Subpart A of Regulation J governs collection of checks and other items by the Reserve Banks. This subpart includes the warranties and indemnities that are given to the Reserve Banks by parties that send items to the Reserve Banks for collection and return, as well as the warranties and indemnities for which the Reserve Banks are responsible in connection with the items they handle. Subpart A of Regulation J also describes the Reserve Banks' security interest in the assets of banks for which they collect items, as well as the amounts and methods by which the Reserve Banks may recover for losses associated with their collection of items. Subpart A authorizes the Reserve Banks to issue operating circulars governing the details of the collection of checks and other items and provides that such operating circulars have binding effect on all parties interested in an item handled by a Reserve Bank. The Reserve Banks' Operating Circular No. 3, “Collection of Cash Items and Returned Checks” (OC 3), is the operating circular that is most relevant to the Reserve Banks' check collection activities.

Under existing Regulation J, the term “item” is understood to mean a paper instrument. Although Reserve Banks in some cases accept, transfer, present, or return items in electronic form, the rights and obligations associated with handling items electronically currently are specified in OC 3 and the appendices thereto, rather than in Regulation J.

Once the Check Clearing for the 21st Century Act (the Check 21 Act) takes effect on October 28, 2004, the Board expects that the Reserve Banks will offer a wider variety of services that involve handling items electronically. In addition, the Board expects that the Reserve Banks in some cases will act as “reconverting banks” that create substitute checks and provide the associated substitute check warranties and indemnity in accordance with the Check 21 Act and subpart D of the Board's Regulation CC. 1

The proposed amendments to Regulation J primarily are designed (1) to cover the Reserve Banks' handling of electronic items explicitly under Regulation J, (2) to acknowledge the substitute check warranties and indemnity that Reserve Banks and other banks will make under the Check 21 Act and subpart D when handling a substitute check or a paper or electronic representation of a substitute check, and (3) to include new warranties and indemnities that will apply when Reserve Banks and other banks send an electronic item that is not otherwise covered by the Check 21 Act and subpart D. 2

The Board proposes to amend this section to acknowledge the Check 21 Act as a source of authority.

A. Check. The Board proposes to amend the definition of check by adding a cross-reference to new subpart D of Regulation CC.

B. Item. To bring electronic items under the coverage of Regulation J, the Board proposes to amend the definition of item to include an electronic image of a paper item, together with information describing that item, that a Reserve Bank handles pursuant to an operating circular. This type of item would be defined as an electronic item.

C. Paying bank. Regulation J currently defines a bank whose routing number appears on the check “in magnetic characters or fractional form” as a paying bank. The electronic items that would be covered by the proposed expansion of the definition of item would contain MICR-line information but would not contain characters encoded in magnetic ink. The Board therefore proposes to replace the reference to “magnetic characters” with a reference to the information in the item's magnetic ink character recognition (MICR) line or in fractional form on the front of the check, or in the MICR-line information that accompanies an electronic item.

D. Sender. To further clarify the entities that are senders, the Board proposes to add Federal Reserve Banks and U.S. branches and agencies of foreign banks as entities listed in that definition. The Board also proposes technical amendments to streamline the definition.

E. Undefined terms. The Board proposes to reformat existing language explaining that terms that are not directly defined in § 210.2 of Regulation J have the meanings set forth in Regulation CC or the UCC and to add a cross-reference to new subpart D of Regulation CC. This reformatted language would be in a new paragraph (s).

The Board proposes to amend paragraph (b) of this section to state explicitly that new subpart D of Regulation CC would be binding on all parties interested in an item handled by a Reserve Bank. Although subpart D would apply even in the absence of this reference, the Board believes that an explicit statement in Regulation J promotes clarity.

Section 210.4(b) lists the parties that are deemed to have handled an item that is sent to a Reserve Bank in the order in which they are deemed to have handled it. The Board proposes to add at the end of that list the Administrative Reserve Bank of the bank to which a Reserve Bank sends or presents the item. This addition clarifies the chain of parties deemed to have handled an item.

In paragraph (a), the Board proposes adding to the list of warranties made to each Reserve Bank a new warranty that the item bears all indorsements applied by previous parties that handled the item for forward collection or return. This amendment would facilitate compliance with the requirement under the Check 21 Act that a reconverting bank preserve all previously-applied indorsements. This new warranty does not require senders to obtain missing indorsements, but rather parallels the Check 21 Act's requirement that a reconverting bank preserve the indorsements applied by all parties that previously handled a check in any form. The proposed new warranty would be of particular relevance for items that have been indorsed in electronic form, because a Reserve Bank (or other collecting bank) that handles such an item might convert it to a substitute check and thus have a duty under the Check 21 Act to preserve all previously-applied indorsements.

The Board also proposes that paragraph (a) explicitly acknowledge the warranties and indemnities that a sending bank makes under Regulation CC subject to the terms of that regulation. Proposed paragraph (a)(3)(i) would list the settlement, encoding, and offset warranties in § 229.34(c)(2)-(4) of Regulation CC. Proposed paragraph (a)(3)(ii) would acknowledge explicitly that a sender makes the warranties and indemnity specified in subpart D of Regulation CC (which implements the Check 21 Act) when sending an item in the form of a substitute check or a paper or electronic representation of a substitute check. Although senders would make each of these warranties as provided in Regulation CC even if the warranties were not listed in paragraph (a), the Board believes that the meaning of the rule is clearer if paragraph (a) specifically acknowledges these warranties. These changes also conform the list of senders' warranties in § 210.5(a) of Regulation J to the list of the Reserve Banks' warranties in § 210.6(b) of the regulation.

Proposed paragraph (a) would supplement the warranties that are given under other law by including new warranties that a sender would give only under Regulation J to each Reserve Bank that handles an electronic item that is not a representation of a substitute check and thus is not subject to the Check 21 Act warranties. The Reserve Banks anticipate that most electronic items they will receive will fall into this category and that the Reserve Banks or subsequent parties might later use such electronic items to create substitute checks. A recipient of an electronic item that is not subject to the Check 21 Act ( i.e. , an electronic item created directly from an original check) would not receive the Check 21 Act warranties from the sending bank. However, that recipient would itself make the Check 21 Act warranties if it subsequently used the electronic item to create a substitute check that it transferred for value. The proposed new warranties in Regulation J thus are designed to allow the recipient of an electronic item to pass back liabilities incurred under the Check 21 Act but for which the recipient did not receive corresponding Check 21 Act protections. The proposed new electronic item warranties therefore closely track the substitute check warranties contained in the Check 21 Act.

The amendments described in the analysis of § 210.6(b) would explicitly acknowledge the Reserve Banks' responsibility for the new Check 21 Act indemnity to be implemented in § 229.53 of Regulation CC and would add a new indemnity that Reserve Banks would give for electronic items that are not subject § 229.53. The Board therefore proposes to add two new paragraphs to newly-redesignated § 210.5(a)(5) that would allow the Reserve Bank in certain circumstances to pass back to the sender losses the Reserve Bank incurs in connection with these indemnities. Specifically, new § 210.5(a)(5)(iv) would require a sender who sent a substitute check (or a paper or electronic representation of a substitute check) to indemnify the Reserve Bank for losses that the Reserve Bank incurred as a result of an indemnity that it made under §§ 210.6(b)(2) and 229.53. Similarly, new § 210.5(a)(5)(v) would require a sender who sent an electronic item to indemnify the Reserve Bank for losses that the Reserve Bank incurred because it made an indemnity for that electronic item under § 210.6(b)(3). The Board also proposes that newly-redesignated § 210.5(c)(3) (currently § 210.5(b)(3)) specify that the Reserve Banks' recovery rights under newly-redesignated § 210.5(c) extend to any indemnity that the Reserve Banks provide under § 210.6(b).

An undesignated phrase after existing paragraph (a)(2) currently specifies that the warranties listed in paragraph (a) do not limit warranties that a sender gives under other law. The Board proposes to move this text to a new paragraph (b) and to amend the text to cover both warranties and indemnities provided under other law. The remaining paragraphs of § 210.5 would be redesignated, and where necessary cross-references would be amended, to reflect the inclusion of new paragraph (b).

The Board proposes to amend § 210.6 regarding the warranty and other liabilities of Reserve Banks for items that they handle.

The Board proposes to amend paragraph (a) to acknowledge explicitly the Reserve Banks' status and liability when handling substitute checks under the Check 21 Act and subpart D of Regulation CC. The Board also proposes to redesignate existing text from paragraph (b)(2) regarding the limitations on a Reserve Bank's liability as a new paragraph (c) and to redesignate existing paragraph (c) as paragraph (d). Redesignated paragraph (d) would be amended to include a one-year statute of limitations for claims relating to the new supplemental warranty in paragraph (b)(4) (which specifies warranties made when handling electronic items that are not subject to the Check 21 Act or Regulation CC) and to specify that paragraph (d) does not extend the time for bringing claims under subpart D of Regulation CC.

The Board proposes to amend paragraph (b) along the same lines as § 210.5(a) so that the protections that the Reserve Banks give when they handle an item for forward collection parallel the protections that the Reserve Banks receive from senders. Specifically, the Board proposes to add a new paragraph (b)(1)(iii), to provide that Reserve Banks handling an item for forward collection would make the same warranty regarding preservation of previously-applied endorsements that a sender would give under proposed § 210.5(a)(2)(iii). Similarly, paragraph (b)(2) would parallel § 210.5(a)(3) by explicitly acknowledging the Reserve Banks' responsibilities under subparts C and D of Regulation CC, including the warranties and indemnity that Reserve Banks would give when handling a substitute check or a paper or electronic representation of a substitute check. Paragraph (b)(3) would parallel the new warranties in § 210.5(a)(4) that flow with the transfer of an electronic item that is not subject to the Regulation CC warranties. Paragraph (b)(3) also would add a new indemnity that Reserve Banks would make if an electronic item they sent later were converted to a substitute check that was subject to an indemnity claim under § 229.53 of Regulation CC.

The Board proposes to amend paragraph (b) to parallel the proposed amendments to § 210.4 by including the Administrative Reserve Bank of the bank to which a Reserve Bank returns a check in the chain of parties deemed to have handled a check. Proposed amendments to paragraphs (c) and (d) parallel the proposed amendments to §§ 210.5 and 210.6 by making the return warranties and indemnities given by paying and returning banks and Reserve Banks correspond to the forward-side warranties given by senders and Reserve Banks, respectively, and by including a returning or paying bank's responsibility for indemnifying a Reserve Bank for indemnities it pays for returned checks. The proposed amendments also would move existing language from § 210.12(c)(2) about preservation of other warranties and liabilities to a separate paragraph (d), paralleling the creation of new § 210.5(b) with respect to preservation of forward warranties and indemnities.

In accordance with section 3 of the Regulatory Flexibility Act (12 U.S.C. 605) and for the reasons stated below, the Board certifies that the proposed amendments to Regulation J if promulgated would not have a significant economic impact on a substantial number of small entities.

Under section 3 of the Small Business Act, as implemented at 13 CFR part 121, subpart A, a bank is considered a “small entity” or “small bank” if it has $150 million or less in assets. Based on December 2003 call report data, the Board estimates that there are approximately 14,335 depository institutions with assets of $150 million or less. The proposed amendments simply would provide that each bank that sends an electronic item to a Reserve Bank for forward collection or return would make warranties and an indemnity for that item. The proposed new warranties and indemnity in Regulation J are similar to the warranties and indemnity that apply to substitute checks under the Check 21 Act. The proposed amendments would apply to all banks, regardless of size, that collect checks through a Federal Reserve Bank but the Board does not expect these amendments to impose economic costs on any such bank.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR 1320 Appendix A.1), the Board has reviewed the final rule under the authority delegated to the Board by the Office of Management and Budget. The final rule contains no new collections of information and proposes no substantive changes to existing collections of information pursuant to the Paperwork Reduction Act.

For the reasons set forth in the preamble, the Board proposes to amend 12 CFR part 210 to read as follows:

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-271-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2003-NM-271-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Departamento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil, notified the FAA that an unsafe condition may exist on certain Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-135 and -145 series airplanes. The DAC advises that there have been a number of cases reported where flight crews had difficulty fitting the lock pin into the track of their seats during seat adjustments due to damage in the seat track locking holes. This condition, if not corrected, could result in uncommanded movement of the pilot's or co-pilot's seat, which could result in interference with the operation of the airplane and consequent temporary loss of airplane control.

EMBRAER has issued Service Bulletin (SB) 145-53-0027, Revision 03, dated February 5, 2004, which describes procedures for inspecting for proper locking of the seats to the pilot's and co-pilot's seat tracks; related investigative actions, if necessary; and corrective actions, if necessary. The related investigative actions include checking for proper fitting of the locking pins, performing a detailed inspection of the seat track alignment, and measuring the seat track holes for excessive wear. The corrective actions include the following: Adjusting the seat track alignment; reworking seat track holes; and replacing the seat track with a new, improved seat track, if necessary.

Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition. The DAC recommended this service bulletin as mandatory and issued Brazilian airworthiness directive 2002-09-01, dated September 23, 2002, in order to assure the continued airworthiness of these airplanes in Brazil.

For certain airplanes, EMBRAER SB 145-53-0027 recommends prior or concurrent accomplishment of the Accomplishment Instructions of SICMA Aero Seat SB 147-25-020, Issue 2, dated December 22, 2003. The service bulletin describes procedures for replacing the locking pin and the locking spring with new parts, and adding a modification placard.

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

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

We have determined that the requirements of Part I of the Brazilian airworthiness directive include repetitive inspections or inspections that conflict with Parts II and III of the Brazilian airworthiness directive. Therefore, this proposed AD would not require the actions of Part I of the Brazilian airworthiness directive.

The manufacturer has revised EMBRAER SB 145-53-0027 to recommend a new service bulletin by SICMA Aero Seat (147-25-020) for concurrent accomplishment, and to update the Effectivity section of the EMBRAER service bulletin. The DAC has not issued a revised, or corresponding, airworthiness directive, although accomplishment of the SICMA service bulletin may be considered mandatory for operators of these aircraft in Brazil. This proposed AD would require accomplishment of the SICMA Aero Seat service bulletin, and would specify the updated effectivity of the EMBRAER service bulletin. These issues have been coordinated with the Brazilian authority.

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

The FAA estimates that 459 airplanes of U.S. registry would be affected by this proposed AD. The following table shows the estimated cost impact for airplanes affected by this AD. The average labor rate is $65 per work hour.

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

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

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

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

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-298-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-298-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on certain Airbus Model A320 series airplanes. The DGAC advises that the tail cone triangles were not installed properly on certain airplanes during production, resulting in possible mis-rigged elevator servo-controls. Mis-rigged elevator servo controls may result in low hinge moments and possible vibrations, if combined with elevator freeplay. This condition, if not corrected, could result in excessive vibrations of the elevator, which could result in reduced structural integrity and reduced controllability of the airplane.

On August 10, 2001, the FAA issued AD 2001-16-09, amendment 39-12377 (66 FR 43471, August 20, 2001), applicable to all Airbus Model A319, A320, and A321 series airplanes. That AD currently requires periodic inspection of the elevators for excessive freeplay, repair of worn parts if excessive freeplay is detected, and modification of the elevator neutral setting. That action was prompted by reports of severe vibration in the aft cabin of Model A320 series airplanes, and studies that indicate that the primary cause is excessive freeplay in the elevator attachments. The requirements of that AD are intended to prevent excessive vibration of the elevators, which could result in reduced structural integrity and reduced controllability of the airplane.

Since issuance of AD 2001-16-09, several operators of Airbus Model A320 series airplanes have reported airframe vibrations originating from the elevator surfaces due to mis-rigged elevator servo controls.

Airbus has issued Service Bulletin A320-27-1132, Revision 01, dated June 19, 2002, which describes procedures for performing a detailed visual inspection of the position of each tail cone triangle based on certain measurements; and corrective actions if necessary. The corrective actions include re-rigging the elevator servo controls to adjust the elevator neutral setting, and changing the position of the tail cone triangle. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition. The DGAC classified this service bulletin as mandatory and issued French airworthiness directive 2002-514(B) R1, dated November 13, 2002, to ensure the continued airworthiness of these airplanes in France.

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

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

Operators should note that, although the service bulletin describes procedures for submitting certain information to the manufacturer, this proposed AD would not require those actions. The FAA does not require this information.

Although paragraphs 3.1 and 3.2 of the French airworthiness directive state that operators must perform periodic inspection of the elevators for excessive freeplay; repair worn parts if excessive freeplay is detected; and modify the elevator neutral setting; this proposed AD does not include those actions. Those actions are already included in AD 2001-16-09, amendment 39-12377 (66 FR 43471, August 20, 2001). This proposed AD includes only the actions described in paragraph 3.3 of the French airworthiness directive.

Although the French airworthiness directive is applicable to all Airbus Model A319, A320, and A321 series airplanes, this proposed AD applies only to certain Airbus Model A320 series airplanes. The action in paragraph 3.3 of the French airworthiness directive applies only to that model.

The FAA estimates that 64 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 1 work hour per airplane to accomplish the proposed inspection, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $4,160, or $65 per airplane.

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

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

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

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

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-257-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-257-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on certain Airbus Model A319, A320, and A321 series airplanes. The DGAC advises that stress cracking stemming from design issues has been discovered in the inner liners of the lightweight tailpipes of certain auxiliary power units (APU). This condition, if not corrected, could result in the tailpipe becoming separated from the APU during operation, which could pose a hazard to persons on the ground.

Airbus has issued Service Bulletin A320-49-1057, dated June 2, 1999, which describes procedures for replacing the lightweight tailpipe of the APU with a new or modified tailpipe. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition. The DGAC classified this service bulletin as mandatory and issued French airworthiness directive 2002-456(B), dated September 4, 2002, to ensure the continued airworthiness of these airplanes in France.

Operators should note that Service Bulletin A320-49-1057 refers to APIC Service Bulletin 4500002-49-72, Revision 1, dated November 20, 1998, as an additional source of service information for replacing the tailpipe.

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

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

The applicability of French airworthiness directive 2002-456(B), dated September 4, 2002, excludes airplanes on which Airbus Service Bulletin A320-49-1057, dated June 02, 1999, was done in service. However, we have not excluded those airplanes in the applicability of this proposed AD; rather, this proposed AD includes a requirement to accomplish the actions specified in that service bulletin. Such a requirement would ensure that the actions specified in the service bulletin and required by this proposed AD are accomplished on all affected airplanes. Operators must continue to operate the airplane in the configuration required by this proposed AD unless an alternative method of compliance is approved.

The FAA estimates that 576 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 2 work hours per airplane to accomplish the proposed actions, and that the average labor rate is $65 per work hour. Required parts would cost approximately $11,300 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $6,583,680, or $11,430 per airplane.

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

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

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

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

On July 16, 2002, OSHA published a notice of intent to establish a negotiated rulemaking committee to improve crane and derrick safety in construction, requesting comments and nominations for membership (Volume 67 of the Federal Register , page 46612). In subsequent notices the Department of Labor announced the establishment of the Committee (Volume 68 of the Federal Register , page 35172, June 12, 2003), requested comments on a list of proposed members (68 FR 9036, February 27, 2003), published a final membership list (68 FR 39877, July 3, 2003), and announced the first meeting, (68 FR 39880, July 3, 2003), which was held July 30-August 1, 2003. The Agency published notices announcing the subsequent meetings.

At the July meeting, the Committee will primarily review draft materials based on CDAC discussions at prior meetings. OSHA anticipates that CDAC will be reviewing draft regulatory text of items mentioned below on the “Anticipated Key Issues for Negotiation” list.

OSHA anticipates that CDAC will continue discussing key issues from the following list in upcoming meetings:

All interested parties are invited to attend the July public meeting at the time and place indicated above. Seating will be available to the public on a first-come, first-served basis. Individuals with disabilities wishing to attend should contact Luz Dela Cruz by telephone at 202-693-2020 or by fax at 202-693-1689 to obtain appropriate accommodations no later than Friday, June 25, 2004. The meeting is expected to last three and a half days.

In addition, members of the general public may request an opportunity to make oral presentations to the Committee. The Facilitator has the authority to decide to what extent oral presentations by members of the public may be permitted at the meeting. Oral presentations will be limited to statements of fact and views, and shall not include any questioning of the committee members or other participants.

Minutes of the meetings and materials prepared for the Committee will be available for public inspection at the OSHA Docket Office, Room N-2625, 200 Constitution Ave., NW., Washington, DC 20210; Telephone (202) 693-2350. Minutes will also be available on the OSHA Docket webpage: http://dockets.osha.gov/.

The Facilitator, Susan Podziba, can be reached at Susan Podziba and Associates, 21 Orchard Road, Brookline, MA 02445; telephone (617) 738 5320, fax (617) 738-6911.

We encourage you to participate in this rulemaking by submitting comments or related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-04-030), 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 if they 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 the First Coast Guard District, Bridge Branch, 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 .

The S99 (Alford Street) Bridge, mile 1.4, across the Mystic River has a vertical clearance in the closed position of 7 feet at mean high water and 16 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR § 117.609.

The bridge owner, the City of Boston, requested that the S99 (Alford Street) Bridge remain closed to vessel traffic during the Democratic National Convention (DNC) from 7 a.m. on July 26, 2004 through 7 a.m. on July 30, 2004. Vessels that can pass under the draw without a bridge opening may do so at all times.

During the DNC several primary vehicular traffic routes, including I-93 to Boston, and the North Station commuter rail station will be closed.

It is anticipated that much of the detoured vehicular traffic will be using Route 99 to drive into and through Boston during the week the DNC is underway. Rail commuters that normally transit to North Station will be bussed into Boston utilizing Route 99 as a detour route as a result of the North Station commuter rail station closure.

The bridge owner; therefore, has requested that the S99 (Alford Street) Bridge remain closed to facilitate the expected heavy vehicular traffic in the interest of public safety.

A shortened comment period of 20 days is necessary to allow this rule to become effective in time for the start of the DNC on July 26, 2004.

This proposed change would amend 33 CFR § 117.609 by suspending paragraph (a) and adding a new temporary paragraph (c) from July 26, 2004 through July 30, 2004.

Under this proposed rule the S99 (Alford Street) Bridge may remain closed to vessel traffic from 7 a.m. on July 26, 2004 through 7 a.m. on July 30, 2004.

This action is necessary to facilitate anticipated heavy vehicular traffic during the Democratic National Convention in the interest of public safety.

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 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.

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 conclusion is based on the fact that most vessel traffic on the Mystic River can pass under the bridge without a bridge opening at various stages of the tide.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 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 section 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 conclusion is based on the fact that most vessel traffic on the Mystic River can pass under the bridge without a bridge opening at various stages of the tide.

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

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 it 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 effect a taking of private property or otherwise have taking implications under E.O. 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 may disproportionately affect children.

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

We have analyzed this 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 declared it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

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 (32)(e), of the Instruction, from further environment documentation because it has been determined that the promulgation of operating regulations or procedures for drawbridges are categorically excluded.

For the reasons set out in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:

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 [CGD11-03-005], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please 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 the Coast Guard Bridge Section 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 .

The drawbridge owner, Central California Redevelopment Company (CCRC Farms), requested changing the dates and times for advance notice for drawspan operation at their Reclamation District drawbridge, crossing Connection Slough between Mandeville and Bacon Islands, near Stockton, CA. The reason for the proposal is to reduce operating costs of the drawbridge while continuing to meet the reasonable needs of vessel traffic.

CCRC Farms provided drawbridge operating logs for a two-year period that documented a significant decrease in calls for operation of the drawspan between September 15 and May 15, annually, or between the hours of 5 p.m. and 9 a.m. This supports their request to adjust the existing advance notice period to more closely match the reduced navigational activity.

On September 22, 2003, we published a Notice of Proposed Rule Making (NPRM), entitled “Drawbridge Operation Regulations; Connection Slough, Stockton, CA” in the Federal Register (Volume 68, Number 183). The information was also published in the Coast Guard Local Notice to Mariners (LNM), 40/3, dated October 7, 2003.

The wording in the NPRM and LNM did not clearly emphasize that the drawspan will continue to be available for passage of vessels on a 24 hour, 7 day per week basis. It became apparent by the comments received that many waterway users are unfamiliar with the existing regulation, and unaware of their ability to have the drawspan open at any time by providing advance notice.

The NPRM requested comments no later than October 22, 2003, and did not provide sufficient comment period for the proposed rule. We continued to accept comments on the NPRM through February 2004.

Between September 22, 2003 and February 2004, we received approximately 220 letters and observed at least 2 articles in a local publication that objected to a reduced availability of the drawbridge to open for vessels. Apparently, the waterway users had not read or not understood the intent of the information contained in the Federal Register NPRM or the Coast Guard LNM prior to commenting, but reacted to comments promulgated locally by unofficial sources. For this reason, we will provide copies of this SNPRM, in writing, to the local media and to those who commented previously, to ensure any replies to our office are based upon the official proposal.

The existing regulation, 33 CFR 117.150, requires the drawbridge, from May 1 through October 31, to open on signal between the hours of 6 a.m. and 10 p.m., and from November 1 through April 30, to open on signal between the hours of 9 a.m. and 5 p.m. All other times the drawbridge must open on signal if notice is given at least 4 hours in advance. The drawbridge must open upon 1-hour notice for emergency vessel operation.

It is important to note that the existing regulation presently allows the drawbridge owner to operate the drawbridge with advance notice, during certain dates and times. It does not allow the drawbridge to remain closed or to obstruct navigation, when the proper signals to open have been given. Many comments, received in response to the NPRM, indicated a lack of understanding of the existing advance notice operation. The Coast Guard will ensure signs are installed on the upstream and downstream sides of the drawbridge, in compliance with 33 CFR 117.55, to post the advance notice schedules, with telephone numbers and point of contact to be notified for drawbridge operation.

The proposed changes are as follows: From May 15 through September 15 the drawbridge would open on signal between the hours of 9 a.m. and 5 p.m., and it would open upon 12 hours notice between the hours of 5 p.m. and 9 a.m. From September 16 through May 14 the bridge would open upon 12 hours notice between the hours of 9 a.m. and 5 p.m., and it would open upon 24 hours notice between the hours of 5 p.m. and 9 a.m. The proposed changes would lower the costs of operating the bridge for the bridge owner without significantly impacting navigation.

As proposed, this change would not reduce the availability of the drawspan to open for vessels. It would require mariners to contact the drawbridge earlier, when planning a transit through the drawbridge during the advance notice periods.

The proposed change would allow the drawbridge to be operated on an advance notice schedule, similar to other nearby drawbridges on adjacent channels in the Delta. It would allow CCRC Farms to utilize the drawbridge operator more effectively during documented navigational inactivity at the drawbridge, and still have the operator available at the drawbridge to provide an opening when a vessel arrives.

Should the proposed change be implemented and fail to meet the reasonable needs of vessel traffic, nothing in this proposal or the Final Rule would preclude review and adjustment of the regulation to ensure navigational needs are satisfied. In support of documenting the effectiveness of the proposed change, and potential future changes, the Coast Guard will require CCRC Farms continued submission of drawbridge operating logs and land traffic counts at this drawbridge.

Mariners are encouraged to notify the Coast Guard Bridge Office promptly of any alleged violation of drawbridge operating regulations, to allow effective investigation and correction of bridge-related discrepancies.

Since all drawbridges are subject to emergency operation in compliance with 33 CFR 117.31, the individual emergency operation text would be removed from the regulation.

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. Vessel counts derived from drawbridge operating logs and land traffic counts across the drawbridge were submitted by CCRC Farms in support of their request, showing little demand for bridge openings during the proposed periods of advance notice. Nothing in the proposed regulation change would relieve the bridge owner from the requirement to open the drawbridge for vessels, at any time, when the proper signals have been given. Therefore, the impact of the proposed regulation change is expected to be minimal.

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. No small entities were identified that would be affected by the proposed rule. Vessel traffic counts indicate the waterway users, presently requiring operation of the drawspan, would continue to receive the same level of service at the bridge. The proposal is to expand the existing advance notice periods for opening the drawbridge. The drawbridge will continue to be required to open for vessels at any time, when the proper signals have been given. Therefore, the impact of the proposed regulation change is expected to be minimal.

If you think your business, organization, or governmental jurisdiction qualifies as a small entity and 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.

This proposed rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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 it 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 would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Commandant Instruction M16475.lD, 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 proposed rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation, since promulgation of drawbridge regulations has been determined not to have any effect on the environment.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:

This is a summary of the Commission's Notice of Proposed Rule Making, ET Docket No. 04-186 and ET Docket No. 02-380, FCC 04-113, adopted May 13, 2004, and released May 25, 2004. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room, CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov. Alternate formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365.

Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before September 1, 2004, and reply comments on or before October 1, 2004. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings , 63 FR 24121, May 1, 1998. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html. Although this proceeding is captioned under multiple dockets, only one copy of an electronic submission, captioned to ET Docket No. 04-186, should be filed. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov , and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply. Parties who choose to file by paper must file an original and four copies of each filing. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Natek, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554.

1. The Notice of Proposed Rule Making proposes to allow unlicensed radio transmitters to operate in the broadcast television spectrum at locations where that spectrum is not being used. We believe that the proposals set forth herein would provide for more efficient and effective use of the TV spectrum and would have significant benefits for the public by allowing the development of new and innovative types of unlicensed broadband devices and services for businesses and consumers.

2. We recognize that broadcasters are currently undergoing a transition to digital operation, during which channel availability is likely to change more frequently. Our approach will appropriately account for these changes. To ensure that no harmful interference to authorized users of the spectrum will occur, we propose to define when a TV channel is “unused” and to require these unlicensed devices comply with significant restrictions and technical protections. Unlicensed devices would be required to incorporate “smart radio” features to identify the unused TV channels in the area where they are located. We intend to consider several alternative methods for identifying the unused TV channels, including approaches that would; allow existing television and/or radio stations to transmit information on TV channel availability directly to an unlicensed device; employ geo-location technologies such as the Global Positioning Satellite (GPS) system; or employ spectrum sensing techniques that would determine if the signals of authorized TV stations are present in an area.

3. On December 11, 2002, the Commission adopted a Notice of Inquiry (NOI), 68 FR 2730, January 21, 2003, in this proceeding seeking comment on the possibility of allowing unlicensed devices to operate in the TV broadcast bands at locations and times when the spectrum is not being used by authorized services. The Commission noted that unused portions of the TV spectrum appear to be a suitable choice for expanded unlicensed operations. In this regard, the Commission observed that there is significant bandwidth available because each TV channel occupies six megahertz and multiple channels are generally vacant or unused in a particular area. The Commission stated that allowing unlicensed devices to operate on unused TV channels would lead to more efficient use of the spectrum. Commenting parties representing the interests of manufacturers and users of unlicensed devices generally support this approach, while those representing the interests of the current users of the TV broadcast spectrum, both primary and secondary, express concern about potential interference from such new unlicensed operations.

4. Part 15 unlicensed devices and wireless broadband services using such devices have been extremely successful. The past few years have witnessed the development of broadband unlicensed industry standards such as IEEE 802.11b (Wi-Fi), Bluetooth, and Home RF that have greatly expanded the number and variety of devices that operate in the 2.4 GHz and 5 GHz industrial, scientific and medical equipment (ISM) bands. These standards have enabled the introduction of a host of new wireless Internet products as well as wireless computer peripherals such as printers and keyboards, and wireless headsets and computer connections for cellular and PCS phones.

5. The record developed in response to the NOI indicates that there is need for additional spectrum for unlicensed broadband devices. A number of commenting parties in particular state that unlicensed devices should be allowed to operate in the TV broadcast bands. Broadcasters, however, express concern that allowing unlicensed operation in the TV bands would pose a risk of interference to over-the-air television service and could adversely affect the DTV transition. They state that unlicensed operation in the TV bands would be problematic during the DTV transition because the television bands will be in a crowded, fluid and fragile state during that period, and unlicensed devices could cause significant disruption to DTV service. Other parties express concern about possible interference from unlicensed devices to licensed non-broadcast services that operate on TV channels. Parties representing Private Land Mobile Radio Service (PLMRS) and Commercial Mobile Radio Service (CMRS) interests do not believe that unlicensed devices should be permitted to operate on TV channels 14-20, which are used by the PLMRS/CMRS in certain parts of the country, or on TV channels above 51, which have been reallocated for other services. In addition, manufacturers of wireless microphones that operate on VHF and UHF TV channels are concerned about possible interference from unlicensed devices.

6. We request comment on our tentative conclusions regarding the interest in operation of unlicensed devices in the broadcast TV bands and the suitability of those bands for such operations. We request comment on proposals for requirements to ensure that unlicensed broadband devices operating in the TV bands would transmit on vacant spectrum and not interfere with authorized incumbent operations, including: analog and digital television, low power television, television translator, television booster, and Class A television stations (as well as future authorization of digital low power television, television translator and television booster stations being considered in MB Docket No. 03-185), 68 FR 55566, September 26, 2003, broadcast auxiliary services such as wireless microphones; and PLMRS and CMRS backhaul operations.

7. Because unlicensed broadband devices would share spectrum with broadcast TV and other licensed services, they would need to have capabilities to avoid causing harmful interference to licensed services in the TV band. Specifically, an unlicensed device would need the ability to determine whether a TV channel or frequency band is unused before it could transmit. Additionally, an unlicensed device may need capabilities to avoid occupying a frequency band in the event a licensed user wishes to commence transmissions on a channel that was previously vacant. As pointed out by a number of parties with interest in TV broadcasting, this capability is especially important in light of the transition to DTV and the facts that many broadcasters may be required to change their current DTV channel and that new DTV stations may begin operation.

8. For the purpose of developing interference protection criteria, we propose to classify the unlicensed broadband devices to be used in the TV bands into these two general functional categories. The first category will consist of lower power “personal/portable” unlicensed devices, such as Wi-Fi like cards in laptop computers or wireless in-home LANs. The second category will consist of higher power “fixed/access” unlicensed devices that are generally operated from a fixed location and may be used to provide a commercial service such as wireless broadband internet access. We believe that both of these types of operations can be accommodated in the TV spectrum, provided appropriate measures are taken to ensure that operations are limited to unused TV channels. At the same time, we recognize that different requirements may be appropriate for ensuring interference protection to licensed operations from the two different types of devices, given the differences in the uses and the interference potential of these types of unlicensed broadband applications. That is, certain methods that are appropriate for limiting the interference potential of personal/portable devices would be less appropriate for fixed/access devices and vice versa. Therefore, we propose different interference avoidance requirements for these two different types of unlicensed broadband applications. In both cases, however, our goal is to make the technical requirements as simple and as reliable as possible. We believe that this approach will provide flexibility to permit a wide range of unlicensed broadband uses and applications and ensure that the most appropriate and effective mechanisms are in place to limit such unlicensed use to only unused TV channels.

9. There are at least three methods that could be used to determine whether a portion of the TV band is unused at a specific time and/or location. First, the location of an unlicensed device could be determined by a professional installer or by using geo-location technology such as GPS incorporated within the device. Using either of these methods, it could then be determined from either an internal or external database whether the unlicensed device is located far enough outside the protected service contours of licensed stations to avoid causing harmful interference. A second method would be for an unlicensed device to receive information transmitted by an external source such as a broadcast station or another unlicensed transmitter indicating which channels are available at its geographic location. A third method would be to incorporate sensing capabilities in the unlicensed device to detect whether other transmitters are operating in an area. For example, a fixed unlicensed transmitter could be required to incorporate an antenna and a receiver capable of detecting signals down to a certain threshold level that would be used to determine if a particular TV channel is actually in use. Generally, such sensing would have to be much more sensitive than the receivers used in the licensed service. If no signals were detected above the threshold, the device would be allowed to transmit. If signals are detected above the threshold on a particular channel, the unlicensed device would have to search for another channel. As the Commission has previously noted, there are techniques that can be used to increase the ability of a sensing receiver to reliably detect other signals in a band which rely on the fact that it is not necessary to decode the information in a signal to determine whether a signal is present.

10. Unlicensed Personal/Portable Operations. Interference was the primary concern raised by parties opposed to unlicensed operations in the TV bands. These parties raise valid concerns that given the potential ubiquitous and uncontrolled deployment of unlicensed devices, any requirements on these devices must ensure that the devices only transmit on unused TV channels. To ensure that this is the case, we are proposing to allow personal/portable unlicensed broadband devices to transmit only after they receive a “control” signal that positively identifies which TV channels are vacant and therefore available for use. Without reception of this “control” signal, no transmissions would be permitted. This would provide positive assurance that these devices would operate only on unused TV channels. We propose to permit the transmission of control signal data by a number of sources. In particular, we propose that the control signal could be a data stream from a digital TV station, information transmitted in the vertical blanking interval (VBI) of an analog TV station, subcarrier data from an FM radio station, data transmitted by a licensed wireless provider, or channel availability data from a fixed/access unlicensed device. We propose that the transmission of this information would be on a voluntary basis and that parties could receive compensation for transmitting this information. Under the approach we are proposing, a TV channel would be considered vacant only if no portion of the service area of an authorized station assigned to use that channel was within the service area of the station transmitting the control signal. For example, if the information is transmitted by a DTV station, the identified vacant channels must not be used for the provision of television or other licensed services anywhere within the noise-limited service contour of that DTV station. We also seek comment on how often the control signal information should be transmitted and updated to take into account changes in TV station operations that arise due to the transition to DTV and the commencement of new stations. We tentatively believe that control signal information should be at a minimum current on a daily basis.

11. Given the portable and potentially ubiquitous nature of these devices and the importance of protecting television service, we believe that, at least initially, unlicensed personal/portable broadband devices that operate in the TV bands should be subject to certain additional requirements. In particular, we propose to limit the maximum power output of these devices to 100 milliwatts (mW) and to require that such devices have a permanently attached integral antenna with a maximum permissible gain of 6 dBi. We believe that these power and antenna provisions will provide sufficient communications capabilities to allow personal/portable broadband devices to serve a wide range of broadband applications, such as home networks, LANs and broadband connectivity, while at the same time limiting the potential for interference and RF safety concerns. We seek comment on whether these devices should be subject to routine evaluation for RF exposure. We also seek comment on whether we should allow higher power operation and what safeguards would be needed to protect current and future licensees in the TV bands. We further propose to require that such devices automatically and periodically transmit a unique identification signal. We seek comment on what information should be required to be transmitted and how often it should be repeated for easy identification of the unlicensed device. For example, should we require the device to transmit the name of its manufacturer, its FCC identifier, and its serial number? What time interval would be appropriate for periodic transmission of the identifying information? We believe that taken together these proposed requirements address the interference concerns raised by commenting parties. In particular, we believe that this plan will appropriately manage the potential for harmful interference to television and other licensed services from unlicensed personal/portable devices and, in the unlikely event that such interference were to occur, provide a positive means to identify its source so that it can be eliminated.

12. We seek comment on these proposals. In particular, we seek specific comment on what is the most efficient and effective method for providing control signals to unlicensed devices. In this regard, we ask whether broadcasters would voluntarily engage in agreements with unlicensed device manufacturers or service providers to transmit this information. We note agreements with unlicensed device manufacturers to carry channel availability data could provide broadcasters a new source of revenue. For example, we understand that many FM radio broadcasters have agreed to transmit information to support devices using Microsoft's Smart Personal Object Technology (“SPOT”). While we believe that voluntary approaches are the most desirable means for providing control channel information, we also request comment on whether we should require TV stations to transmit this information and how frequently such information should be transmitted. We further request comment on whether we should designate specific entities that would be responsible for determining the unused channels in a station's service area. For example, this function could be performed by frequency coordinators, engineering consulting firms, or broadcast trade associations. We also seek comment on the frequency with which these entities update their information on allotments and vacancies and whether we should provide guidelines in that regard. Additionally, we seek comment on whether constraints are needed on stations retransmitting control signals to ensure that the control signals are not transmitted or received beyond the originating station's service area. For example, translator stations generally retransmit the entire signal of a primary TV station. How should we ensure that translators do not inappropriately retransmit the control signals of their primary TV stations beyond the coverage area of those stations? We also request comment on the desirability and practicality of using other approaches for preventing harmful interference to TV services from personal/portable unlicensed devices in the TV bands. In particular, parties favoring such approaches should describe how such techniques would ensure that unlicensed devices only operate on vacant spectrum and not cause harmful interference to licensed services. We also request comment on whether additional requirements would be appropriate for personal/portable operations. For example, should we require that all personal/portable devices be registered with an industry-accepted entity, such as a frequency coordinator, that maintains a registration database of all models of personal/portable transmitters along with their operating frequencies? This registration data base could include the unique identification of the personal/portable device. We also request comment and suggestions on the appropriate entity that we should select to maintain such a registration database.

13. Fixed/Access Unlicensed Devices. Fixed/access types of devices present different operational and interference considerations. In general, we anticipate that these devices would be used by WISPs and others as base stations to provide internet access and other broadband data services to homes and businesses, including to personal/portable services. We propose to allow fixed/access devices to operate under the same technical provisions as digital transmission systems that operate under § 15.247 of the rules. This would permit fixed/access devices to operate with a transmitter output power of up to one watt and to employ higher gain directional antennas, with requirements for transmitter output reductions for antennas with gains above 6 dBi. We believe that these power levels are sufficient to be useful for WISPs and other wireless networking applications and will ensure that these devices can successfully share the TV spectrum. We also believe that these power and antenna provisions will limit the potential for interference and RF safety concerns. We seek comment on whether these devices should be subject to routine evaluation for RF exposure. We further propose to require that such devices automatically and periodically transmit a unique identification so that any harmful interference situation, should it occur, can be quickly identified and remedied. We request comment on what information should be required to be transmitted, in what format, and how often it should be repeated for easy identification of the unlicensed device. For example, should we require unlicensed fixed/access devices to transmit location information, name of manufacturer, FCC identifier, and serial number? What time interval would be appropriate for periodic transmission of the identification information?

14. To ensure that fixed/access devices operate only on unused TV channels, we propose to require that such devices incorporate a method for determining geographic location with a minimum accuracy of 10 meters. To meet this requirement, for example, the device could incorporate a GPS receiver to determine its geographic coordinates. Using this location information, local broadcast station data and the protection requirements described, channel availability for the unlicensed device can be determined. We therefore propose to require that the fixed/access unlicensed transmitter have the capability to access such a database and appropriate computational software to determine which TV channels are available for unlicensed use based on its location. The equipment would also be required to have the capability to limit its transmissions to only those channels that are identified as unused through this process. As an alternative, we propose to require that the unlicensed device be professionally installed by a party that would determine the device's geographic location and the available unused channels at that location. In this case, the installer could provide the device's coordinates to a frequency coordinator, industry association, local broadcast group or other party that maintains an appropriate and current data base to determine which TV channels are unused at the device's location. The installing party would then configure the device to operate only on unused channels. We seek comment on the qualifications an individual must possess in order to be classified as a professional installer. We recognize that industry organizations such as the National Association of Radio Telecommunications Engineers (NARTE) and the Part 15 Organization have developed Professional Installer Certification programs designed to ensure that installers are able to set up unlicensed links in a manner to minimize the possibility of creating harmful interference to other users of the spectrum. Should the Commission consider completion of industry-based certification programs such as these to be sufficient training to be recognized as a professional installer? What criteria should the Commission place on any such programs that it deems acceptable? As a second alternative, we seek comment on whether the control signal approach would also be appropriate for fixed/access devices. Under any of these approaches, we would require that the unlicensed device or its operator periodically access the channel availability database and software to ensure that the channels on which the device operates remain unused. We anticipate that this database and software could be made available by unlicensed equipment vendors, broadcast engineering firms or other third-party providers. We request comment on how often an unlicensed device or operator must access the channel availability database and update or reprogram the device's usable channel list.

15. We request comment on this approach, recognizing in particular the changes that will occur during the DTV transition. We also seek comment on whether we should allow fixed/access devices to operate with higher power than proposed above and, if so, what safeguards would be needed to protect current licensees in the TV bands. We note that we recently proposed to allow certain unlicensed devices to operate with higher power in rural or other areas with limited spectrum use. We also seek comment on whether we should require devices to use transmit power control (TPC) and operate with the minimum power necessary to achieve reliable communication to reduce the possibility of interference to licensed services and to enable better spectrum sharing between unlicensed devices.

16. We also request comment on whether additional requirements would be appropriate for fixed/access operations. For example, should we require that all fixed/access devices also be registered with an industry-accepted entity, such as a frequency coordinator, that maintains a registration database of all fixed/access transmitters along with their operating frequencies? This registration data base would include the unique identification of the fixed/access device, its geographic coordinates, and the channels available for use at that location. We also request comment and suggestions on the appropriate entity that we should select to maintain such a registration database. In addition, we request comment on whether we should permit fixed/access devices to use a spectrum sensing approach, as an alternative to the geo-location approach described above. We request comment on what would be the appropriate signal levels that an unlicensed device would need to be capable of detecting to ensure that no harmful interference is caused to licensed operations, and the current availability of suitable detection measures and devices. In addition, when making a determination as to an appropriate signal level, it would also be necessary to specify other parameters of the detection methodology to the extent these could not be incorporated in a signal level measurement, including, for example, the length, location, and frequency of the detection measurement. In particular, we request parties to address how such an approach would consider the so-called “hidden node” problem where the unlicensed transmitting device may be shielded from the TV transmitter but have a direct path to a nearby TV receiver.

17. We propose to define the technical criteria for determining when a TV channel can be considered vacant for the purpose of allowing operation of an unlicensed device on that channel. Analog and digital full service TV stations and Class A TV, low power TV, TV translator and TV booster stations are generally protected from interference within defined signal contours. The signal level defining a television station's protected contour varies depending on the type of station, e.g. , analog or digital TV, and the band in which a TV station operates. Different protected contour values are specified for both analog and digital stations that operate in the low VHF band (channels 2-6), the high VHF band (channels 7-13) and the UHF band (channels 14-69), see chart in paragraph 29 of the NPRM. We propose to use the service area criteria to define the areas that unlicensed devices must protect from harmful interference. All unlicensed operations would be required to protect TV service within the contours defined by the criteria.

18. Whether or not interference occurs depends on the desired-to-undesired (D/U) signal ratio needed for acceptable service. This D/U ratio will vary depending on the type of station, the frequency band and the nature of the undesired signal. In considering digital broadband unlicensed operations in the television band, we note that such operations will be at very low power compared to television operations. We also believe that the signals from such unlicensed devices can be expected to appear “noise-like” and that the carrier-related interference mechanisms that can affect analog television would not occur. We therefore believe that the requirements needed to protect television service from digital unlicensed devices should be limited to co- and adjacent channel operations only for fixed/access operations and co-channel operations only for personal/portable operations. Given the expected noise-like character of signals from unlicensed devices, we are proposing to use the same protection criteria that are currently specified in the rules for digital television. We request comment on this approach and on whether we need to proscribe a modulation requirement for such unlicensed devices to ensure that their transmissions appear noise-like. With regard to personal/portable operations, we believe at this time that the potential for harmful interference to adjacent channel television operations is sufficiently low that we do not need to impose adjacent channel restrictions on these devices. We note that even in the “worst case” situation at the edge of a television station's service area, i.e. , where the TV station's signal is the lowest, the interference potential from an adjacent channel personal/portable device would be minimal and, in practice, would be mitigated by the effects of ambient noise, shielding from buildings, walls, ground clutter, etc. We therefore are proposing to use the criteria in paragraph 30 of the NPRM, to ensure that unlicensed devices do not cause harmful interference to TV service.

19. We propose to require that the service and protection criteria be used in conjunction with appropriate computational software, including use of the Commission's propagation curves, and a television station engineering database to develop the control signal information on available channels for unlicensed personal/portable devices and for coordination and deployment of unlicensed fixed/access devices. All unlicensed operations in the TV bands would be subject to the general requirements of part 15 for not causing harmful interference and would be required to ensure that the D/U ratios for acceptable television service always maintained. We also seek comment on whether there are any special considerations for cases where consumers use indoor DTV antennas. As indicated, fixed/access unlicensed devices would be subject to the co- and adjacent channel D/U criteria while personal/portable devices would be subject only to the co-channel criteria. The adjacent channel D/U criteria would not apply to fixed/access devices between channels 4 and 5, channels 6 and 7, and channels 13 and 14 because of the frequency separations that exist between those channels. That is, those channels are not actually on adjacent frequencies. For adjacent channel operations within the protected service contour, we propose to require that calculation of desired signal levels be based on FCC F(90,90) curves or the protected contour field strength value, whichever is higher. For unlicensed operation outside the protected contour of a television station, calculations of television (desired) signal levels would be based on the FCC F(50,50) curves. Calculations of unlicensed (undesired) signal levels would be based on the FCC F(50,50) curves or other appropriate models. We believe this approach should provide additional protection to television viewers within the protected contour of an adjacent channel station.

20. In addition, we propose to not allow unlicensed devices to operate within the protected contour of any co-channel TV operation. This proposal along with the minimum D/U requirements would mean that such devices would have to be located at least some minimum distance outside the protected signal contours of co-channel television stations. This minimum distance would be determined using the values in above Table and would depend on the maximum power and antenna characteristics of the unlicensed device, the signal strength of the licensed station's protected service contour, the desired-to-undesired (D/U) signal ratio permitted at the licensed station's protected service contour, and the method used to calculate the signal contours of the unlicensed device. We seek comment on these proposals, including whether the proposed protection criteria are appropriate.

21. We believe it is generally desirable to allow unlicensed devices to access the largest practicable number of the 68 television channels. This would maximize the opportunities for operation of unlicensed devices in all areas, and would be particularly important for the successful implementation of unlicensed devices in areas where the TV bands are crowded with other services. There are, however, certain channels that we believe are, not suitable or appropriate for use by unlicensed devices, see paragraphs 34-36 of the NPRM for more discussion. These include channels 2-4, 37, and 52-69. In addition, we tentatively conclude that channels 14-20 are not suitable for use in markets where they are used for PLMRS and CMRS. With the exception of these channels, we propose to allow unlicensed devices to operate on any unused TV channel. Thus, TV channels 5-36 and 38-51 would be generally available for unlicensed operation and channels 14-20 would be available in most locations.

22. We seek comment on our proposals for the TV channels that would be available for unlicensed use. We also request comment on whether the proposed minimum separations to protect PLMRS/CMRS operations are appropriate, and in particular, what special protections, if any, are necessary to accommodate these operations, including those operations that are licensed pursuant to a waiver.

23. As noted, manufacturers of wireless microphones express concern that operation of new unlicensed devices in the TV bands could cause interference to wireless microphones. We believe that the operational characteristics of wireless microphones significantly reduce the likelihood of interference from unlicensed devices for several reasons. Wireless microphones are permitted relatively high output power given the range over which they are typically operating. The maximum permitted output power of these devices is 50 milliwatts in the VHF band and 250 milliwatts in the UHF band. Wireless microphones are used in locations such as theaters and sports arenas where the operating range would typically be hundreds of feet at the most, so operation at the power levels permitted in the rules results in a significant signal level at the wireless microphone receiver. Further, the vast majority of wireless microphones are frequency modulated (FM). FM receivers exhibit a “capture effect” in which they respond to only the strongest signal received on a frequency and reject any weaker interfering signals. Because the desired signal at a wireless microphone receiver is relatively strong, we believe that the likelihood of interference from unlicensed device signals is therefore low such that unlicensed use should generally be compatible with wireless microphones. Nonetheless, we seek comment on whether other measures are needed to protect wireless microphone operation including the possibility of designating one or two unused TV channels in each market for use by only wireless microphones.

24. Out of Band Emission Limits. We propose to require that unlicensed devices operating in the TV bands comply with the same out-of-band emission limits that apply to other part 15 digital transmission system transmitters. These limits seem appropriate given that we are proposing power and antenna characteristics for unlicensed devices in the TV bands that are similar to those for other part 15 devices that employ digital modulation. Specifically, we propose to require that out-of-band emissions in any 100 kHz bandwidth outside the frequency band in which the unlicensed device operates be at least 20 dB below that in the 100 kHz bandwidth within the band that contains the highest level of the desired power. Consistent with the current rules, we also propose to not require attenuation of emissions below the general limits specified in § 15.209(a). To reduce the likelihood of harmful interference to licensed services on adjacent channels or outside the TV bands, we further propose to require that emissions outside the TV channel(s) where an unlicensed device operates comply with the general limits in § 15.209(a). This is consistent with the out-of-band emission requirements for certain other part 15 intentional radiators. We seek comment on these proposals.

25. Security Requirements. As the Commission noted in the cognitive radio proceeding, equipment that relies on new capabilities such as geo-location raises the possibility of new types of abuse, such as reprogramming GPS receivers with geographic offsets or altering database information. In addition, the software used to select the appropriate operating parameters could be altered to make an unlicensed device transmit at frequencies, power levels or locations where it should not. To prevent devices from being modified to transmit on occupied frequencies and causing harmful interference to licensed services, we propose to require that an unlicensed device that operates in the TV bands have certain capabilities to ensure that it cannot be easily modified. Specifically, we propose to require that an unlicensed device not have any controls accessible to any party, other than a professional installer, that allow selection of the transmit channel or output power. We also propose to require that manufacturers of unlicensed devices that operate in the TV bands take steps to ensure that only the software that was approved with a device can be loaded into a device, and that the software not allow the user to operate the device with parameters outside those that were approved. This proposed requirement would apply to software that selects a device's operating frequency, to software used in determining a device's geographic location or identifying TV channels that are vacant, and to the information in the database accessed by a device. We further propose to require that an unlicensed device incorporate a means to detect whether tampering with the hardware or software has occurred, and that a device not operate if tampering is detected. We also propose to require that manufacturers describe their device's security features in the application for equipment authorization. We seek comment on these proposals. In particular, we seek comment on the steps manufacturers could take to protect hardware and software from modifications for improper purposes and how tampering with hardware or software could be detected.

26. Compliance and Enforcement. We propose to subject unlicensed devices operated under the proposals to the general operating conditions in § 15.5 that an unlicensed device not cause harmful interference and that it must accept interference caused by the operation of an authorized radio station. The operator of an unlicensed device operating under the rules proposed would be required to cease operation upon notification by a Commission representative that the device was causing harmful interference, regardless or whether the device was otherwise in compliance with the rules, until such time as the condition causing the harmful interference was corrected. We also ask whether we should hold parties that provide information on channel availability to unlicensed devices responsible for the validity of that information. To what extent should these parties be able to rely on information obtained from the Commission? In cases where errors or other inaccuracies were found in such data, we would require the responsible party to cease distributing the control information when advised that it is incorrect by a Commission representative. Such party would be allowed to resume distribution of channel availability information if and when that information was corrected. We request comment on these proposals for ensuring that harmful interference is not caused by the operation of these devices and the enforcement of the rules we are proposing for unlicensed operation on vacant channels. We also invite interested parties to submit comments and suggestions regarding any other possible enforcement mechanisms that might be appropriate and effective for unlicensed devices operating in the broadcast TV bands.

27. Measurement/Testing Procedures. Unlicensed transmitters must be tested to show compliance with the applicable technical requirements in part 15 of the rules before they can be certified. Part 15 specifies general testing requirements applicable to unlicensed transmitters and incorporates some industry procedures into the rules by reference, such as the American National Standards Institute (ANSI) C63.4-2001 measurement procedure. The types of tests required typically include the maximum output power or field strength, spurious emissions, occupied bandwidth and operating frequency.

28. We expect that any new testing procedures would be specified at the time any rules are adopted, as the Commission did in the proceeding making additional spectrum available for unlicensed devices in the 5 GHz band. We seek comment on any new tests that may be required for unlicensed devices that operate in the TV bands and on the appropriate testing procedures.

29. Certification by TCBs. Unlicensed transmitters operating under part 15 of the rules are required to be certified by the Commission or a designated Telecommunication Certification Body (TCB) before they may be legally marketed within the United States. In establishing the requirements and rules for TCBs, the Commission stated that while it intended to allow TCBs to certify a broad range of equipment, certain functions should continue to be performed by the Commission. These functions include certifying new or unique equipment for which the rules or requirements do not exist or for which the application of the rules is not clear. Because unlicensed devices operating in the TV bands would contain new technologies and we are proposing new rules to accommodate them, we expect that many questions about the application of the rules would arise. Consistent with the Commission's previous action in the software defined radio proceeding, we tentatively conclude that TCBs should not be permitted to certify unlicensed devices that operate in the TV bands until the Chief of the Office of Engineering and Technology issues a public notice announcing that TCBs may certify such devices. We seek comment on this tentative conclusion.

30. Unlicensed Use in Border Areas near Canada and Mexico. The allotment and assignment of TV channels in the border areas with Canada and Mexico are subject to agreements with each of those countries. Low power TV assignments within 32 kilometers (20 miles) of the Canadian border must be referred to the Canadian authorities for approval. In addition, low power UHF TV stations that are located less than 40 kilometers (25 miles) from the Mexican border, and low power VHF TV stations that are less than 60 kilometers (37 miles) from the Mexican border, must be referred to the Mexican government for approval. In keeping with the current agreements with Canada and Mexico, we propose to prohibit unlicensed fixed/access devices from operating less than these distances from the Canadian and Mexican borders until agreements are reached with those countries. We seek comment on this proposal. In particular, we request comment on how to ensure that unlicensed devices using vacant TV channels do not operate within the border areas, whether the methods used to ensure that these devices operate only on vacant TV channels could be adapted to preclude operation in the border areas, or whether some other methods would be more appropriate in this regard.

31. Need for Voluntary Standards. Unlicensed devices operating under part 15 of the rules have no protection from interference from other unlicensed devices. In bands that are heavily used by unlicensed devices such as the spread spectrum bands under § 15.247 of the rules, industry bodies have developed voluntary standards that facilitate spectrum sharing between unlicensed devices, such as the IEEE 802.11 standards. We seek comment on whether there is a need for such voluntary standards to facilitate sharing between unlicensed users in the TV bands. If so, how should such voluntary standards be developed and what should the Commission's role, if any, be in such a process to make certain that the standards remain current and support innovation?

32. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), 1 the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Notice of Proposed Rule Making (NPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM provided in paragraph 51 of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). 2 In addition, the Notice and IRFA (or summaries thereof) will be published in the Federal Register . 3

33. The NPRM would propose to allow unlicensed devices to operate in the TV broadcast bands at locations where spectrum is not being used by licensed services. The NPRM would propose to require unlicensed devices to incorporate “smart radio features” to prevent harmful interference from unlicensed devices to licensed services. For the purpose of developing interference protection criteria, the NPRM would propose to classify unlicensed broadband devices to be used in the TV bands into two general functional categories. The first category would consist of lower power “personal/portable” unlicensed devices, such as Wi-Fi like cards in laptop computers or wireless in-home LANs. The second category would consist of higher power “fixed/access” unlicensed devices that are generally operated from a fixed location and may be used to provide a commercial service such as wireless broadband internet access.

34. These proposals, if adopted, will prove beneficial to manufacturers and users of unlicensed technology, including those who provide services to rural communities. Specifically, we note that a growing number of wireless internet service providers (WISPs) are using unlicensed devices within wireless networks to serve the needs of consumers. WISPs around the country are providing an alternative high-speed connection in areas where cable or DSL services have been slow to arrive. The additional frequency bands where operation is proposed will help to foster a viable last mile solution for delivering Internet services, other data applications, or even video and voice services to underserved, rural, or isolated communities. In addition, TV frequencies, which are below 900 MHz, have less signal attenuation through foliage and walls than frequencies above 900 MHz currently used by WISPs, thus affording improved signal coverage.

35. The proposed action is authorized under sections 4(i), 301, 302, 303(e), 303(f), 303(r), 304 and 307 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 302, 303(e), 303(f), 303(r), 304 and 307.

36. 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, if adopted. 4 The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small business concern” under Section 3 of the Small Business Act. 5 Under the Small Business Act, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operations; and (3) meets many additional criteria established by the Small Business Administration (SBA). 6

37. The Commission has not developed a definition of small entities applicable to unlicensed communications devices manufacturers. Therefore, we will utilize the SBA definition application to manufacturers of Radio and Television Broadcasting and Communications Equipment. Under the SBA's regulations, a Radio and Television Broadcasting and Wireless Communications Equipment Manufacturer must have 750 or fewer employees in order to qualify as a small business concern. 7 Census Bureau data indicate that there are 1,215 U.S. establishments that manufacture radio and television broadcasting and wireless communications equipment, and that 1,150 of these establishments have fewer than 500 employees and would be classified as small entities. 8 The remaining 65 establishments have 500 or more employees; however, we are unable to determine how many of those have fewer than 750 employees and, therefore, also qualify as small entities under the SBA definition. We therefore conclude that there are at least 1,150 small manufacturers of radio and television broadcasting and wireless communications equipment, and possibly there are more that operate with more than 500 but fewer than 750 employees.

38. The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” 9 and “Cellular and Other Wireless Telecommunications.” 10 Under both SBA categories, a wireless business is small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 1997 show that there were 1,320 firms in this category, total, that operated for the entire year. 11 Of this total, 1,303 firms had employment of 999 or fewer employees, and an additional 17 firms had employment of 1,000 employees or more. 12 Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category Cellular and Other Wireless Telecommunications, Census Bureau data for 1997 show that there were 977 firms in this category, total, that operated for the entire year. 13 Of this total, 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more. 14 Thus, under this second category and size standard, the majority of firms can, again, be considered small.

39. Unlicensed transmitters are already required to be authorized under the Commission's certification procedure as a prerequisite to marketing and importation, and the proposals in this proceeding would not change that requirement. There would, however, be several changes to the compliance requirements. 15

40. Unlicensed transmitters capable of operating in the TV bands would have to incorporate features to ensure that they operate on only vacant channels. A transmitter used for fixed operation would have to incorporate a GPS receiver to determine its location and would have to access a database and computational software to determine which TV channels are vacant at its location. Alternatively, an unlicensed transmitter would not have to incorporate these features if it is professionally installed and the installer determines the geographic coordinates of the transmitter, determines which TV channels are vacant at that location, and adjusts the transmitter to operate on only those vacant channels. Portable unlicensed devices would have to be capable of receiving a signal from a fixed unlicensed transmitter, or a local FM or TV station indicating which TV channels are vacant in that area. If the unlicensed device did not detect a signal with this channel availability information, or if no vacant channels were available at its location, the unlicensed device would not be allowed to operate. In addition, any unlicensed transmitter used in the TV bands would have to incorporate features to prevent unauthorized modifications that could cause it to operate on occupied frequencies and therefore cause harmful interference. The applicant for certification would have to demonstrate in the application that the equipment meets these requirements.

41. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such 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.”  16

42. If the rules proposed in this notice are adopted, we believe they might have a significant economic impact on a substantial number of small entities. For an entity that chooses to manufacture or import equipment for the subject bands, the rules would impose costs for compliance with equipment technical requirements, such as incorporating a GPS receiver and database access capabilities into an unlicensed device to determine its location and which TV channels are vacant in an area, or incorporating an FM or TV receiver to detect the presence of channel availability data being transmitted in its area. However, the burdens for complying with the proposed rules would be the same for both large and small entities. Further, the proposals in this NPRM are ultimately beneficial for both large and small entities. We cannot find electrical engineering alternatives that would achieve our goals while treating small entities differently. Nonetheless, we solicit comment on any alternatives commenters may wish to suggest for the purpose of facilitating the Commission's intention to minimize the compliance burden on smaller entities.

43. None.

44. Pursuant to sections 4(i), 302, 303(e), 303(f), 303(r) and 307 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 302, 303(e), 303(f), 303(r) and 307, this Notice of Proposed Rule Making is hereby adopted.

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

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 15 as follows:

1. The authority citation for part 15 continues to read as follows:

2. Section § 15.244 is added to read as follows:

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 04-192, adopted May 18, 2004, and released May 28, 2004. The full text of this document is available for public inspection and copying during regular 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 qualexint@aol.com.

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:

This is a synopsis of the Commission's Notice of Proposed Rule Making , MB Docket No. 04-202, adopted May 26, 2004, and released May 28, 2004. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Qualex, International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20054, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com .

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:

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket Nos. 04-205 and 04-206, adopted May 26, 2004 and released May 28, 2004. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision 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 qualexint@aol.com .

Provisions of the Regulatory Flexibility Act of l980 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 contact.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:

This is a synopsis of the Commission's Report and Order, MB Docket No. 02-177, adopted May 19, 2004, and released May 21, 2004. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW, Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554.

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket Nos. 04-195, 04-196, 04-197, 04-198, 04-199, 04-200, and 04-201, adopted July 19, 2004, and released August 3, 2004. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision 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 qualexint@aol.com.

The Audio Division requests comments on a petition filed by Paul B. Christensen proposing the allotment of Channel 237C3 at Key Largo, Florida, as the community's second FM commercial aural transmission service. Channel 237C3 can be allotted to Key Largo in compliance with the Commission's minimum distance separation requirements at city reference coordinates. The reference coordinates for Channel 237C3 at Key Largo are 25-05-24 north latitude and 80-26-36 west longitude.

The Audio Division requests comments on a petition filed by McCall Broadcasting Company proposing the allotment of Channel 228C3 at McCall, Idaho, as the community's third FM commercial aural transmission service. Channel 228C3 can be allotted to McCall in compliance with the Commission's minimum distance separation requirements at city reference coordinates. The reference coordinates for Channel 228C3 at McCall are 44-54-30 north latitude and 116-06-00 west longitude.

The Audio Division requests comments on a petition filed by Brundage Broadcasting Company proposing the allotment of Channel 238C3 at McCall, Idaho, as the community's third FM commercial aural transmission service. Channel 238C3 can be allotted to McCall in compliance with the Commission's minimum distance separation requirements at city reference coordinates. The reference coordinates for Channel 238C3 at McCall are 44-54-30 north latitude and 116-06-00 west longitude.

The Audio Division requests comments on a petition filed by Long Valley Broadcasting Company proposing the allotment of Channel 275C3 at McCall, Idaho, as the community's third FM commercial aural transmission service. Channel 275C3 can be allotted to McCall in compliance with the Commission's minimum distance separation requirements at city reference coordinates. The reference coordinates for Channel 275C3 at McCall are 44-54-30 north latitude and 116-06-00 west longitude.

The Audio Division requests comments on a petition filed by King's Pines Broadcasting Company proposing the allotment of Channel 293C3 at McCall, Idaho, as the community's third FM commercial aural transmission service. Channel 293C3 can be allotted to McCall in compliance with the Commission's minimum distance separation requirements with a site restriction of 7.4 kilometers (4.6 miles) northeast of McCall. The reference coordinates for Channel 293C3 at McCall are 44-57-54 north latitude and 116-03-00 west longitude.

The Audio Division requests comments on a petition filed by SSR Communications Incorporated proposing the allotment of Channel 300A at Shorter, Alabama, as the community's third FM commercial aural transmission service. Channel 300A can be allotted to Shorter in compliance with the Commission's minimum distance separation requirements with a site restriction of 13.3 kilometers (8.3 miles) south of Shorter. The reference coordinates for Channel 300A at Shorter are 32-16-36 north latitude and 85-56-20 west longitude.

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 contact.

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:

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 04-204, adopted May 26, 2004, and released May 28, 2004. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC. 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, or via e-mail qualexint@aol.com.

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:

This Federal Register document is also accessible via the internet at the website of the Office of the Federal Register: http://www.gpoaccess.gov/fr/index.html .

The Magnuson-Stevens Act requires each regional fishery management council to submit fishery management plans or plan amendments to NMFS for review and approval, disapproval, or partial approval. The Magnuson-Stevens Act also requires NMFS, immediately upon receiving a fishery management plan or plan amendment, to publish notification in the Federal Register that the fishery management plan or plan amendment is available for public review and comment. At the end of the comment period, NMFS considers the public comments received during the comment period described above in determining whether to approve, partially approve, or disapprove the fishery management plan or plan amendment.

This notice of availability announces an amendment, Amendment 16-3, to the FMP to include overfished species rebuilding plans for bocaccio, cowcod, widow rockfish, and yelloweye rockfish. NMFS declared the bocaccio stock overfished on March 3, 1999 in a letter from NMFS to the Pacific Council announcing partial approval of Amendment 11 to the groundfish FMP, which approved the overfishing definition. Cowcod was declared overfished on January 4, 2000 (65 FR 221), widow rockfish on January 11, 2001 (66 FR 2338) and yelloweye rockfish on January 11, 2002 (67 FR 1555). Because the spawning stock biomass levels for these stocks were determined to be below the minimum stock size threshold defined by the FMP, rebuilding plans need to be implemented to return the stocks to their maximum sustainable yield biomass levels (target biomass).

The rebuilding plans being adopted under Amendment 16-3 were approved by the Pacific Council at its April 2004 meeting. These rebuilding plans specify rebuilding parameters for individual stocks and are intended to address the Magnuson-Stevens Act requirement to protect and rebuild overfished species, in particular National Standard 1 on overfishing and Section 304(e). When making the recommendation to implement these rebuilding plans, the Pacific Council sought to balance the rebuilding risks to each stock with the short and long-term socio-economic costs borne by groundfish buyers, commercial harvesters, and recreational operators as a result of constraining the fisheries to reduce total mortality of these overfished species. Amendment 16-3 is based on the policies and rebuilding parameters established by Amendment 16-1.

On August 18, 2003 (68 FR 49415), NMFS published a notice of availability for Amendment 16-1 to the FMP and approved the amendment on November 14, 2003. The final rule to codify provisions of Amendment 16-1 was published in the Federal Register on February 26, 2004 (69 FR 8861). Amendment 16-1 amended the FMP by requiring that Pacific Coast groundfish overfished species rebuilding plans be added into the FMP via FMP amendment and implemented through Federal regulations. For each approved overfished species rebuilding plan, the following parameters are to be specified in the FMP: estimates of unfished biomass (B 0 ) and target biomass (B MSY ), the year the stock would be rebuilt in the absence of fishing (T MIN ), the year the stock would be rebuilt if the maximum time period permissible under the national standard guidelines were applied (T MAX ), the target year in which the stock would be rebuilt under the adopted rebuilding plan (T TARGET ), and a harvest control rule. Other relevant information listed in Amendment 16-1 will also be included in the FMP, including the probability of the stock attaining B MSY by T MAX (P MAX ).

As required by the standards in Amendment 16-1, the rebuilding plans under Amendment 16-3 for bocaccio, cowcod, widow rockfish, and yelloweye rockfish include estimates of unfished biomass and target biomass, the year the stock would be rebuilt in the absence of fishing, the year the stock would be rebuilt if the maximum time period permissible under the national standard guidelines were applied, the target year in which the stock would be rebuilt under the adopted rebuilding plan, and the harvest control rule for each species. Amendment 16-3 would add these parameters to section 4.5.4. of the FMP. Other relevant information on each of these overfished stocks, such as stock distribution, fishery interaction, and the rebuilding strategy would also be added to section 4.5.4 of the FMP. The information described above would be included in the FMP to serve as management benchmarks.

In addition, the final rule to Amendment 16-1 requires that the two rebuilding parameters needed to establish annual or biennial optimum yields (OYs) for overfished species be codified in Federal regulations (69 FR 8861, February 26, 2004). These parameters are the target year for rebuilding and the harvest control rule that is to be used during the rebuilding period. The target rebuilding year is the year in which there is a 50 percent probability that the stock will be rebuilt with a given mortality rate. The harvest control rule expresses a given fishing mortality rate that is to be used over the course of rebuilding, unless modified in a subsequent rulemaking.