applications. However, the census bureau has identified firms that “operate web sites that use a search engine to generate and maintain extensive databases of Internet addresses and content in an easily searchable format. Web search portals often provide additional Internet services, such as e-mail, connections to other web sites, auctions, news, and other limited content, and serve as a home base for Internet users.” The SBA has developed a small business size standard for this category; that size standard is $6 million or less in average annual receipts. According to Census Bureau data for 1997, there were 195 firms in this category that operated for the entire year. Of these, 172 had annual receipts of under $5 million, and an additional nine firms had receipts of between $5 million and $9,999,999. Consequently, we estimate that the majority of these firms are small entities that may be affected by our action.

Data Processing, Hosting, and Related Services. Entities in this category “primarily * * * provid[e] infrastructure for hosting or data processing services.” The SBA has developed a small business size standard for this category; that size standard is $21 million or less in average annual receipts. According to Census Bureau data for 1997, there were 3,700 firms in this category that operated for the entire year. Of these, 3,477 had annual receipts of under $10 million, and an additional 108 firms had receipts of between $10 million and $24,999,999. Consequently, we estimate that the majority of these firms are small entities that may be affected by our action.

All Other Information Services. “This industry comprises establishments primarily engaged in providing other information services (except new syndicates and libraries and archives).” We note that, in this NPRM, we have described activities such as e-mail, online gaming, web browsing, video conferencing, instant messaging, and other, similar IP-enabled services. The SBA has developed a small business size standard for this category; that size standard is $6 million or less in average annual receipts. According to Census Bureau data for 1997, there were 195 firms in this category that operated for the entire year. Of these, 172 had annual receipts of under $5 million, and an additional nine firms had receipts of between $5 million and $9,999,999. Consequently, we estimate that the majority of these firms are small entities that may be affected by our action.

Internet Publishing and Broadcasting. “This industry comprises establishments engaged in publishing and/or broadcasting content on the Internet exclusively. These establishments do not provide traditional (non-Internet) versions of the content that they publish or broadcast.” The SBA has developed a small business size standard for this new (2002) census category; that size standard is 500 or fewer employees. To assess the prevalence of small entities in this category, we will use 1997 Census Bureau data for a relevant, now-superseded census category, “All Other Information Services.” The SBA small business size standard for that prior category was $6 million or less in average annual receipts. According to Census Bureau data for 1997, there were 195 firms in the prior category that operated for the entire year. Of these, 172 had annual receipts of under $5 million, and an additional nine firms had receipts of between $5 million and $9,999,999. Consequently, we estimate that the majority of these firms are small entities that may be affected by our action.

Software Publishers. These companies may design, develop or publish software and may provide other support services to software purchasers, such as providing documentation or assisting in installation. The companies may also design software to meet the needs of specific users. The SBA has developed a small business size standard of $21 million or less in average annual receipts for all of the following pertinent categories: Software Publishers, Custom Computer Programming Services, and Other Computer Related Services. For Software Publishers, Census Bureau data for 1997 indicate that there were 8,188 firms in the category that operated for the entire year. Of these, 7,633 had annual receipts under $10 million, and an additional 289 firms had receipts of between $10 million and $24,999,999. For providers of Custom Computer Programming Services, the Census Bureau data indicate that there were 19,334 firms that operated for the entire year. Of these, 18,786 had annual receipts of under $10 million, and an additional 352 firms had receipts of between $10 million and $24,999,999. For providers of Other Computer Related Services, the Census Bureau data indicate that there were 5,524 firms that operated for the entire year. Of these, 5,484 had annual receipts of under $10 million, and an additional 28 firms had receipts of between $10 million and $24,999,999.

Equipment Manufacturers. In this NPRM, we invite comment on whether the disability access provisions of sections 255 and 252(a)(2) of the Act, as well as the Commission's Rules implementing these statutes in the Disability Access Order, apply in the context of VoIP and other IP-enabled services. Section V.B.1 notes that sections 255 and 252(a)(2) and the Commission's implementing rules apply to manufacturers of equipment that the Act and the rules deem covered by the provisions. The Commission currently does not collect data regarding how many, or which, companies manufacture such equipment. Thus, out of an abundance of caution, we have perhaps been over-inclusive in creating the following list of possibly covered entities. Again, commenters are invited to comment on these categories and on the possible number of small entities within these categories.

Wireless Communications Equipment Manufacturers. The SBA has established a small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. Examples of products in this category include “transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment” and may include other devices that transmit and receive IP-enabled services, such as personal digital assistants (PDAs). Under the SBA size standard, firms are considered small if they have 750 or fewer employees. According to Census Bureau data for 1997, there were 1,215 establishments in this category that operated for the entire year. Of those, there were 1,150 that employed fewer than 500 employees, and an additional 37 that employed 500 to 999 employees. The percentage of wireless equipment manufacturers in this category was approximately 61.35%, so we estimate that the number of wireless equipment manufacturers with employment of under 500 was actually closer to 706, with an additional 23 establishments having employment of between 500 and 999. Consequently, we estimate that the majority of these firms are small entities that may be affected by our action.

Telephone Apparatus Manufacturing. This category “comprises establishments primarily engaged in manufacturing wire telephone and data communications equipment.” Examples of pertinent products are “central office switching equipment, cordless telephones (except cellular), PBX equipment, telephones, telephone answering machines, and data communications equipment, such as bridges, routers, and gateways.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 1,000 or fewer employees. According to Census Bureau data for 1997, there were 598 establishments in this category that operated for the entire year. Of these, 574 had employment of under 1,000, and an additional 17 establishments had employment of 1,000 to 2,499. Consequently, we estimate that the majority of these firms are small entities that may be affected by our action.

Electronic Computer Manufacturing. This category “comprises establishments primarily engaged in manufacturing and/or assembling electronic computers, such as mainframes, personal computers, workstations, laptops, and computer servers.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 1,000 or fewer employees. According to Census Bureau data for 1997, there were 563 establishments in this category that operated for the entire year. Of these, 544 had employment of under 1,000, and an additional 11 establishments had employment of 1,000 to 2,499. Consequently, we estimate that the majority of these establishments are small entities that may be affected by our action.

Computer Terminal Manufacturing. “Computer terminals are input/output devices that connect with a central computer for processing.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 1,000 or fewer employees. According to Census Bureau data for 1997, there were 142 establishments in this category that operated for the entire year, and all of the establishments had employment of under 1,000. Consequently, we estimate that the majority or all of these establishments are small entities that may be affected by our action.

Other Computer Peripheral Equipment Manufacturing. Examples of peripheral equipment in this category include keyboards, mouse devices, monitors, and scanners. The SBA has developed a small business size standard for this category of manufacturing; that size standard is 1,000 or fewer employees. According to Census Bureau data for 1997, there were 1,061 establishments in this category that operated for the entire year. Of these, 1,046 had employment of under 1,000, and an additional six establishments had employment of 1,000 to 2,499. Consequently, we estimate that the majority of these establishments are small entities that may be affected by our action.

Fiber Optic Cable Manufacturing. These establishments manufacture “insulated fiber-optic cable from purchased fiber-optic strand.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 1,000 or fewer employees. According to Census Bureau data for 1997, there were 38 establishments in this category that operated for the entire year. Of these, 37 had employment of under 1,000, and one establishment had employment of 1,000 to 2,499. Consequently, we estimate that the majority of these establishments are small entities that may be affected by our action.

Other Communication and Energy Wire Manufacturing. These establishments manufacture “insulated wire and cable of nonferrous metals from purchased wire.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 1,000 or fewer employees. According to Census Bureau data for 1997, there were 275 establishments in this category that operated for the entire year. Of these, 271 had employment of under 1,000, and four establishments had employment of 1,000 to 2,499. Consequently, we estimate that the majority or all of these establishments are small entities that may be affected by our action.

Audio and Video Equipment Manufacturing. These establishments manufacture “electronic audio and video equipment for home entertainment, motor vehicle, public address and musical instrument amplifications.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 750 or fewer employees. According to Census Bureau data for 1997, there were 554 establishments in this category that operated for the entire year. Of these, 542 had employment of under 500, and nine establishments had employment of 500 to 999. Consequently, we estimate that the majority of these establishments are small entities that may be affected by our action.

Electron Tube Manufacturing. These establishments are “primarily engaged in manufacturing electron tubes and parts (except glass blanks).” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 750 or fewer employees. According to Census Bureau data for 1997, there were 158 establishments in this category that operated for the entire year. Of these, 148 had employment of under 500, and three establishments had employment of 500 to 999. Consequently, we estimate that the majority of these establishments are small entities that may be affected by our action.

Bare Printed Circuit Board Manufacturing. These establishments are “primarily engaged in manufacturing bare ( i.e. , rigid or flexible) printed circuit boards without mounted electronic components.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 500 or fewer employees. According to Census Bureau data for 1997, there were 1,389 establishments in this category that operated for the entire year. Of these, 1,369 had employment of under 500, and 16 establishments had employment of 500 to 999. Consequently, we estimate that the majority of these establishments are small entities that may be affected by our action.

Semiconductor and Related Device Manufacturing. These establishments manufacture “computer storage devices that allow the storage and retrieval of data from a phase change, magnetic, optical, or magnetic/optical media.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 500 or fewer employees. According to Census Bureau data for 1997, there were 1,082 establishments in this category that operated for the entire year. Of these, 987 had employment of under 500, and 52 establishments had employment of 500 to 999.

Electronic Capacitor Manufacturing. These establishments manufacture “electronic fixed and variable capacitors and condensers.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 500 or fewer employees. According to Census Bureau data for 1997, there were 128 establishments in this category that operated for the entire year. Of these, 121 had employment of under 500, and four establishments had employment of 500 to 999.

Electronic Resistor Manufacturing. These establishments manufacture “electronic resistors, such as fixed and variable resistors, resistor networks, thermistors, and varistors.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 500 or fewer employees. According to Census Bureau data for 1997, there were 118 establishments in this category that operated for the entire year. Of these, 113 had employment of under 500, and 5 establishments had employment of 500 to 999.

Electronic Coil, Transformer, and Other Inductor Manufacturing. These establishments manufacture “electronic inductors, such as coils and transformers.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 500 or fewer employees. According to Census Bureau data for 1997, there were 448 establishments in this category that operated for the entire year. Of these, 446 had employment of under 500, and two establishments had employment of 500 to 999.

Electronic Connector Manufacturing. These establishments manufacture “electronic connectors, such as coaxial, cylindrical, rack and panel, pin and sleeve, printed circuit and fiber optic.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 500 or fewer employees. According to Census Bureau data for 1997, there were 347 establishments in this category that operated for the entire year. Of these, 332 had employment of under 500, and 12 establishments had employment of 500 to 999.

Printed Circuit Assembly (Electronic Assembly) Manufacturing. These are establishments “primarily engaged in loading components onto printed circuit boards or who manufacture and ship loaded printed circuit boards.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 500 or fewer employees. According to Census Bureau data for 1997, there were 714 establishments in this category that operated for the entire year. Of these, 673 had employment of under 500, and 24 establishments had employment of 500 to 999.

Other Electronic Component Manufacturing. These are establishments “primarily engaged in loading components onto printed circuit boards or who manufacture and ship loaded printed circuit boards.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 500 or fewer employees. According to Census Bureau data for 1997, there were 1,835 establishments in this category that operated for the entire year. Of these, 1,814 had employment of under 500, and 18 establishments had employment of 500 to 999.

Computer Storage Device Manufacturing. These establishments manufacture “computer storage devices that allow the storage and retrieval of data from a phase change, magnetic, optical, or magnetic/optical media.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 1,000 or fewer employees. According to Census Bureau data for 1997, there were 209 establishments in this category that operated for the entire year. Of these, 197 had employment of under 500, and eight establishments had employment of 500 to 999.

None at this time.

The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 5 U.S.C. 603(c).

The NPRM expressly states that the Commission may ultimately need to differentiate among various IP-enabled services, and that regulation may be deemed inappropriate with regard to most, if not all, IP-enabled services, applications or providers. It thus seeks comment on the appropriate grounds on which to differentiate among providers of IP-enabled services. The NPRM further seeks comment on the appropriate legal classification for each category of IP-enabled services, and on which regulatory requirements, if any, should be applied to services falling into each category. The NPRM makes no conclusions regarding which regulations, if any, would apply to any entity, including small entities. We seek comment here on the effect various proposals will have on small entities, and on the effect alternative rules would have on those entities.

None.

15. Pursuant to the authority contained in sections 1, 4(i), and 4(j) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), this Notice of Proposed Rulemaking is adopted.

16. That the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with the Regulatory Flexibility Act.

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 04-67, adopted March 10, 2004, and released March 12, 2004. The full text of this Commission decision is available for inspection and copying during regular business hours in the FCC's Reference Information Center at Portals II, 445 12th Street, SW., CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractors, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com .

The provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, See 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows:

Booster seats are designed for children who have outgrown a convertible or toddler child restraint system. They are generally designed for children who are about 4 to 8 years old, and who weigh more than 18 kg. Shield booster seats, which are capable of being used with only a vehicle's lap belt, were available in the past, but became unavailable for children weighing over 18 kg subsequent to an upgrade that NHTSA made to the standard pursuant to the Intermodal Surface Transportation Efficiency Act (“ISTEA”) of 1991 (Pub. L. 102-240). That Act directed NHTSA to initiate rulemaking on a number of safety matters, including child booster seat safety (§ 250). The legislative history for the directive indicated that its impetus was a study finding that shield booster seats then manufactured could not adequately restrain test dummies representing the children for whom the seats were recommended by the manufacturers. In the study  1 , the boosters could not adequately restrain a 22 kg (48 lb) test dummy (representing a 6-year-old) when dynamically tested under Standard 213. The boosters were ineffective at limiting head excursions to within the requirements of Standard 213, and two of the boosters failed structurally. The boosters also failed to prevent the ejection of a 9 kg (20 lb) test dummy (representing a 9-month-old child) in the dynamic test. These phenomena were observed notwithstanding the recommendation of some booster seat manufacturers that their seats were suitable for children weighing from 9 up to 32 kg (20 up to 70 lb). 2

In response to this study and to the ISTEA directive, NHTSA amended Standard 213 in two ways. First, the standard was amended to permit the manufacture of belt-positioning booster seats (59 FR 37167, July 21, 1994). A belt-positioning booster seat is designed to use both portions of a vehicle's Type II belt to restrain the child. A belt-positioning seat is not directly attached to the vehicle seat, but is held in place by the child's mass and the vehicle's Type II belt, which is strapped over the child's lap and torso, just as the Type II belt is used to restrain an adult occupant. A belt-positioning seat must not be used with a vehicle's lap belt alone, since the seat lacks structure or an internal belt to restrain the child's upper torso. Second, NHTSA also incorporated the 6-year-old and 9-month-old dummies into the standard's compliance test protocols, to ensure a more thorough evaluation of the ability of a child restraint to adequately restrain children recommended for the restraint, as compared to testing done with only the 3-year-old dummy. Beginning in September 1996, any child restraint recommended for children weighing over 18 kg must be able to comply with the standard when tested with the 6-year-old child dummy (60 FR 35126, July 6, 1995; 60 FR 63651, December 12, 1995).

Comments from manufacturers and others on the proposal to use the 6-year-old dummy in compliance tests did not indicate that shield boosters manufactured at the time of the rulemaking could not comply. To the extent there were any shield boosters that could not pass the standard's requirements with the 6-year-old dummy, NHTSA anticipated that manufacturers might (1) design their seats to achieve compliance (such as by raising the height of the shield relative to the child's torso), (2) label shield boosters as being suitable for children weighing less than 18 kg (and thus avoid testing with the 6-year-old dummy), or (3) replace production of shield boosters with belt-positioning boosters. While the latter two responses to the final rule have occurred, manufacturers have not redesigned shield boosters to pass Standard 213 with the 6-year-old dummy. Thus, the shield boosters manufactured today are not recommended for use with the shield by children over 18 kg.

On December 4, 1997, Ms. Kathleen Weber of the University of Michigan Child Passenger Protection Research Program, submitted a petition for rulemaking to amend Federal Motor Vehicle Safety Standard No. 213, “Child Restraint Systems” (49 CFR 571.213). The petition, which NHTSA granted on January 30, 1998, concerns the manufacture of child restraints that can be used by families in pre-1989 model year vehicles. These vehicles are permitted to have only lap belts in rear seating positions.

The petitioner suggests that Standard 213 be amended to allow—

The petitioner notes that—

An example of such a “hybrid” seat is Century's Breverra booster car seat, which is recommended for children 14 to 45 kg (30 to 100 lb). The Breverra has a removable 5-point harness system. When used with children weighing up to 18 kg (40 lb), the Breverra is used with the 5-point harness, and the restraint is secured to the vehicle seat by either a Type I or Type II belt. This configuration (using the restraint system with children weighing up to 18 kg (40 lb), and restraining them with the internal 5-point harness) is what the petitioner refers to as the “toddler mode.” The Breverra is also designed for use as a belt-positioning booster seat with children 14 to 45 kg (30 to 100 lb). Parents are instructed to remove the 5--point harness from the booster seat, and to use the vehicle's Type II belt to restrain the child. Because seats such as the Breverra are designed for use both as a “toddler seat” and as a “belt-positioning booster seat,” the petitioner refers to them as “hybrid” restraints.

The petitioner seeks to permit child restraints to be certified as meeting the standard when recommended for children up to 20 kg (45 lb) in the toddler mode (using the 5-point harness, attached to the vehicle by lap belt). Currently, restraints recommended for children up to 20 kg are tested with the 6-year-old dummy. At the time the petition was submitted, child restraints were required to limit head excursion to a maximum of 813 mm (32 inches (in)) when tested dynamically in a simulated 30 mph frontal crash in accordance with Standard 213. Because of the increased height and higher center of gravity of the 6-year-old dummy as compared to the 3-year-old dummy, convertible and hybrid restraints were not typically able to meet the 813-mm head excursion limit when tested with the 6-year-old dummy in the toddler mode (using the 5-point harness), untethered. As the basis for the petition, the petitioner presumes they could meet the 813-mm limit when tethered.

The effect of the petition would be to eliminate the requirement for child restraints to meet the 813-mm head excursion requirement when tested with the 6-year-old dummy, untethered, as long as the same restraint meets the 813-mm head excursion limit when tested with a tether attached. Further, the petitioner suggests that the same restraints should be required to meet all of Standard 213's requirements with the 3-year-old dummy untethered. Petitioner states:

At the time of the petition, NHTSA did not require a tether on child restraints or a tether anchorage on vehicles. The agency did not prohibit a tether, but generally required child restraints to meet Standard 213's 48 km/hr (30 mph) dynamic testing requirements without attaching a tether to reflect the historically low use rate of tethers in this country in vehicles that did not have factory-equipped tether anchors. As such, all child restraints recommended for use by children weighing under 22.7 kg (50 pounds) (the limit of Standard 213) were required to limit head excursion to a maximum of 813 mm in the dynamic test.

As noted above, nonuse of the tether has been a problem in the U.S. In an effort to boost use rates, NHTSA once proposed requiring all vehicles under 4536 kg (10,000 lb) GVWR to have tether anchorages at all rearmost seating positions, to make it possible for motorists to easily attach the tether straps on their child restraints to the vehicle (45 FR 81625; December 11, 1980). At the time of the proposal, tether use was about 50 percent. NHTSA terminated rulemaking on this proposal after determining that (a) since the proposal, there was a continual shift toward untethered seats, so that most seats did not need a tether to meet Standard 213's requirements; (b) motor vehicle manufacturers had increasingly been voluntarily providing provisions, such as indentations to identify anchorage points and pre-drilled or threaded holes to facilitate the attachment of tether straps; and (c) the most effective way to promote child safety would be to amend Standard 213 to require all child restraints to meet Standard 213's requirements without attachment of the tether (50 FR 27632; July 5, 1985).

As part of the agency's development of Standard 225, “Child Restraint Anchorage Systems,” NHTSA concluded that a top tether should be provided to better secure child restraints. By restraining the top portion of a child seat, a tether would supplement the vehicle belt system in limiting forward movement of the child restraint in a crash. With less forward movement, head excursion could be reduced. However, instead of expressly requiring child restraints to have a top tether strap, NHTSA established a performance requirement that has the practical effect of requiring a tether on child restraints. NHTSA established a new head excursion requirement for forward-facing child restraints that limits excursion to 720 mm (28.35 inches) forward of the Z-point on the FMVSS No. 213 test seat assembly when a child restraint is attached to the standard seat assembly in accordance with the manufacturer's recommendations. To meet this requirement, manufacturers provide a top tether, which is attached in the test for this new requirement. The agency felt that the head excursion limit of 720 mm was practicable with a tether because it is the same as a Canadian requirement and because most, if not all, child restraint manufacturers currently produce child restraints for sale in Canada and thus already meet the requirements for those products.

NHTSA concluded however, that tethers would be much more likely to be used if child seats are equipped with a tether and if vehicles are equipped with a factory-installed, easy- and ready-to-use tether anchorage. Citing experience with respect to higher tether use rates in Australia and Canada where factory installed tether anchorages and/or tether hardware are available, NHTSA required vehicle manufacturers to begin installing factory-installed, user-ready tether anchorages (with hardware) in new vehicles beginning September 1, 1999.

NHTSA conducted a test program at our Vehicle Research and Test Center (VRTC) in March 1998, to evaluate the performance of various types of child restraints in restricting the amount of head excursion of the 6-year-old dummy. In developing this test program, NHTSA asked child restraint manufacturers and the National Transportation Safety Board (NTSB) for suggestions as to which approaches and products should be evaluated. One objective of this test program was to obtain baseline information on the dynamic performance of a “typical” shield-type booster seat, tested with the 6-year-old dummy while secured to the vehicle seat by a lap belt only. It was presumed that this type of seat was unable to meet the 813 mm head excursion requirement of Standard 213, and had therefore resulted in child restraint manufacturers limiting these restraints to use for children weighing no more than 18 kg. Pre-test discussions with restraint manufacturers confirmed that Standard 213's head injury criterion (HIC), chest acceleration, and knee excursion parameters did not pose concerns when testing this type of restraint with the 6-year-old dummy. Rather, because of the increase in height and weight of the 6-year-old dummy as compared to the 3-year-old dummy—1168 versus 965 mm standing height (46 versus 38 inches), and 22 versus 15 kg in weight (48 versus 33 lb)—the standard's head excursion limit was the issue. The shield portion of the restraint apparently does not provide adequate upper torso restraint to limit the head excursion within acceptable limits when subjected to Standard 213's dynamic test. NHTSA chose the Cosco Grand Explorer as a representative shield-type booster for the baseline test.

The test program also evaluated a combination forward-facing toddler/high-back belt-positioning booster seat, utilizing its internal 5-point harness, secured to the vehicle seat by a lap belt and a top tether. This represented the specific configuration recommended in the Weber petition. NHTSA chose the Century Breverra, which comes with an optional top tether, as a representative seat for the test program.

NHTSA also tested two convertible seats. Pre-test conversations with restraint manufacturers indicated that there may be some convertible restraints that are equipped with tethers which may also perform adequately when attached to the vehicle seat with a lap belt only, when restraining the 6-year-old dummy. Not all convertible restraints were equipped with a top tether strap at the time, and not all convertible restraints were able to accommodate the 6-year-old dummy. Britax Child Safety, Inc. indicated that they manufactured two convertible restraints, the “Roundabout” with a standard top tether and the “Elite” with an optional top tether attachment, which they felt would perform satisfactorily in a crash test with the 6-year-old dummy when the restraint was secured to the vehicle seat by a lap belt and top tether. Accordingly, NHTSA included both of the Britax convertible restraints in the subject test program.

At the time of the test program, the only commercially available products marketed specifically for children weighing over 18 kg and secured with a lap belt only were the 86-Y-harness and vest systems produced by E-Z-On Products. Both of these systems required the use of a top tether. The 86-Y harness system consisted of two shoulder straps extending from the top tether anchorage, and looped ends to allow the vehicle lap belt to be routed through and fastened over the pelvic area. The vest system functioned similarly, with a single strap extending from the top tether anchorage that split into two separate straps with hardware that attached to rings located on each shoulder of the vest, and the vehicle lap belt threaded through web loops on the bottom of each side of the vest. Both the 86-Y harness and the vest systems were included in the test program for evaluation.

The dynamic sled tests were conducted at VRTC, and were based on the test conditions and procedures prescribed in S6 of Standard No. 213. This test program was intended for research only and did not precisely replicate compliance testing. The VRTC tests evaluated the ability of the restraints at limiting head excursion, HIC, chest acceleration, and knee excursion. The test conditions were fixed throughout the sled test series, with the only variable being the particular restraint being tested and its attachment method ( i.e. tethered or untethered). With the exception of the baseline test utilizing the shield booster seat, each restraint was tested in each attachment configuration on two separate sled runs. Two identical shield boosters were tested, but on the same sled run rather than separate sled runs as with the other restraints.

All tests were conducted using the 6-year-old dummy, and each of the restraints—whether tethered or untethered—was attached to the vehicle test seat using a lap belt only. At that time, Standard 213's limits were as follows: HIC—1000; chest acceleration—60g; head excursion—813 mm; and knee excursion—914 mm (36 in). 3 The full test results are provided in Table 1. It is important to note that in each of the tests conducted, values for both the HIC and chest acceleration parameters were typically significantly below the established limits prescribed in Standard 213, and none exceeded the maximum allowable limits.

While NHTSA anticipated that shield-type boosters could not meet the 813-mm head excursion limit of the standard when tested with the 6-year-old dummy, test results showed that when tested in this configuration, the Cosco Grand Explorer shield booster seats used for the baseline testing satisfactorily limited head excursion to under 762 mm (30 inches) in both instances. In addition, knee excursion was measured to be 254 to 300 mm (10 to 12 inches) below the 914 mm limit. As these head and knee excursion measurements were in direct contrast with the Calspan and VRTC studies conducted in support of NHTSA's ISTEA rulemakings on booster seats, NHTSA conducted a second set of testing to evaluate three other then-available shield-type booster seats (the Gerry Double Guard, Evenflo Sidekick, and Fisher Price T-Shield). As before, each seat was tested twice, on separate test runs, to enhance the repeatability of the test results. In each instance, the measured head excursion significantly exceeded the 813 mm limit of Standard 213, ranging from 874 to 1016 mm (34.5 to 40.0 inches). The measured knee excursion was well within the FMVSS No. 213 limit of 914 mm in each of these tests, ranging from 749 mm to 838 mm (29.5 to 33 inches). These results more closely paralleled those recorded in the earlier tests conducted by Calspan and VRTC. Full test results are provided in Table 2.

Following the baseline tests with the shield-type booster seats, the agency tested the Century Breverra hybrid booster both with and without the top tether strap. In the tethered configuration, head excursion was measured to be below 762 mm (30 inches), and knee excursion was measured to be below the 914 mm limit (although only marginally in one instance at 904 mm). However, in each of the test runs conducted using the untethered configuration, head and knee excursions beyond the respective 813 and 914 mm limits were measured, with marginal reductions in both the HIC and chest acceleration parameters. It should be noted that a total of three test runs were conducted using the untethered configuration, as the test dummy slipped out of the child restraint during the second test run due to a failure of the 5-point harness, voiding the measurement of head and knee excursion. Interestingly, a comparison between the untethered shield-type boosters used in the baseline testing and the tethered hybrid booster (forward facing with internal harness/high-back belt-positioning booster) indicates that the untethered shield booster performs marginally better (on average) with respect to limiting head excursion and significantly better with respect to limiting knee excursion than the hybrid booster.

Two convertible restraints were evaluated in the same manner, first with a top tether strap attached and then without. In the tethered configuration, the Britax Roundabout limited head excursion to 622 and 574 mm (24.5 and 22.6 inches) in the two tests performed, well below the 813 mm limit prescribed in the standard and also well below the results observed in the baseline test with the shield-type booster. Knee excursion measurements were also well below the established limit. However, whereas the untethered hybrid toddler/booster restraint configuration resulted in unacceptable head and knee excursions, the untethered Roundabout configuration limited both head and knee excursion within acceptable limits (although only marginally with respect to head excursion in the first test at 810.26 mm (31.90 inches)). Additionally, while the untethered hybrid toddler/booster restraint tests resulted in reduced HIC and chest acceleration measurements, the untethered Roundabout tests resulted in reduced chest acceleration measurements but increased HIC values.

The second convertible restraint, the Britax Elite, demonstrated similar results. In the tethered configuration, head excursion was limited to 640 and 580 mm (25.2 and 22.85 inches) in the two tests performed, again well below the 813 mm limit prescribed in the standard and also well below the results observed in the baseline test with the shield-type booster. Knee excursion measurements were also well below the established limit. However, each of the tests conducted in the untethered configuration resulted in head excursion measurements that marginally (820 and 821 mm) (32.29 and 32.35 inches) exceed the 813 mm limit, while knee excursion measurements remained within acceptable limits.

The two different E-Z On products, the 86-Y harness and the vest, were the only products marketed for children over 18 kg that do not require the use of a shoulder harness to attach to the vehicle. Both of these systems require the use of a tether. Test results show that the 86-Y harness system dramatically limited head excursion to 495 and 474 mm (19.5 and 18.65 inches) on the two tests, or approximately 33 percent below the 813 mm limit prescribed in the standard, and significantly below the other tethered systems. Knee excursion was also limited to values well below established limits.

E-Z On markets two different styles of the vest system. The first is an adjustable vest, which can be adjusted for fit as the child grows via three different zipper locations on the back of the vest. This was not used in this test program, as the vest, when configured in its smallest size, was still too large to properly fit the 6-year-old test dummy. E-Z On also manufactures fitted or custom vests, provided to the consumer based on anatomical measurements of the child as provided to E-Z On. NHTSA utilized a fitted vest in this testing program, although it should be noted that the vest provided by the manufacturer for this testing was very tight on the 6-year-old dummy, and the next larger size would likely have provided a better fit. The E-Z On vest system was tested utilizing a top tether strap. The head and knee excursion values were both well below established limits. The chest acceleration was 59.3 g, marginally below the limit of 60 g. This high value for chest acceleration may be partially attributable to the very snug fit of the vest on the test dummy.

On July 7, 1999, NHTSA published a Request for Comment (64 FR 36657) to obtain information that would aid in determining whether Standard 213 should be amended as proposed by the petitioner. Following publication of the notice, the petitioner wrote the agency and expressed concern that the issues raised in the petition had been misinterpreted and/or misstated in the notice (Docket No. 99-5891-8). The petitioner felt that the text of the notice wrongly suggested that the petitioner offered tethered booster seats as an option to properly restrain children weighing more than 18 kg in seating positions equipped with only lap belts. The petitioner emphasized that the proposal would permit manufacturers to certify any child restraint system—not only boosters—for weights up to 20.4 kg (45 lb) if those restraints could meet the requirements of Standard 213 when tested with the 6-year-old dummy with the use of a tether. 4

The agency received comments from child restraint manufacturers (Fisher-Price 5 , E-Z-On, Cosco), auto manufacturers and associated trade organizations (Ford, NADA), child passenger safety advocate groups (SafetyBeltSafe USA, National Safe Kids Campaign), the medical community (AAP, Children's Hospital of Philadelphia(CHOP)), the National Transportation Safety Board (NTSB), and eight individuals. Generally, commenters (1) agreed that appropriate restraints need to be developed to facilitate the proper protection of children above 40 pounds in vehicles equipped with only lap belts; (2) differed on whether they feel tether use will improve over that documented by the agency in the past, with many feeling that the introduction of FMVSS 225 will prompt an increased awareness about the benefits of tether use, and therefore, increase tether usage; and (3) noted that while alternative means of protecting older children are currently available ( i.e., vest and harness systems, retrofit shoulder belts) that these alternatives are often costly and/or difficult to obtain via traditional retail avenues.

The request for comments posed a number of questions that asked for comments and data on specific issues relating to the petition. Responses to these questions are summarized as follows:

Question 1: How likely are tethers to be used in vehicles that lack user-ready tether anchorages? NHTSA noted that tether use in vehicles not originally equipped with tether anchorages has been very low in this country, and asked if there are data showing that tether use in such vehicles will be greater than it has been in the past. Donald and Roberta Wegeng replied stating:

Question 2: Is a child better off in an untethered booster or seated directly on the vehicle seat and restrained by a lap belt? Are there alternative approaches? Citing Fatality Analysis Reporting System (FARS) and Multiple Cause of Death (MCOD) data from 1988 through mid-1997, the agency noted that (1) children 5-14 appear to derive the greatest incremental benefit from using back seat lap/shoulder belts rather than just a lap belt when compared to the other age and sex groups evaluated in the study, (2) children ages 5-14 do not have an increased risk of abdominal injuries compared to occupants in other age groups, but (3) the head injury rate for the same children, seated in the back seat in frontal crashes restrained by a lap belt only, is double that of those children restrained with a lap and shoulder belt (and thus provided with upper torso protection similar to what could be expected through the use of child restraint systems).

The agency asked for information regarding “lap belt syndrome,” which refers to bruising across the abdomen, internal injuries and lower spine fractures which, allegedly, are caused mainly by a lap belt that is used incorrectly or that moves off the child's pelvis during a crash. The agency also requested comment on approaches that would eliminate, or alternatively, extend the existing limit on head excursion when testing child restraints with the 6-year-old dummy, untethered. Most commenters felt that an untethered child restraint would be preferable to a lap belt only for children, but generally did not have specific data to support their position. Rather, commenters noted that child restraints would provide some measure of upper torso protection, as compared to none with lap belts only. Cosco and CHOP stated that FARS data is probably not an adequate source for making a judgement, in that this data source only includes fatal crashes and cannot provide estimates for child exposure to non-fatal or non-injury crashes. CHOP noted:

Both child restraint manufacturers, Fisher-Price and Cosco, along with the AAP, opposed increasing the head excursion limit when testing with the 6-year-old dummy untethered. Fisher-Price stated that “increasing the head excursion limit to 34” based on what is possible with current products does not seem appropriate without first determining what is a safe limit for the older/taller child in today's vehicles.”

Question 3: Should the test that evaluates child restraint performance without attaching the tether be deleted for all restraints, not just hybrid toddler/booster restraints? Should the test be deleted when testing with dummies other than the 6-year-old? NHTSA asked, if the agency would consider deleting the head excursion requirement for hybrid boosters when testing with the 6-year-old dummy untethered, should the same requirements be similarly revised when testing other types of restraints ( i.e., convertible child restraints) or testing with other dummies ( i.e., the 3-year-old dummy)? Donald and Roberta Wegeng, Fisher-Price, Cosco, AAP, and CHOP all opposed deleting the untethered test currently required by Standard 213. The AAP noted:

Ford provided differing viewpoints in its comments, stating, in part:

Question 4: Why are shield boosters no longer manufactured for children weighing over 18 kg (40 lb)? NHTSA requested information, particularly from child restraint manufacturers, concerning the reasons shield-type booster seats are no longer marketed for children weighing more than 18 kg. The two manufacturers that responded, Fisher-Price and Cosco presented differing viewpoints regarding the performance of shield boosters. Fisher-Price stated:

On the other hand, Cosco provided the following:

Question 5: What is the feasibility of redesigning hybrid/toddler booster restraints such that the restraint can be certified for use with older children, without the use of a tether? Both Fisher-Price and Cosco commented that it may be possible to design a child restraint appropriate for older children that can be certified under Standard 213's 813-mm head excursion limits without the use of a tether. Ford, however, was critical of the suggestion that hybrid/toddler boosters be redesigned to meet the requirements of Standard 213 using a 6-year-old dummy untethered, stating:

Question 6: Is the suggested amendment warranted when there are products now available for older children that may perform better than a tethered seat at limiting head excursion? E-Z-On Products, Inc. manufactures vest and harness restraint systems for use with a lap belt and tether. Vests and harnesses are “child restraint systems” under Standard 213 and are certified as meeting all requirements of the standard. NHTSA's March 1998 test program evaluated the performance of E-Z-On's products in limiting the amount of head excursion of the 6-year-old dummy. In brief, the tethered vest and harness performed much better than the tethered hybrid booster or tethered convertible restraint at limiting head excursion. Based on this, NHTSA noted that vests and harnesses could address the petitioner's concerns and provide a viable alternative to consumers. However, NHTSA noted that because the vest and harness systems do not “look like” traditional child restraint systems, they might not be as readily accepted by some consumers as a tethered hybrid or convertible seat might be. NHTSA requested input regarding the performance and public acceptance of the E-Z-On devices.

Comments submitted by Ford and Fisher-Price acknowledge that data from NHTSA's testing of the E-Z-On products demonstrate the ability of those products to provide adequate restraint in lap belt only seating positions (with a tether). However, Ford, Fisher-Price, Donald and Roberta Wegeng, Cosco, AAP, and CHOP all cite various concerns regarding the availability and/or acceptance of the E-Z-On products, which in turn, leads the commenters to conclude that the vest and harness systems should not be relied on as the preferred method by which to restrain children in lap belt only equipped seating positions. Specifically, Ford (“these products have been available for many years, and have not achieved significant acceptance, except for niche markets”); Fisher-Price (“the convenience of vest and harness systems, however, leaves much to be desired”); Donald and Roberta Wegeng (“the products that are currently available are not readily or easily available”); Cosco (“the products cited can be expensive and are not available at retail, where most people shop for car seats”); AAP (“we are not aware of any evidence to indicate that a tether would more likely be used with a vest than with a hybrid booster”); and CHOP (“the E-Z-On vest and Y harness are not easily obtained by parents and do not look like traditional child restraints and as a result, may not be readily accepted by consumers”) all provided information supporting the adoption of alternative solutions to vest and harness systems as a means by which to address the concerns of the petitioner. Further, Cosco and CHOP both noted that while the E-Z-On products were very effective in limiting head and knee excursion of the dummies during the dynamic testing, the tethered hybrid boosters and convertible restraints that were tested generally performed better than the E-Z-On products with respect to HIC and chest acceleration parameters.

Question 7: Would adoption of the suggested amendment inappropriately encourage some parents to position restraints in the center rear seating position? Petitioner only addressed the need of consumers with pre-1989 vehicles, but adoption of the suggested amendment could also affect the preference of parents who wish to install a booster seat in the center rear position (which is typically equipped with only a lap belt). NHTSA and others have long supported the placement of children in child restraints in the center rear seating position, when possible, to minimize the number and severity of injuries in side impact crashes. However, optimal performance of the restraint, if the suggested proposal were adopted, is dependent on attachment of the tether. An untethered seat in the center rear seat is unlikely to perform as effectively as an untethered belt-positioning booster used at the outboard seating position with a lap and shoulder belt. NHTSA requested comments regarding whether adoption of the proposed amendment might further confuse the public regarding the correct restraint choice and/or seating location for children weighing more than 18 kg.

The AAP responded, stating:

Other commenters offered varying opinions. Ford commented that “this is not a significant concern,” while Fisher-Price noted that “if a new misuse scenario is created, then obviously misuse potential increases.”

Question 8: What is the feasibility of retrofitting a rear seat shoulder belt in pre-1989 vehicles? NHTSA noted that many vehicle manufacturers offer shoulder belt retrofit kits for rear seating positions, although availability and cost of these kits tend to vary widely. We also noted that installation of a shoulder belt can benefit children who have completely outgrown a child restraint, and can also benefit adults. NHTSA requested comments regarding these retrofit kits.

Ford provided the following, specific to their vehicles:

AAP and CHOP both generally agreed with the agency's analysis that retrofit shoulder belts are often too expensive and not readily available to the consumers needing them.

At the time of the petition, there were limited options for parents of children weighing more than 18 kg in vehicles that lacked lap and shoulder belts. There were no “traditional” child restraint systems ( e.g., convertible or forward-facing child restraints, hybrid boosters, or belt-positioning boosters) that were certified above 18 kg and that could be secured to the vehicle with a lap belt only. The E-Z-On vest and harness systems were the only available child restraint systems that were certified to address this specific segment of the child and vehicle population. However, proper use of these systems requires use of a tether attachment. Also, as noted in response to the request for comments published by the agency, there have been concerns regarding the availability and/or acceptance of the E-Z-On products. These are only available through authorized E-Z-On distributors and not at retail, and do not “look like the traditional child restraints.” As such, they have typically not been readily accepted by consumers as a viable alternative to restrain children in lap belt only equipped seating positions.

NHTSA does not believe that it is likely that tether anchorages will be installed in pre-1989 vehicles. Transport Canada has required vehicles to be able to be equipped with locations suitable for the installation of tether anchorages since 1989 (the same year NHTSA mandated all vehicles be equipped with lap and shoulder belts installed in rear outboard seating positions). As virtually all vehicles manufactured for use in Canada are also manufactured for use in the U.S., most of the post-1989 vehicles still on the road today in the U.S. can be retrofitted with tether anchorages. However, in pre-1989 vehicles—the vehicles that are the focus of this petition because they have only lap belts in the rear seating positions—there is typically no tether anchorage point designated by the vehicle manufacturer. Installation of a tether anchorage in pre-1989 vehicles (1) without a designated anchorage location, and (2) lacking hardware and instructions supplied directly by the vehicle manufacturer is likely to be a difficult and costly process for a consumer. The agency believes that independent repair and body shop personnel may not be familiar with tether anchorages, and may express concern about the potential liability of installing aftermarket safety equipment. For these reasons, the agency does not believe that it is likely that tethers will be used in pre-1989 vehicles. Further, the agency is hesitant to facilitate the use of a product that is likely to be misused in the real world ( e.g., child restraints that depend on tethering when the vehicle for which it is recommended would not have a tether anchorage.)

Since the time of the petition, there have been various child restraint systems developed that address the gap existing for the combination of older vehicles and heavier children. Although Fisher-Price is no longer marketing child restraints, it had developed and marketed the first forward-facing child restraint certified for more than 18 kg that used a lap only belt to secure the restraint to the vehicle and a 5-point harness to restrain the child within the restraint. The Futura 20/60 forward-facing child restraint was certified for children weighing up to 27.2 kg (60 lb) using a 5-point-harness while secured to the vehicle with either a lap only or lap/shoulder belt combination. In addition to being the only child restraint at the time certified for more than 18 kg using a lap belt only, the Futura 20/60 was also the only forward-facing child restraint that was able to meet FMVSS No. 213's revised head excursion limit of 720 mm without the use of a tether strap.

Similarly, Britax recently marketed a different child restraint that was designed to be used with children weighing more than 18 kg with the restraint secured to the vehicle by a lap only belt. The Britax Laptop was an energy-absorbing restraint designed to reduce the impact forces that occur in a crash. The Laptop was designed to be used with either a lap belt only or a lap and shoulder belt combination, could be placed in both rear outboard and rear center seating positions, and was certified for use by children weighing up to 29.5 kg (65 lb). The agency performed compliance testing on the Britax Laptop using both the 3- and 6-year-old dummies. In each instance, the performance criteria set forth in the standard were met by a large margin. When tested with the 3-year-old dummy, the HIC was 576 (limit = 1000), the chest acceleration was 31.87 g's (limit = 60), the head excursion was 502 mm (19.75 in) (limit = 720 mm (28 in)), and the knee excursion was 544 mm (21.41 in) (limit = 915 mm (36 in)). When tested with the 6-year-old dummy, the HIC was 277, the chest acceleration was 31.73 g's, the head excursion was 599 mm (23.6 in), and the knee excursion was 530 mm (20.88 in). Britax is no longer manufacturing the Laptop for sale in the United States.

There are currently a number of child restraints available that are certified for use by children weighing more than 18 kg that can be used in vehicle seating positions equipped with lap only belts. The Britax Wizard and the Britax Marathon are convertible child restraints with 5-point harnesses that can be used forward-facing by children weighing up to 29.5 kg. The Britax Husky is a forward-facing only child restraint with a 5-point harness that is certified for children weighing up to 36.3 kg (80 lb). The Nania Airway LX Booster is a forward-facing child restraint that can be used with its 5-point harness by children weighing up to 22.7 kg.

While restraints certified for children weighing more than 18 kg in seating positions equipped with lap only belts were largely unavailable at the time this petition was submitted, the introduction of the various restraints described above has demonstrated the ability of child restraint manufacturers to devise solutions for this segment of the population. The fact that there are not more restraints currently marketed for this segment of the population could be due to the fact that it is a small population that is shrinking as the numbers of pre-1989 vehicles on the road are steadily declining in number, and will eventually be replaced by vehicles with lap and shoulder belts in the rear seats.

As part of the recently enacted “Anton's Law” (Pub. L. 5504; December 4, 2002), NHTSA has issued an NPRM to require lap and shoulder belts at rear center seating positions (68 FR 46546; August 6, 2003). Anton's Law also requires in part that NHTSA initiate a rulemaking proceeding to establish performance requirements for child restraints, including booster seats, for the restraint of children weighing more than 22.7 kg. As part of this rulemaking, the agency is required to consider “whether to address situations where children weighing more than 22.7 kg only have access to seating positions with lap belts, such as allowing tethered child restraints for such children.” (Reference Section 3(a)(3) of Anton's Law) NHTSA has initiated a program to address this specific provision of Anton's Law, which directly parallels the issues raised in Ms. Weber's petition. As a result, efforts within the agency to address the development of acceptable restraint options for children weighing more than 22.7 kg in lap belt only seating positions will continue, even though the subject rulemaking is being terminated.

For the reasons outlined above, the agency has decided to terminate the rulemaking that was initiated in response to the petition submitted by Ms. Weber.

At its 2001 meeting, ICCAT adopted recommendations for the establishment of SWO and BET statistical document programs to further the domestic and international understanding of these fisheries, and to help address illegal, unreported and unregulated (IUU) fishing for these species. More recently, IATTC also adopted a recommendation to establish a BET statistical document program similar to the ICCAT program. At its 2003 meeting, ICCAT made slight modifications to all of its statistical document forms to collect more information relevant to vessel identification and farming operations. Generally, these programs require that imports of certain fish be accompanied by a species specific statistical document, or when appropriate, a re-export certificate. The United States is a member of both ICCAT and IATTC. The purpose of this proposed rule is to implement these ICCAT and IATTC recommendations.

The Atlantic Tunas Convention Act (ATCA) of 1975 (16 U.S.C. 971 et seq. ) authorizes the promulgation of regulations as may be necessary and appropriate to implement ICCAT recommendations. The Tuna Conventions Act of 1950 (TCA)(16 U.S.C. 951 et seq. ) authorizes rulemaking to carry out IATTC recommendations. NMFS manages the Atlantic SWO and tuna fisheries under the Fishery Management Plan for Atlantic Tunas, Swordfish and Sharks (HMS FMP). Regulations implementing the HMS FMP at 50 CFR part 635 were promulgated under the authorities of the Magnuson-Stevens Fishery Conservation and Management Act (M-SA or Magnuson-Stevens Act) (16 U.S.C. 1801 et seq. ) and ATCA. NMFS manages SWO and tuna in the Pacific Ocean under the Western Pacific Pelagics Fishery Management Plan (PFMP) that was prepared by the Western Pacific Fishery Management Council (WPFMC). Regulations implementing those plans at 50 CFR parts 300 and 660 were promulgated under the authorities of the ATCA, TCA and the M-SA, respectively. The Pacific Fishery Management Council also has developed an FMP for U.S. West Coast Highly Migratory Species, which is under review.

Other authorities relevant to Pacific management include the South Pacific Tuna Act of 1988 (16 U.S.C. 973 et seq. ), the High Seas Fishing Compliance Act (16 U.S.C. 5501 et seq. ), and the U.S.-Canada Albacore Treaty. A new Western and Central Tuna Fisheries Convention is likely to come into force sometime in 2004. Customs requirements pertaining to the import and export of product harvested by national and international SWO and tuna fisheries include those under 19 U.S.C. 1 et seq. and regulations of the Bureau of Customs and Border Protection (CBP), formerly the U.S. Customs Service (Customs), under title 19 of the CFR.

International commissions such as ICCAT, IATTC, CCSBT and the Indian Ocean Tuna Commission (IOTC) have recognized the use of statistical document programs as an effective tool to combat IUU fishing by controlling the illegal trade of stocks and to improve the effectiveness of conservation and management measures and the scientific evaluation of the stocks. This proposed rule would implement such programs for BFT, SBFT, BET, and SWO in the United States, which includes the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, and all other U.S. commonwealths, territories, or possessions. Specifically, the regulations would require dealers who import, export, or re-export these species from any ocean area to hold an HMS international trade permit, complete statistical documents and re-export certificates, and submit biweekly reports on these trade activities. Documentation requirements would apply to all imports and exports of the species regardless of whether an importing or exporting nation is a member of one of the above-referenced commissions. Often, non-member countries have difficulty obtaining HMS catch information from vessels under their own flag. The statistical document programs are designed to capture these unreported catches.

ICCAT, IATTC, and IOTC individually adopted recommendations for a BET statistical document program, noting that better quality trade data would reduce uncertainty in catch information for this species. NMFS is proposing to implement a BET statistical document program, but is considering delaying implementation of the documentation requirements for fresh BET products initially and only implementing them for frozen BET products. In the past, ICCAT and IATTC have recognized that prior to implementing this program for fresh products, several practical problems need to be solved, such as guidelines to ensure procedures for handling fresh products at customs. NMFS particularly seeks public comment on this issue.

Similar to the BET program, ICCAT's SWO statistical document program is intended to track the trade of SWO and reduce IUU fishing. The United States currently requires a SWO certificate of eligibility (COE) for imports of SWO (50 CFR 635.46) to ensure that Atlantic SWO imported into the United States meet ICCAT and NMFS minimum size requirements. The ICCAT SWO statistical document program would incorporate all the requirements of the COE, thus replacing the COE requirement.

To be effective, the SWO and BET statistical document programs track the international trade of SWO and BET whose origin is from any ocean. Although ICCAT's area of concern is the Atlantic Ocean and IATTC's area of concern is the eastern Pacific Ocean, these programs would easily be circumvented if they did not also track catches from other oceans. The ocean of origin for these species, once on the international market, cannot be ascertained without documentation of the flag state of harvesting vessels and ocean areas of catch. Moreover, without validation, an importing country has no effective means to tell whether a shipment is composed of Indian Ocean product rather than Atlantic or Pacific. The trade tracking programs adopted by these international commissions assist in providing a comprehensive, global monitoring program for these species.

The BFT statistical document program, which was previously implemented in the United States pursuant to an ICCAT recommendation (60 FR 14381; March 17, 1995), set a precedent for tracking trade from all ocean areas. When it was adopted, the ICCAT recommendation for the BFT program only included a statistical document requirement for imports and exports. A 1997 ICCAT recommendation added a re-export certificate to the program; this requirement is included in this proposed rule. More recently, the CCSBT has developed a SBFT statistical document program and requested non-members such as the United States to support this program. While the United States is not a member of CCSBT and ICCAT has not issued a recommendation pertaining to SBFT, the United States proposes to implement the CCSBT SBFT program under its ATCA authority in order to ensure that there are no loopholes in the existing BFT program. The BFT reporting requirements could be circumvented if BFT is mislabeled as SBFT and not properly identified. Thus, this proposed rule would therefore require U.S. dealers importing, exporting, or re-exporting SBFT to comply with the SBFT statistical document program in order to ensure the effectiveness of the BFT program.

Prior to passing their statistical document recommendations, ICCAT, IATTC, and technical experts extensively discussed the scope of areal coverage and jurisdiction of international fishery organizations. As described below, they also discussed the specific structure and format of the statistical documents and suitability and applicability of certain exemptions.

ICCAT convened an international meeting of technical experts in July 2001 to consider and resolve technical issues related to the implementation of the recommended SWO and BET statistical document programs. Prior to this meeting, members of the U.S. fishing industry were consulted to review initial BET and SWO statistical document prototypes. Harmonization of all statistical document programs under ICCAT purview (SWO, BET, and BFT) was also considered. At the July 2001 meeting, the U.S. proposed a single, harmonized document to track BFT, SWO, and BET imports. Although this proposal was consistent with ICCAT's directive to endeavor to harmonize all statistical documents under its purview, it was rejected by the technical experts. Some experts expressed concern that the trade patterns and practices of the three species were so different that one document was not practical. In addition, some stated that there could be a risk to the current functioning and effectiveness of the current BSD program if it was altered to include additional species. As a result, ICCAT has developed separate species-specific forms for BET and SWO. This proposed rule allows the use of statistical documents from ICCAT, IATTC, or IOTC for BET relative to area of harvest. The existing statistical document for BFT will remain unchanged, and the statistical document approved by the CCSBT for SBFT will be implemented.

Harmonizing these individual forms is a long-term goal of NMFS. NMFS has begun and will continue to have discussions on how to significantly streamline the existing reporting processes, reduce paperwork, ease reporting requirements on dealers and minimize government administrative oversight. However, in the interest of implementing and complying with the ICCAT and IATTC recommendations as soon as possible, NMFS proposes to implement these separate trade tracking programs and associated paperwork through the existing internal infrastructure. Several different NMFS offices on the east and west coasts and western and central Pacific Islands already manage the operations and tracking of HMS trade and dealer activity. This proposed rule intends to implement the SWO and tuna trade tracking programs by building on the existing body of expertise and capability, thereby minimizing disruption and confusion between dealers and associated NMFS offices. Extensive coordination and consultation has taken place between the relevant NMFS offices to assist as much as possible with smooth implementation of the program, if adopted, and to assist with constituent concerns.

NMFS proposes to require a Federal HMS international trade permit for each dealer in the United States, including those in U.S. commonwealths, territories, and possessions, who import, export, or re-export BFT, SBFT, BET or SWO from any ocean area. These dealers would have to prepare and submit appropriate statistical documents and re-export certificates, complete biweekly reports and validate exports of all BFT, BET, SBFT or SWO as described below. NMFS specifically solicits public comment on implementation aspects of the proposed rule as well as ideas for future improvements.

The proposed rule would require a completed statistical document as a condition for the import or export of SBFT, BET or SWO, and a re-export certificate for re-export of all BFT, SBFT, BET or SWO shipments into or from the customs territory of the United States, which includes the States, District of Columbia, and Commonwealth of Puerto Rico, 19 CFR 101.1, and into or from the customs territories of insular possessions of the United States, which include the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and other U.S. commonwealths, territories, and possessions that are outside the customs territory of the United States, 19 CFR 7.2.The statistical document and, where appropriate, re-export certificate would be required to accompany each fresh or frozen shipment of BFT, SBFT, BET or SWO along with other shipping documentation ordinarily required for international trade.

In order to be considered complete, the species-specific statistical document or statistical document and re-export certificate accompanying each shipment would have to include the information required under proposed Subpart L to title 50 of the CFR, be certified by the exporter, importer, and re-exporter, and be validated by a government official or other non-government institution upon export or re-export, as applicable. Copies of statistical documents or re-export certificates may be obtained from NMFS (see ADDRESSES ).

Dealers re-exporting BFT, SBFT, BET or SWO that were previously imported into the customs territory of the United States or of a U.S. insular possession, must complete the intermediate importer certification section on the original statistical document that accompanied the import shipment, and complete a re-export certificate to accompany each fresh or frozen shipment of BET, BFT, SBFT, or SWO for re-export. The original statistical document that accompanied the import shipment must be included together with the original re-export certificate for re-export. If the original shipment is subdivided into sub-shipments and exported to more than one location, the original statistical document or a copy must accompany each sub-shipment along with an original re-export certificate.

The completed statistical document accompanying any import of BET, SBFT, or SWO into the customs territory of the United States or any U.S. insular possession must be validated by a responsible government official of the country whose flag vessel harvested the fish regardless of where it is first landed, unless NMFS waives this requirement for that country pursuant to a recommendation by the appropriate international commission. For BET, SBFT, or SWO exports from the United States, the accompanying statistical document must be validated by a U.S. Government official, unless an authorized waiver provides for validation by NMFS-authorized non-government officials. BFT, SBFT, BET, and SWO re-exports would also need to be validated by a U.S. Government official, unless there is an applicable waiver. In the case of a U.S. insular possession, a statistical document or re-export certificate may be validated by a U.S. Government official, authorized government official from that possession, or NMFS-authorized non-government official. For any situations where validation by someone other than a Federal NMFS official is authorized, NMFS may, in the future, consider developing a verification system that assesses whether procedures set up by third parties are working as intended. Such a verification system may include auditing, random inspections, and compliance checks

The BSD program developed by ICCAT allowed for the use of BFT dealer (BSD) tags to fulfill the validation requirement for statistical documents. However, the statistical document programs for BET, SBFT, and SWO do not include this provision and NMFS does not currently have a system for issuing dealer tags for these species. If U.S. dealers indicate an interest in having a tagging option for BET, SBFT, and SWO as an alternative method for validating statistical documents, NMFS may consider pursuing such an option at the appropriate international commission. If the use of tags is recommended, then a system for distributing, affixing, and recording tags on BET, SBFT and SWO could be developed.

For purposes of exporter certification, the exporter would be considered the person(s) or company that first exported the shipment from the country where the fish is first landed.

For purposes of the importer certification, the intermediate country importer would be considered the person(s) or company who shipped the product through an intermediate country, entering that country's customs territory as an import. An intermediate country for the purposes of these proposed regulations under 50 CFR part 300, is distinct from an intermediary nation as defined in section 3(5) of the MMPA, 16 U.S.C. 1362(5). Shipments of BET, BFT, SBFT or SWO made on a through bill of lading, or made in any other manner that does not enter the products into that country's customs territory as an import, would not make that country an intermediate country under the MMPA.

For purposes of the importer certification, the final destination importer would be considered the persons or company that is the recipient of the product at its final destination (i.e., country of consumption).

All dealers who obtain an HMS international trade permit would be required to submit biweekly reports on imports, exports, and re-exports of BFT, SBFT, BET and/or SWO. The report would have to be postmarked and mailed within 10 days after the end of each reporting period in which BFT, SBFT, BET and/or SWO were imported, exported, or re-exported. The biweekly reporting periods would be defined as the first day to the fifteenth day of each month and the sixteenth day to the last day of each month. Each report would have to specify accurately and completely for each fish or shipment of bulk frozen fish exported: date of landing or import; any tag number (if so tagged); and weight in pounds (specify if round or dressed). Negative reports would not be required.

Dealers would be required to maintain a copy of statistical documents, re-export certificates, and biweekly reports (forms) and records supporting the information provided in the forms for a period of 2 years from the date on which each form was submitted to NMFS. Also, dealers would be required to make forms and records available for inspection and duplication by any person authorized to carry out enforcement activities under these regulations, or any employee of NMFS designated by the Regional Administrator or Assistant Administrator (AA).

The Harmonized Tariff Schedule (HTS) subheading numbers for each product to which this proposed rule would apply are given below.

BFT: The re-export certificate proposed under this rule would be required for all fresh or frozen BFT products exported from or imported into the customs territory of the United States or of a U.S. insular possession and identified by HTS subheading numbers for the following:

(1) Fresh or chilled BFT, excluding fillets and other fish meat, No. 0302.39.00;

(2) Frozen BFT, excluding fillets, No. 0303.49.00.00.

SBFT: The statistical document and re-export certificate proposed under this rule would be required for all fresh or frozen SBFT products that are exported from or imported into the customs territory of the United States or of a U.S. insular possession and identified by HTS subheading numbers for the following:

(1) Fresh or chilled SBFT, excluding fish fillets and other fish meat, No. 0302.36.00.00;

(2) Frozen SBFT, No. 0303.46.00.00.

BET: The statistical document and re-export certificate proposed under this rule would be required for all fresh or frozen BET products that are exported from or imported into the customs territory of the United States or of a U.S. insular possession and identified by HTS subheading numbers for the following:

(1) Fresh or chilled BET tuna, excluding fillets and other fish meat, No. 0302.34.00.00;

(2) Frozen BET tuna, excluding fillets, No. 0303.44.00.00.

NMFS is considering whether implementation should be delayed for fresh BET, and specifically seeks comment on this issue.

SWO: The statistical document and re-export certificate proposed under this rule would be required for all SWO in any form that are exported from or imported into the customs territory of the United States or of a U.S. insular possession and identified by any HTS subheading numbers including the following:

(1) Fresh or chilled SWO, steaks, No. 0302.69.20.41,

(2) Fresh or chilled SWO, excluding fish fillets, steaks, and other fish meat, No. 0302.69.20.49,

(3) Frozen SWO, steaks, No. 0303.79.20.41,

(4) Frozen SWO, excluding fillets, steaks and other fish meat, No. 0303.79.20.49,

(5) Fresh, chilled or frozen SWO, fillets and other fish meat No. 0304.20.60.92.

To facilitate enforcement, the AA may, in the future, designate ports of entry. If ports of entry are designated through a rulemaking, all BFT, SBFT, BET and/or SWO entering the United States would be restricted to those ports of entry. Currently, no ports of entry have been proposed.

Under this proposed rule, any BET, SBFT, and/or SWO product identified by the HTS subheading numbers referred to previously that is unaccompanied by a completed statistical document would be considered unlawful for importation into the United States. If the AA has designated ports of entry for shipments of BET, SBFT, and/or SWO products, any shipment arriving at non-designated ports of entry would be considered unlawful and the importer would be subject to penalties under ATCA. Actions that would be considered unlawful and subject to penalties under NMFS and customs regulations include: importing, exporting, or re-exporting BFT, BET, SBFT, and/or SWO without an appropriate dealer permit, falsifying records, or failing to submit reports and other required documentation.

Dealers would also be expected to allow inspections by government officials or risk penalties. Similarly, non-government institutions given authorization to validate statistical documents accompanying BET, SBFT and SWO would also be subject to inspections by government officials or risk penalties. Scienter requirements (i.e., knowledge and intent level) and sanctions for TCA and ATCA violations are set forth in 16 U.S.C. §§ 957 and 971e.

This proposed rule also corrects an existing cross-reference in Part 300 in the prohibitions set forth at § 300.28(l).

The ICCAT and IATTC BET statistical document program recommendations state that BET destined principally for canneries are not subject to the statistical document requirement. Thus, BET caught by purse seiners and pole and line (bait) vessels and destined principally for the canneries in the United States, including Puerto Rico and the United States Pacific coast and the western and central Pacific Islands (e.g., American Samoa, Northern Marianas, and Guam), would be exempt from the statistical document and re-export certificate requirements under this proposed rule. This exemption would cover all potential U.S. ports of entry, as well as ports within commonwealths, territories, and possessions of the United States on the Pacific coast and in the western and central Pacific Islands.

This proposed rule would not change any requirements under the Marine Mammal Protection Act (MMPA), as amended by the International Dolphin Conservation Program Act (IDCPA), 16 U.S.C. 1361 et seq. , and their implementing regulations (50 CFR Part 216).

The MMPA established a moratorium with certain exceptions on the taking or importation of marine mammals. Because of dolphin interactions with purse seine vessels fishing for yellowfin tuna in the eastern tropical Pacific Ocean (ETP), imports of yellowfin tuna from the ETP are subject to various documentation and other requirements. For an overview of the requirements, see http://www.nmfs.noaa.gov/prot_res/PR2/Tuna_Dolphin/tunadolphin.html .

The following are examples of use of the BET, SBFT, or SWO statistical document programs under the proposed rule in which shipments of BET, SBFT, and SWO are imported into or exported or re-exported from the United States, which includes all U.S. commonwealths, territories, and possessions:

1. Imports of fresh or frozen SWO, regardless of ocean of origin, into the United States:

An ICCAT SWO statistical document would have to be validated by a responsible government official by the exporting country and accompany the product. The exporter would complete the export, export certification, and description of the shipment sections of the statistical document. The exporter would also complete the SWO minimum size certification of the statistical document. The original statistical document would accompany the shipment to the United States and a copy would be submitted to the domestic fisheries agency of the exporter.

If a U.S. importer plans to sell the fish for consumption in the domestic market, the import section (naming a U.S. state and city as final point of import) and the importer's certification section of the statistical document would be completed by the importer. The original statistical document with the importer's entries and certification would be submitted to NMFS within 24 hours of time of import.

If a U.S. dealer re-exports the product, the U.S. dealer would complete the importer's certification section of the statistical document (naming the United States as the intermediate country) and a re-export certificate. The dealer would also be required to obtain validation of the re-export certificate. The original statistical document, with the intermediate country importer's entries and certification, and the re-export certificate would accompany the shipment to the final destination. If the shipment was subdivided and re-exported to more than one location, the original statistical document or a copy and an original re-export certificate would be required for each sub-shipment. Completed copies would be submitted to NMFS within 24 hours of the time of re-export.

2. Exports of U.S.-caught fresh SWO, regardless of ocean of origin, from the United States:

Exports of SWO or SWO products, whether fresh or frozen, would be accompanied by an ICCAT SWO statistical document. The exporter would complete the export, exporter certification, and description of shipment sections of the statistical document and have the document validated by either a U.S. Government official or an authorized non-Government institution or association. In the case of a U.S. insular possession, validation can be made by a U.S. Government official, authorized government official from that possession, or NMFS-authorized non-government official. The original statistical document with the exporter's entries and certification would accompany the shipment to the final destination, and a completed copy would be submitted to NMFS within 24 hours of the time of export.

3. Exports of U.S.-caught fresh or frozen BET, regardless of ocean of origin, from the United States:

Exports of BET, whether fresh or frozen, would be accompanied by a species specific statistical document. When exporting Atlantic BET, the ICCAT statistical document would be used. When exporting Pacific BET, the IATTC statistical document would be used. The exporter would complete the export, exporter certification, and description of shipment sections on the appropriate statistical document and have the document validated by either a U.S. Government official or an authorized non-Government institution or association. In the case of a U.S. insular possession, validation can be made by a U.S. Government official, authorized government official from that possession, or NMFS-authorized non-government official. The original statistical document with the exporter's entries and certification would accompany the shipment to the final destination, and a completed copy of the statistical document would be submitted to NMFS by the exporter within 24 hours of the time of export.

4. Re-Exports of fresh or frozen BET or SWO, regardless of ocean of origin, through the United States:

If a U.S. dealer imports and then re-exports a product, the dealer would complete the importer's certification section of the statistical document (naming the United States as the intermediate country) and re-exporter section of the re-export certificate. The dealer would also need validation of the re-export certificate. When re-exporting Atlantic BET (e.g. an ICCAT statistical document accompanies the shipment), the ICCAT Re-export certificate would be used. When re-exporting Pacific BET (e.g. an IATTC statistical document accompanies the shipment), the IATTC re-export certificate would be used. The original statistical document, with the intermediate country importer's entries and certification, and the re-export certificate would accompany the shipment to the final destination, and a completed copy would be submitted to NMFS within 24 hours of the time of re-export. If the shipment was subdivided and re-exported to more than one location, the original statistical document or a copy of the original statistical document would accompany each sub-shipment along with an original re-export certificate.

This proposed rule is published under the authority of the ATCA, 16 U.S.C. 971 et seq. , the Magnuson-Stevens Act (16 U.S.C. 1801 et seq. ) and the TCA (16 U.S.C. 955 et seq. ). The AA has preliminarily determined that this proposed rule is necessary to implement the recommendations of ICCAT and IATTC and is necessary for the management of BFT, BET and SWO.

NMFS has prepared a Regulatory Impact Review and an Initial Regulatory Flexibility Analysis (IRFA) that examine the impacts of the alternatives for implementing the ICCAT and IATTC recommendations for international trade monitoring programs. The objectives of the proposed rule, its legal basis, and reasons for its consideration are set forth in the Summary and Supplementary Information sections of this Preamble. The proposed programs would affect approximately 1,890 seafood dealers that participate in international trade of swordfish, bluefin tuna, southern bluefin tuna and bigeye tuna, all of which are considered small entities. Impacts to dealers would occur in two areas - permitting and reporting. NMFS expects only minor negative economic impacts from the preferred alternative because the proposed measures only involve adjusting the permitting and reporting requirements. A description of the alternatives, associated requirements, and estimated costs follows.

The no action/status quo alternative (alternative 2) would make no changes to current programs. The remaining three alternatives would implement the recommended trade programs for swordfish, bigeye tuna, and bluefin tuna. The preferred alternative (alternative 1) and alternative 4 would implement the recordkeeping requirements by linking them to the proposed HMS international dealer trade permit for dealers of these species. The preferred alternative differs from alternative 4 by requiring trade monitoring for southern bluefin tuna in addition to the other species, in order to facilitate program effectiveness, whereas alternative 4 would not require the use of SBFT statistical documents or require a dealer permit for trading in SBFT. Alternative 3 would implement the trade program by building onto existing dealer permits and associated recordkeeping requirements. Overall, the immediate costs associated with the preferred alternative and alternatives 3 and 4 are expected to be greater than for alternative 2 (no action); however, access to international markets could be reduced under the status quo, which is expected to have much greater negative economic impacts in the long term.

The initial cost of obtaining the permit for each U.S. dealer under the preferred alternative and alternative 4 is expected to be $100 plus the time of filling out the form and the cost of postage, which would be approximately $2. NMFS expects this amount to be a minor negative impact for the affected dealers. The permit-associated cost for the preferred alternative and alternative 4 differs from building onto existing systems (alternative 3) in an amount between $0 to $100 per dealer, depending upon the other permits held by the dealer. Under alternative 3, if the dealer were required to have an Atlantic or Pacific tuna permit to trade in bigeye tuna or southern bluefin tuna, there would be no associated cost since these permits are issued free of charge. However, if the dealer were required to have a swordfish permit for importing or exporting swordfish, the cost could be either $25 or $100, depending upon whether the dealer has another permit issued by the Southeast Region of NMFS. NMFS estimates that approximately 960 dealers would be impacted by the preferred alternative and alternative 3. Alternative 4 would entail similar costs per dealer as alternative 1; however, slightly fewer dealers would be impacted since dealers trading in southern bluefin tuna without trade in any of the other covered species would not be required to purchase a permit.

NMFS estimates that approximately 1,890 dealers (930 foreign and 960 domestic) could be impacted by the reporting requirements under the preferred alternative and alternatives 3 and 4. Impacts for each of these alternatives is expected to be approximately the same since all dealers must submit the required reports, regardless of the type of permit. The professional skills necessary to complete the reporting requirements are equivalent to an educational level of high school completion. The annual economic impacts of the reporting requirements, in addition to the potential costs of the HMS ITP discussed in the previous paragraph, would be approximately $386 per dealer, including statistical document and re-export certificate opportunity costs ($285) and mailing ($2), biweekly opportunity cost ($90) and mailing ($9). This amount will vary depending on the volume of HMS imported or exported or the number of forms submitted. Alternative four would eliminate the need for reporting southern bluefin tuna trade, so costs would be slightly reduced. Finally, dealers could be negatively impacted if the time burden interferes with how dealers conduct their business; however, NMFS does not expect the direct or indirect costs or associated time burden of additional reporting to be more than a minor negative impact for the affected constituents.

NMFS does not believe that the proposed alternatives would conflict with any relevant regulations, federal or otherwise. To avoid duplication with the requirements of the HMS ITP, this rule would remove the international components of the existing swordfish and Atlantic tuna dealer permits.

This proposed rule has been determined to be not significant for the purposes of E.O. 12866.

This proposed rule contains new and revised collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act. These requirements have been submitted to OMB for approval. The public reporting burden for completing an application for a Federal permit for Atlantic coast dealers that import, export, or re-export BET, BFT, SBFT, or SWO is estimated at 0.08 hours (5 minutes) per response. The public reporting burden for dealers for collection-of-information on dealer reports is estimated at 0.08 hours (5 minutes) each for statistical documents and re-export certificates; 2 hours for validation; 2 hours for authorization for non-governmental validation; 0.25 hours (15 minutes) for international trade biweekly report; 0.25 hours (15 minutes) for Southeast Region HMS dealer report; 0.05 hours (3 minutes) for Southeast Region HMS dealer negative reporting; 0.25 hours (15 minutes) for Atlantic BFT biweekly dealer report; 0.02 hours (1 minute) for tagging; and 0.03 hours (2 minutes) for landing cards. The proposed rule also addresses previously approved requirements for domestic dealer permits as follows: a swordfish dealer permit and shark dealer permit have been approved under collection 0648-0205 and an Atlantic tuna dealer permit has been approved under collection 0648-0202. The response time for each of these domestic permits is 5 minutes. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS at the ADDRESSES above, and e-mail to David_Rostker@omb.eop.gov , or fax to (202) 395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR parts 300 and 635 to read as follows:

1. The authority citation for subpart C is revised to read as follows:

2. In subpart C, revise § 300.20 to read as follows:

3. In § 300.21, remove the definitions for “ Pacific bluefin tuna ” and “ Tag ,” and revise the introductory paragraph to read as follows:

4. Remove §§ 300.24 through 300.25 and redesignate §§ 300.28 and 300.29 as §§ 300.24 and 300.25, respectively, and remove and reserve §§ 300.26 through 300.27.

5. In newly redesignated § 300.24, remove (e) through (g), redesignate paragraphs (h) through (l) as paragraphs (e) through (i), respectively, and revise newly redesignated paragraphs (h) and (i) to read as follows:

6. Subpart L is added to read as follows:

1. The authority citation for 50 CFR part 635, continues to read as follows:

2. In § 635.4 revise paragraph (g) to read as follows:

3. In § 635.5, remove paragraph (b)(1)(ii) and redesignate paragraphs (b)(1)(iii) through (b)(1)(v) as (b)(1)(ii) through (b)(1)(iv), respectively, and revise paragraph (b) introductory text, (b)(1)(i) and newly redesignated paragraph (b)(1)(ii) to read as follows:

4. In subpart D, § 635.41 is removed and § 635.45 is redesignated as § 635.41 and §§ 635.42, 635.43, 635.44, 635.46, and 635.47 are removed and reserved.

5. In subpart F, § 635.71 paragraphs (b)(2), (b)(25), (e)(10) and (e)(12) are removed and reserved and paragraphs (a)(24), (b)(26) and (e)(1) are revised as follows: