A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add a new airworthiness directive (AD), applicable to certain McDonnell Douglas Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30, DC-10-30F (KC-10A, KDC-10), DC-10-40, and DC-10-40F airplanes; and Model MD-10-10F and MD-10-30F airplanes, was published in the Federal Register as a notice of proposed rulemaking (NPRM) on January 22, 2004 (69 FR 3036). The proposed rule would have superseded AD 2001-14-08, amendment 39-12319 (66 FR 36441, July 12, 2001), to require that the repetitive inspections of the numbers 1 and 2 electric motors of the auxiliary hydraulic pump for electrical resistance, continuity, mechanical rotation, and associated airplane wiring resistance/voltage; and corrective actions, if necessary; be performed at reduced intervals ( i.e. , from 6,000 flight hours to 2,500 flight hours). That action was prompted by a report from Boeing that the original compliance time was not adequate, because another incident of failure of an electric motor of the auxiliary hydraulic pump had occurred during the interval between repetitive inspections. The proposed actions were intended to prevent various failures of electric motors of the auxiliary hydraulic pump and associated wiring, which could result in fire at the auxiliary hydraulic pump and consequent damage to the adjacent electrical equipment and/or structure.

Since the issuance of that NPRM, we issued AD 2004-05-20, amendment 39-13515 (69 FR 11504, March 11, 2004), applicable to certain McDonnell Douglas Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30, DC-10-30F (KC-10A and KDC-10), DC-10-40, and DC-10-40F airplanes; Model MD-10-10F and MD-10-30F airplanes; and Model MD-11 and MD-11F airplanes. That AD requires modification of the installation wiring for the electric motor operated auxiliary hydraulic pumps in the right wheel well area of the main landing gear, and repetitive inspections (at intervals not to exceed 2,500 flight hours) of the numbers 1 and 2 electric motors of the auxiliary hydraulic pumps for electrical resistance, continuity, mechanical rotation, and associated airplane wiring resistance/voltage; and corrective actions if necessary. That action was prompted by several reports of failure of the auxiliary hydraulic pump systems. The requirements of that AD are intended to prevent failure of the electric motors of the hydraulic pump and associated wiring, which could result in fire at the auxiliary hydraulic pump and consequent damage to the adjacent electrical equipment and/or structure.

The repetitive inspections required by AD 2004-05-20 are identical to those proposed in the NPRM. Accomplishment of the modification and repetitive inspections requirements of AD 2004-05-20 adequately addresses the identified unsafe condition.

Upon further consideration, we have determined that the proposed inspection requirements of the NPRM are identical to the inspection requirements of AD 2004-05-20. Accordingly, the NPRM is hereby withdrawn.

Withdrawal of this NPRM constitutes only such action, and does not preclude the agency from issuing another action in the future, nor does it commit the agency to any course of action in the future.

For the reasons discussed previously, we are also planning on rescinding AD 2001-14-08 in a separate rulemaking action.

Since this action only withdraws a notice of proposed rulemaking, it is neither a proposed nor a final rule and therefore is not covered under Executive Order 12866, the Regulatory Flexibility Act, or DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979).

Accordingly, the notice of proposed rulemaking, Docket 2003-NM-119-AD, published in the Federal Register on January 22, 2004 (69 FR 3036), is withdrawn.

The Commission adopted the application procedures specified in Commission Regulations 37.5  1 and 38.3  2 for boards of trade applying to be registered as DTEFs or designated as DCMs in 2001 when it first implemented the Commodity Futures Modernization Act of 2000 (CFMA). 3 These procedures presume that an application will be submitted and reviewed pursuant to a fast-track procedure under which a board of trade is deemed to be designated as a DCM 60 days after submitting its application, 4 or registered as a DTEF 30 days after submitting its application, 5 unless notified otherwise during the respective review period. These fast-track review periods are substantially shorter than the 180-day review period specified in Section 6(a) of the Act for reviewing DCM and DTEF applications. 6 The rules provide procedures for terminating the fast-track review, including termination by the Commission if it appears that the application's form or substance fails to meet the requirements of the Commission's regulations. 7

Among other things, the application procedures also generally identify information required to be included in applications for registration as a DTEF  8 or designation as a DCM, 9 require that the applicant support requests for confidential treatment of information included in the application with reasonable justification, 10 and identify where additional guidance for applicants can be found. 11 The rules also provide procedures for the withdrawal of an application for registration or vacation of registration as a DTEF  12 and for the withdrawal of an application for designation or vacation of designation as a DCM, 13 and specify the extent of the delegation of authority from the Commission to the Director of the Division of Market Oversight, with the concurrence of the General Counsel, with respect to the termination of expedited review procedures. 14

The Commission is proposing to modify the application procedures in a number of respects. With respect to the timeliness of the review of applications generally, it is proposing to establish the presumption that all applications are submitted for review under the 180-day timeframe specified in Section 6(a) of the Act. 15 An expedited 90-day review could be requested by the applicant, in which case the Commission would register the applicant as a DTEF or designate the applicant as a DCM during or by the end of the 90-day period unless the Commission terminated the expedited review for certain specifically identified reasons. In comparison to the current rules, the Commission is proposing to lengthen the expedited review periods for DCM applications by 30 days and for DTEF applications by 60 days. The Commission believes, based upon its extensive experience in processing DCM applications and in light of certain administrative practices that have developed since these rules were first adopted, that these potentially longer review periods are necessary to ensure a comprehensive review of applications and to meet other public policy objectives.

Specifically, the Commission has reviewed seven DCM applications under the fast-track review procedures and none of these reviews has been completed within the current fast-track 60-day review period. The applications themselves are large and often contain a number of regulatory and operational outsourcing agreements, as well as the technical documents describing electronic order matching systems. 16 The applications frequently need to be substantially amended or supplemented in various ways and unfailingly generate a series of questions by Commission staff responsible for reviewing the applications. In addition, a new Commission policy to promote transparency in Commission operations, implemented in August of 2003, provides for the posting of all such applications on the Commission's Web site for a period of at least 15 days for public review and comment. 17 This has also lengthened the review process. The proposed 90-day review period should provide the Commission with sufficient time to review these substantial applications and to respond to any public comments. The Commission notes that the proposed 90-day review period, while longer than the current fast-track review periods, would continue to be substantially shorter than the 180-day review period established under the Act. 18

The Commission also is proposing to modify its internal processing procedures under which an applicant would be registered as a DTEF or designated as a DCM. Under the proposal, an applicant would no longer be deemed to be registered or designated based upon the passage of time (30 days for DTEFs, 60 days for DCMs). If the applicant requested expedited review, the Commission would take affirmative action to register or designate the applicant as a DTEF or DCM, respectively, subject to conditions if appropriate, not later than 90 days after receipt of the application, unless the Commission terminated the expedited review. Thus, registration as a DTEF or designation as a DCM would involve affirmative action by the Commission, which would normally be in the form of issuance of a Commission order. It should be noted that it would be possible, under the proposed procedures, for applicants who submit applications that are complete and not amended or supplemented during the review period to be registered as a DTEF or designated as a DCM in less than 90 days.

With respect to the termination of expedited review, the rules provide that fast-track review may be terminated because the application's form or substance fails to meet the requirements of part 37 or 38, as appropriate, or upon written instruction of the applicant during the review period. Based upon its experience in reviewing applications submitted to date and in light of its new practice of posting all such applications on the Commission's Web site for public review and comment, the Commission is proposing to clarify and expand the rationale for terminating expedited review. In addition to the reasons for termination cited above, the Commission is proposing that the expedited review period be terminated if the application is materially incomplete or, as more fully described below, undergoes major amendment or supplementation. The Commission is also proposing to provide for termination of expedited review if an application raises novel or complex issues that require additional time for review. This proposal is responsive to the substantial public interest that the Commission has witnessed to date with respect to DCM applications.

The Commission is further proposing to delete the provision of the rules that would require the Commission, upon terminating fast-track review, to commence a proceeding to deny a DCM or DTEF application upon the request of the applicant. This procedure has proved to be unnecessary to date, and an analogous procedure is available under the statutory review procedure. 19 Finally, the Commission is proposing to amend the expedited review procedures to expressly provide that expedited review would be terminated if an applicant so requests in writing. The Commission stresses that if expedited review were terminated for any of the reasons cited above, the application would continue to be reviewed pursuant to the 180-day statutory procedure.

In order to further enhance the application process, the Commission is proposing to more completely identify and expand the information required to be provided by an applicant under both the statutory 180-day and the expedited 90-day review procedures. The proposal clarifies that the rules required to be included in all applications are those rules as defined in Commission Regulation 40.1 and more clearly identifies the documents required to be provided pertaining to the applicant's legal status and governance structure. The Commission anticipates that such documents would include copies of corporate charters, limited liability corporation or partnership agreements, and the like. 20

The proposal would make it clear that all applicants would be required to submit for review an executed or executable copy of any agreements or contracts entered into or to be entered into by the applicant that enable the applicant to comply with a requirement for trading or registration criterion (DTEFs) or a designation criterion or core principle (DCMs) and that final, signed copies of such documents would be required to be submitted prior to registration or designation. The initial application would be required to include something more than a letter of intent or draft contract or agreement, such as a final contract or agreement signed by at least one of the parties. While the Commission is cognizant that applicants generally prefer to defer the finalization of contracts in order to defer associated costs until registration or designation, it must balance that preference against the assurance that a contract or agreement will actually be executed prior to registration or designation.

With respect to the additional information that would be required to be submitted as part of the application, 21 the proposal requires that applicants submit a “regulatory chart” that describes the manner in which the items included in the application enable the applicant to comply with each requirement for trading and registration criterion (DTEFs) or with each designation criterion and core principle (DCMs). The proposal would also require that the applicant identify any item included in the application that raises novel issues and explain how that item satisfies the requirements for trading or the registration criteria (DTEFs) or the designation criteria or the core principles (DCMs). In addition, the proposal would require that the applicant submit a copy of any manual or other document describing the manner in which the applicant will conduct trade practice, market, and financial surveillance. Based upon experience in reviewing DCM applications, the Commission recognizes that this additional information is necessary for Commission review of the application when determining whether the applicant satisfies the requirements for trading and registration criteria (DTEFs) or the designation criteria and core principles (DCMs). Finally, the proposal would eliminate the requirement that the applicant support requests for confidential treatment of information included in the application with reasonable justification. The Commission believes that the procedures provided in Commission Regulation 145.9, Petition for confidential treatment of information submitted to the Commission, should be followed by all applicants.

Under the proposal, the items required to be included in an application to be reviewed under the statutory 180-day review procedures are identical to those required to be included in an application to be reviewed under the expedited review procedures with the following exceptions for the expedited review procedure: (1) An applicant must request expedited review, and (2) an application submitted for expedited review must not be amended or supplemented by the applicant, except as requested by the Commission or for correction of typographical errors, renumbering or other nonsubstantive revisions. The proposal provides that amending or supplementing an application in a manner that is inconsistent with the above provision would result in termination of the expedited review.

The Commission is also proposing to modify the delegation of authority provisions applicable to applications for registration as a DTEF and for designation as a DCM. Currently, the rules provide for the delegation of authority to the Director of the Division of Market Oversight, with the concurrence of the General Counsel, (1) to terminate the fast-track review of both types of applications and (2) to designate an applicant as a DCM subject to conditions. The Commission is proposing to modify and standardize the delegation of authority as it applies to DTEF and DCM applicants. Thus, under the proposal, the Commission would also delegate to the Director of the Division of Market Oversight, with the concurrence of the General Counsel, the authority to stay the running of the 180-day statutory review period for both types of applications if they are materially incomplete, as is provided under Section 6(a) of the Act. Because one result of the proposed amendments would be that registration as a DTEF and designation as a DCM would involve affirmative action on the part of the Commission, the proposal would rescind the delegation of the authority to designate the applicant as a DCM subject to conditions.

Finally, the Commission is proposing to reorganize the sequence of paragraphs in the rules where appropriate and to make minor word changes and deletions in order to clarify the application requirements. The Commission is also proposing to delete certain guidance regarding applications for designation as that information duplicates information available elsewhere in part 38. 22

The Commission continues to encourage applicants to consult with Commission staff prior to formally submitting a DTEF or DCM application to help ensure that an application, once submitted, will be reviewed in a timely manner. The Commission encourages interested parties, particularly prior applicants, to comment upon these proposals.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq. , requires Federal agencies, in promulgating rules, to consider the impact of those rules on small entities. The rules adopted herein would affect DCMs and DTEFs. The Commission has previously established certain definitions of small entities to be used by the Commission in evaluating the impact of its rules on small entities in accordance with the RFA. 23 In its previous determinations, the Commission has concluded that DCMs and DTEFs are not small entities for the purpose of the RFA. 24

Accordingly, the Commission does not expect the rules, as proposed herein, to have a significant economic impact on a substantial number of small entities. Therefore, the Chairman, on behalf of the Commission, hereby certifies, pursuant to 5 U.S.C. 605(b), that the proposed amendments will not have a significant economic impact on a substantial number of small entities. The Commission invites the public to comment on this finding and on its proposed determination that the trading facilities covered by these rules would not be small entities for purposes of the RFA.

This proposed rulemaking affects information-collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the Commission has submitted a copy of this section to the Office of Management and Budget (OMB) for its review.

Collection of Information: Rules Relating to part 37, Establishing Procedures for Entities to be Registered as Derivatives Transaction Execution Facilities, OMB Control Number 3038-0053. The proposed rules will not change the burden previously approved by OMB. The estimated burden was calculated as follows:

Estimated number of respondents: 10.

Annual responses by each respondent: 1.

Total annual responses: 10.

Estimated average hours per response: 200.

Annual reporting burden: 2,000.

Collection of Information: Rules Relating to part 38, Establishing Procedures for Entities to Become Designated as Contract Markets, OMB Control Number 3038-0052. The proposed rules will not change the burden previously approved by OMB. The estimated burden was calculated as follows:

Estimated number of respondents: 10.

Annual responses by each respondent: 1.

Total annual responses: 10.

Estimated average hours per response: 300.

Annual reporting burden: 3,000.

Organizations and individuals desiring to submit comments on the information collection requirements should direct them to the Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10202, New Executive Office Building, 725 17th Street, NW., Washington, DC 20503; Attention: Desk Officer for the Commodity Futures Trading Commission.

The Commission considers comments by the public on this proposed collection of information in:

Evaluating whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;

Evaluating the accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

Enhancing the quality, usefulness, and clarity of the information to be collected; and

Minimizing the burden of collecting information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g. , permitting electronic submission of responses.

OMB is required to make a decision concerning the collection of information contained in these proposed regulations between 30 and 60 days after publication of this document in the Federal Register . Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment to the Commission on the proposed regulations.

Copies of the information collection submission to OMB are available from the CFTC Clearance Officer, 1155 21st Street, NW., Washington, DC 20581, (202) 418-5160.

Section 15(a) of the Act requires the Commission to consider the costs and benefits of its action before issuing a new regulation under the Act. By its terms, section 15(a) does not require the Commission to quantify the costs and benefits of a new regulation or to determine whether the benefits of the proposed regulation outweigh its costs. Rather, section 15(a) requires the Commission to “consider the costs and benefits” of the subject rule.

Section 15(a) further specifies that the costs and benefits of the proposed rule shall be evaluated in light of five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. The Commission may, in its discretion, give greater weight to any one of the five enumerated areas of concern and may, in its discretion, determine that, notwithstanding its costs, a particular rule is necessary or appropriate to protect the public interest or to effectuate any of the provisions or to accomplish any of the purposes of the Act.

The proposed amendments are based upon past experience in reviewing DCM applications, and in light of the Commission's intention to post all such applications on its Web site for public review and comment, and are intended to facilitate increased flexibility, consistency and increased public input. The proposed amendments impose limited new submission obligations on entities seeking designation as DCMs or registration as DTEFs with the Commission. The proposed amendments establish the premise that all designation and registration applications are to be reviewed under the statutory 180-day review process unless otherwise requested and set new parameters for the expedited review of such applications and for the termination of such expedited review. These parameters create a useful and forward-looking expedited review process. Under the proposed rules, the Commission will review and take affirmative action upon designation and registration applications in an abbreviated time frame that adequately protects the interests of all market participants and the public. The proposed rules establish flexible expedited review procedures that allow the Commission to efficiently terminate expedited review when requested to do so by the applicant, or when necessary because of the submission of materially incomplete, novel or complex, or substantially amended or supplemented applications.

After considering these factors, the Commission has determined to propose the revisions to parts 37 and 38 set forth below. The Commission specifically invites public comment on its application of the criteria contained in section 15(a) of the Act for consideration. Commenters are also invited to submit any quantifiable data that they may have concerning the costs and benefits of the proposed rule with their comment letters.

In consideration of the foregoing, and pursuant to the authority contained in the Act, and, in particular, sections 2, 3, 4, 4c, 5, 5a and 8a of the Act, the Commission hereby proposes to amend chapter I of title 17 of the Code of Federal Regulations as follows:

The notice of proposed rulemaking (REG-124405-03) that is the subject of this correction is under section 59(e) of the Internal Revenue Code.

As published, REG-124405-03 contains errors that may prove to be misleading and are in need of clarification.

Accordingly, the publication of the notice of proposed rulemaking (REG-124405-03), that was the subject of FR Doc. 04-16474, is corrected as follows:

1. On page 43368, column 2, in the preamble under the paragraph heading “ Explanation of Provisions ”, third paragraph, line 18, the language, “expenditures subject to the section 59(e)” is corrected to read “Expenditures subject to the section 59(e) election”.

On Monday, August 8, 2004, the National Mediation Board published a notice of proposed rulemaking requesting public comment on the Board's proposal to establish a new Part 1210 in its rules concerning the “Administration of Arbitration Programs—National Railroad Adjustment Board (NRAB), Public Law Boards (PLBs) and Special Boards of Adjustment (SBAs) (69 FR 48177). The closing date for receipt of public comments was September 8, 2004.

After further consideration, the Board is extending the comment period by twelve (12) days. Therefore, the closing date for receipt of public comments is now September 20, 2004.

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 (CGD07-04-101), 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 Sector Miami 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 .

Columbus Day Regatta, Inc., sponsors a sailboat race with approximately 500 sailboats, ranging in length from 20 to 60 feet, that participate in the event. The race takes place in Biscayne Bay, from Dinner Key to Soldier Key, Saturday and Sunday during the second weekend in October (Columbus Day Weekend). Approximately 50 spectator craft, and several hundred additional vessels, transit the area for the annual event. These regulations are intended to provide for the safety of life on the waters of Biscayne Bay during the event by controlling traffic in the regulated area.

This rule creates a regulated area and prohibits non-participant vessels from entering the regulated area without the permission of the Coast Guard Patrol Commander. When the Coast Guard Patrol Commander determines that it is safe for vessels to transit the regulated area, vessel traffic may resume normal operations at the completion of the scheduled races and exhibitions, and between scheduled racing events. The regulated area encompasses all waters within the following points: (A) 25° 43′ 24″ N, 080° 12′ 30″ W; (B) 25° 43′ 24″ N, 080° 10′ 30″ W; (C) 25° 33′ 00″ N, 080° 11′ 30″ W; (D) 25° 33′ 00″ N, 080° 15′ 54″ W; (E) 25° 40′ 00″ N, 080° 15′ 00″ W.

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. Entry into the regulated area is prohibited for only limited time periods. Additionally, when the Coast Guard Patrol Commander determines that it is safe for vessels to transit the regulated area, vessel traffic may be allowed to resume normal operations at the completion of scheduled races and exhibitions and between scheduled racing events. Also, vessels may otherwise be allowed to enter the regulated area with permission of the Coast Guard Patrol Commander. Finally, advance notifications to the maritime community through marine information broadcasts will allow mariners to adjust plans accordingly.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of Biscayne Bay, between Dinner Key and Soldier Key, from 10 a.m. to 5 p.m., on the Saturday and Sunday of Columbus Day weekend. The regulations will only be in effect for 2 days in an area of limited commercial traffic. Also, vessel traffic will be allowed to resume normal operations at the completion of scheduled races and exhibitions, and between scheduled racing events, when the Coast Guard Patrol Commander determines it is safe to do so. Vessels may otherwise be allowed to enter the regulated area with permission of the Coast Guard Patrol Commander.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT . 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.

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 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 rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. Comments on this section will be considered before we make the final decision on whether to categorically exclude this rule from further environmental review.

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

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 (CGD01-04-096), 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 Blynman (SR127) Bridge, mile 0.0, across the Annisquam River has a vertical clearance of 7 feet at mean high water and 16 feet at mean low water in the closed position. The existing operating regulations are listed at 33 CFR 117.586.

The Kernwood Bridge, at mile 1.0, across the Danvers River has a vertical clearance of 8 feet at mean high water and 17 feet at mean low water in the closed position. The existing operating regulations are listed at 33 CFR § 117.595(c).

The Quincy Weymouth (SR3A) Bridge, at mile 2.8, across the Fore River has a vertical clearance of 45 feet at mean high water and 55 feet at mean low water in the closed position. The existing operating regulations are listed at 33 CFR § 117.621.

The Fox Hill (SR107) Bridge, at mile 2.5, across the Saugus River has a vertical clearance of 6 feet at mean high water and 16 feet at mean low water in the closed position. The existing operating regulations are listed at 33 CFR § 117.618(c).

The owner of the bridges, Massachusetts Highway Department (MHD), requested a change to the drawbridge operation regulations for the above four bridges to allow the bridges to operate on an advance notice basis on Thanksgiving Day each year.

The existing drawbridge operation regulations already allow the four bridges to operate on an advance notice basis on Christmas and New Years Day each year. Therefore, it is expected that adding Thanksgiving Day to that existing requirement should not impact navigation adversely since there have been very few requests to open these bridges on Thanksgiving Day in past years.

The Coast Guard believes this rule is reasonable because the bridges would still open on demand at any time on Thanksgiving Day after the advance notice is given.

This proposed rule would revise 33 CFR 117.586, which details the operating regulations for the Blynman (SR127) Bridge. This proposed rule would allow the bridge owner to require a two-hour advance notice for bridge openings on Thanksgiving Day from noon to 6 p.m. each year.

This proposed rule amends 33 CFR 117.595 by revising paragraph (c), which details the operating regulations for the Kernwood Bridge.

This proposed rule would allow the bridge owner to require a one-hour advance notice for bridge openings from noon to 6 p.m. on Thanksgiving Day each year.

This proposed rule amends 33 CFR 117.621 by revising paragraph (c), which details the holiday operating regulations for the Quincy Weymouth SR3A Bridge.

This proposed rule would allow the bridge owner to require a two-hour advance notice for bridge openings from noon to 6 p.m. on Thanksgiving Day each year.

This proposed rule amends 33 CFR 117.618 by revising paragraph (c), which details the operating regulations for the Fox Hill SR107 Bridge. This proposed rule would allow the bridge owner to require a one-hour advance notice for bridge openings from noon to 6 p.m. on Thanksgiving Day each year.

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 the bridges will continue to open on signal at any time after the advance notice is given.

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 the bridges will continue to open on signal at any time after the advance notice is given.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact us in writing at, Commander (obr), First Coast Guard District, Bridge Branch, 408 Atlantic Avenue, Boston, MA 02110-3350. The telephone number is (617) 223-8364. 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.

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 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 M16475.1D, 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:

The draft guidance for NO X Exemptions under the 8-hour ozone standard is intended to accompany the June 2, 2003 proposed rule to implement the 8-hour ozone NAAQS. The draft guidance describes, in detail, how to implement the NO X exemption provisions contained in section 182(f) of the Clean Air Act and EPA's rationale. The June 2, 2003 proposed rule contains the background discussion for the section 182(f) provisions.

The EPA has established an official public docket for this action under Docket ID No. OAR 2003-0079. Documents in the official public docket are listed in the index list in EPA's electronic public docket and comment system, EDOCKET. Documents may be available either electronically or in hard copy. Electronic documents may be viewed through EDOCKET. Hard copy documents may be viewed at the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OAR 2003-0079 Docket is (202) 566-1742.

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

Certain types of information will not be placed in the EDOCKET. Information claimed as confidential business information (CBI) and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Publicly available docket materials that are not available electronically may be viewed at the EPA Docket Center.

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

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

The draft guidance for NO X Exemptions under the 8-hour ozone standard is also available for public inspection at EPA's Web site at http://www.epa.gov/ttn/naags/ozone/o3imp8hr. In addition, copies can be obtained from the Ozone Policy and Strategies Group, Office of Air Quality Planning and Standards (C539-02), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711.

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

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

EPA Dockets: Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket , and follow the outline instructions for submitting comments. Once in the system, select search, and then key in Docket ID No. OAR 2003-0079. The system is an anonymous access system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

E-mail: Comments may be sent by electronic mail (e-mail) to grano.doug@epa.gov , Attention Docket ID No. OAR 2003-0079. In contrast to EPA's electronic public docket, EPA's e-mail system is not an anonymous access system. If you send an e-mail comment directly to the Docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

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

By Mail: Send your comment to: Nitrogen Oxides Exemption Guidance for Proposed Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard, Environmental Protection Agency, Mail code: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC, 20460, Attention Docket ID No. OAR 2003-0079.

By Hand Delivery or Courier: Deliver your comments to: (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC, Attention Docket ID No. OAR-2003-0079. Such deliveries are only accepted during the Docket's normal hours of operations.

By Facsimile: Fax your comments to: (202) 566-1741, Attention Docket ID. NO. OAR-2003-0079.

Do not submit information that you consider to be CBI electronically through EPA's electronic pubic docket or by e-mail. Send or deliver information identified as CBI only to the following address: EPA, 109 TW Alexander Dr., RTP, NC 27709, Attn: Roberto Morales, MS C404-02, Attention Docket ID No. OAR 2003-0079. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

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

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

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

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

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

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

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

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

Regulated Entities. If your facility produces vegetable oil from corn germ, cottonseed, flax, peanuts, rapeseed (for example, canola), safflower, soybeans, or sunflower, it may be a “regulated entity.” Categories and entities potentially regulated by this action include those listed in the following table:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility is regulated by this action, you should examine the applicability criteria in 40 CFR part 63, subpart GGGG. If you have any questions regarding the applicability of this action to a particular entity, consult the individual described in the preceding FOR FURTHER INFORMATION CONTACT section.

Submitting Comments Containing CBI. Do not submit this information to EPA through EDOCKET, regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. (For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI). In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

Tips for Preparing Your Comments. When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

• Describe any assumptions and provide any technical information and/or data that you used.

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns, and suggest alternatives.

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

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

Worldwide Web (WWW). In addition to being available in the docket, an electronic copy of this action will also be available through the WWW. Following signature, a copy of this action will be posted on EPA's Technology Transfer Network (TTN) policy and guidance page for newly proposed or promulgated rules: http://www.epa.gov/ttn/oarpg . The TTN at EPA's Web site provides information and technology exchange in various areas of air pollution control. If more information regarding the TTN is needed, call the TTN HELP line at (919) 541-5384.

Public Hearing. Persons interested in presenting oral testimony or inquiring as to whether a hearing is to be held should contact Ms. Willie Russell, Waste and Chemical Processes Group, Emissions Standards Division, (C439-04), Research Triangle Park, NC 27711, telephone number (919) 541-5034, at least 2 days in advance of the potential date of the public hearing. Persons interested in attending the public hearing must also call Ms. Russell to verify the time, date, and location of the hearing. The public hearing will provide interested parties the opportunity to present data, views, or arguments concerning these proposed emissions standards.

Direct Final Rule. A direct final rule identical to the proposal is published in the Rules and Regulations section of today's Federal Register . If we receive any significant adverse comment pertaining to the amendments in the proposal, we will publish a timely notice in the Federal Register informing the public that the amendments are being withdrawn due to adverse comment. We will address all public comments concerning the withdrawn amendments in a subsequent final rule. If no relevant adverse comments are received, no further action will be taken on the proposal and the direct final rule will become effective as provided in that notice.

The regulatory text for this proposal is identical to that for the direct final rule published in the Rules and Regulations section of today's Federal Register . For further supplementary information, see the direct final rule.

Statutory and Executive Order Reviews. The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq. , generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the Agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's proposed rule amendments on small entities, a small entity is defined as: (1) A small business whose parent company has fewer than 750 employees; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

We believe there will be little or no impact on small entities because the purpose of today's proposed amendments is to simplify the rule by limiting the recordkeeping and reporting requirements for facilities utilizing a low-HAP extraction solvent exclusively in the vegetable oil production process. The Administrator certifies that this action will not have a significant economic impact on a substantial number of small entities.

For information regarding other administrative requirements for this action, please see the direct final rule located in the Rules and Regulations section of today's Federal Register .

This Further Notice of Proposed Rulemaking (FNPRM), Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities , CG Docket No. 03-123, FCC 04-134, does not contain proposed information collection requirement subject to the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13. This is a summary of the Commission's FNPRM , adopted June 10, 2004, and released June 30, 2004. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested parties may file comments on or before 45 days after Federal Register publication, and reply comments on or before 75 days after Federal Register publication. 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 . Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply. Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by electronic media, by commercial overnight courier, or by first-class or overnight U.S. Postal Services 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 or electronic media 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 and electronic media sent by overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Room TW-B204, Washington, DC 20554. Parties who choose to file by paper should also submit their comments on diskette. These diskettes should be submitted to: Dana Jackson, Federal Communications Commission, 445 12th Street, SW., Room 6-C410, Washington, DC 20554. Such a submission should be on a 3.5 inch diskette formatted in an IBM compatible format using Word 97 or compatible software. The diskette should be accompanied by a cover letter and should be submitted in “read only” mode. The diskette should be clearly labeled with the commenter's name, proceeding (including the lead docket number in this case, CG Docket No. 03-123, type of pleading (comment or reply comment), date of submission, and the name of the electronic file on the diskette. The label should also include the following phrase “Disk Copy—Not an Original.” Each diskette should contain only one party's pleadings, preferably in a single electronic file. In addition, commenters must send diskette copies to the Commission's copy contractor, Best Copy and Printing (BCPI), Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Copies of any subsequently filed documents in this matter will be available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this FNPRM may be purchased from the Commission's duplication contractor, BCPI, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customer may contact BCPI, Inc. at their Web site: www.bcpiweb.com . To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This FNPRM can also be downloaded in Word and Portable Document Format (PDF) at: http://www.fcc.gov/cgb/dro .

This FNPRM does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4) .

In this FNPRM , the Commission addresses a number of outstanding issues with respect to VRS IP Relay including: (1) The appropriate cost recovery methodology for VRS; (2) what type of mechanism the Commission might adopt to determine which IP Relay and VRS calls are interstate and which are intrastate; (3) whether IP Relay and/or VRS should become mandatory forms of TRS; (4) whether IP Relay and/or VRS should be required to be offered 7 days a week, 24 hours a day; and (5) whether the Commission should adopt a speed of answer requirement for VRS, and if so, what should it be and how should it be phased-in. The Commission also raises the issues of whether there should be separate compensation rates for traditional TRS and IP Relay, and whether the compensation payments for VRS should be established for a two-year period instead of a one-year period. Further, the Commission seeks additional comment on issues concerning the certification and oversight of OP Relay and VRS providers. The Commission also seeks comment on the TRS Advisory Council, including its composition and the role it plays in advising the TRS Fund Administrator on TRS issues. Finally, the Commission raises issues with regard to recurring problems with the abuse of CAs by callers who seek to either harass the CA, or harass a called party, behind the apparent anonymity of IP Relay call. As in the past, the Commission goal is to continue to ensure that functionally equivalent TRS services are available to consumers, and to ensure the ongoing integrity of the Interstate TRS Fund.

As required by the Regulatory Flexibility Act (RFA), ( see 5 U.S.C. 603; the RFA, see 5 U.S.C. 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Public Law 104-121, Title II, 110 Statute 857 (1996)), the Commission has prepared this present Initial Regulatory Flexibility Analysis ( IFRA ) of the possible significant economic impact on small entities by the policies and rules proposed in this FNPRM . See 5 U.S.C. 603. We also expect that we could certify this action under 5 U.S.C. 605, because it appears that only one TRS provider is likely a small entity (because it is a non-profit organization). Therefore, there are not a substantial number of small entities that may be affected by our action. Written public comments are requested on this IFRA . Comments must be identified as responses to the IFRA and must be filed by the deadlines for comments on the FNPRM . The Commission will send a copy of the FNPRM , including this IFRA , to the Chief Counsel for Advocacy of the Small Business Administration. See 5 U.S.C. 603 (a). In addition, the FNPRM and IFRA (or summaries thereof) will be published in the Federal Register .

The Commission is issuing this FNPRM to seek comment on cost recovery methodology for VRS, what type of mechanism the Commission might adopt to determine which IP Relay and VRS calls are interstate and which are intrastate, whether IP Relay and VRS should become mandatory forms of TRS and offered 24/7; the appropriate composition and role of the TRS Advisory Council; certification and oversight of IP Relay and VRS providers; and the issue of abuse and harassment of TRS CAs. In doing so, the Commission hopes to enhance the quality of TRS, and broaden the potential universe of TRS users in a manner that will be consistent with Congress' mandate under 47 U.S.C. 225(d)(2) that TRS regulations encourage the use of existing technology and not discourage or impair the development of improved technology.

Specifically, the FNPRM seeks comment on several IP Relay related issues, including: (1) What type of mechanism the Commission may adopt to determine whether IP Relay calls are intrastate or interstate (so that States would be required to pay for intrastate IP Relay calls and the Interstate TRS Fund would continue to reimburse interstate IP Relay calls); (2) whether IP Relay should be a mandatory service and be offered 24/7; and (3) whether there should be separate compensation rates for traditional TRS and IP Relay. The Commission also seeks comment on several VRS related issues including: (1) The appropriate cost recovery methodology for VRS; (2) what type of mechanism the Commission might adopt to determine which VRS calls are interstate and which are intrastate, (3) whether VRS should be a mandatory form of TRS and be offered 24/7; (4) whether a speed of answer rule specific to VRS should be adopted, and (5) whether the data reporting period for VRS should be different from the present one-year period. Additionally, the FNPRM seeks comment on certification and oversight of IP Relay and VRS providers. The Commission also seeks comment on whether the composition of the TRS Advisory Council should be changed or expanded to include parties that represent the Interstate TRS Fund or any relevant interests not currently represented by the Council. Finally, the FNPRM seeks comment on whether the Commission should adopt TRS rules to curb abusive calls directed at the CA or the called party.

The authority for actions proposed in this FNPRM may be found in sections 1, 4 (i) and (j), 201-205, 218 and 225 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154 (i), 154 (j), 201-205, 218 and 225.

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 rules adopted herein. 5 U.S.C. 604(a)(3). The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 5 U.S.C. 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 5 U.S.C. 601(3) (incorporating by reference the definition of “small business concern” in 15 U.S.C. 632). Pursuant to the 5 U.S.C. 601(3), the statutory definition of small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register .” A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). 15 U.S.C. 632. A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. 5 U.S.C. 601(4).

Below, we further describe and estimate the number of small entity licensees and regulates that, in theory, may be affected by these rules. For some categories, the most reliable source of information available at this time is data the Commission publishes in its Trends in Telephone Service Report. FCC, Wireline Competition Bureau, Industry Analysis and Technology Division, “Trends in Telephone Service” at Table 5.3, Page 5-5 (August 2003) ( Trends in Telephone Service ). This source uses data that are current as of December 31, 2001.

Incumbent Local Exchange Carriers: Neither the Commission nor the SBA has developed a small business size standard specifically directed toward providers of incumbent local exchange service. The closest applicable size standard under the SBA rules is for Wired Telecommunications Carriers. 13 CFR 121.201, NAICS Code 517110. This provides that such a carrier is small entity if it employs no more than 1,500 employees. Commission data from 2001 indicate that there are 1,337 incumbent local exchange carriers, total, with approximately 1,032 having 1,500 or fewer employees. Trends in Telephone Service at Table 5.3. The small carrier number is an estimate and might include some carriers that are not independently owned and operated; we are therefore unable at this time to estimate with greater precision the number of these carriers that would qualify as small businesses under SBA's size standard. Consequently, we estimate that there are no more than 1,032 ILECS that are small businesses possibly affected by our action.

Small Incumbent Local Exchange Carriers: We have included small incumbent local exchange carriers in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia , meets the pertinent small business size standard ( e.g. , a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” 15 U.S.C. 632. The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope. Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to William E. Kennard, Chairman, FCC (May 27, 1999). The Small Business Act contains a definition of “small-business concern,” which the RFA incorporates into its own definition of “small business.” See 15 U.S.C. 632(a) (Small Business Act); 5 U.S.C. 601(3) (RFA). SBA regulations interpret “small business concern” to include the concept of dominance on a national basis. 13 CFR 121.102(b). We have therefore included small incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

Interexchange Carriers: Neither the Commission nor the SBA has developed a small business size standard specifically directed toward providers of interexchange service. The closest applicable size standard under the SBA rules is for Wired Telecommunications Carriers. 13 CFR 121.201, NAICS Code 517110. This provides that such a carrier is small entity if it employs no more than 1,500 employees. Commission data from 2001 indicate that there are 261 interexchange carriers, total, with approximately 223 having 1,500 or fewer employees. Trends in Telephone Service at Table 5.3. The small carrier number is an estimate and might include some carriers that are not independently owned and operated; we are therefore unable at this time to estimate with greater precision the number of these carriers that would qualify as small businesses under SBA's size standard. Consequently, we estimate that there are no more that 223 interexchange carriers that are small businesses possibly affected by our action.

TRS Providers: Neither the Commission nor the SBA has developed a definition of “small entity” specifically directed toward providers of telecommunications relay services (TRS). Again, the closest applicable size standard under the SBA rules is for Wired Telecommunications Carriers. 13 CFR 121.201, NAICS Code 517110. Currently, there are 10 interstate TRS providers, which consist of interexchange carriers, local exchange carriers, State-managed entities, and non-profit organizations. Approximately five or fewer of these entities are small businesses. See National Association for State Relay Administration (NASRA) Statistics. These numbers are estimates because of recent and pending mergers and partnerships in the telecommunications industry. The FCC notes that these providers include several large interexchange carriers and incumbent local exchange carriers. Some of these large carriers may only provide TRS service in a small area but they nevertheless are not small business entities. The FCC estimates that there is at least one TRS provider that is a small entity that may be affected by our action.

This FNPRM seeks comment on the adoption of a cost recovery methodology for VRS, and the possible means for determining which IP Relay and VRS calls are interstate and which are intrastate. The adoption of a cost recovery methodology for VRS other than the current per minute compensation methodology may require VRS providers to maintain different records, although there would be no new reporting requirements. The adoption of a mechanism to determine which IP Relay and VRS calls are interstate and which are intrastate would require providers to keep records of interstate and intrastate calls; it may also change the type of reports and recordkeeping that IP Relay and VRS providers maintain, depending upon how IP Relay and VRS providers are currently maintaining their records. Presently, IP Relay and VRS providers report their costs for all calls and their record of minutes provided to the Interstate TRS Fund Administrator. If a mechanism were adopted to determine which IP Relay and VRS calls were interstate and which were intrastate, IP Relay and VRS providers would need a database to keep a record of calls and minutes of use that differentiate between interstate and intrastate calls.

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

The proposals in the FNPRM , and the comments the Commission seeks regarding them, results from the Commission's role with respect to the implementation and operation of nationwide TRS for persons with hearing and speech disabilities. See, e.g. , 47 U.S.C. 225. The guiding principle shaping these proposals is Congress's requirement that TRS keep pace with advancing technology and that the Commission's rules should not discourage the implementation of technological advances or improvements, as well as the mandate that TRS services be functionally equivalent to voice telephone services. The majority of TRS service is provided by large interexchange carriers and incumbent local exchange carriers. Because we believe that the number of small entities would be impacted by these proposals, and that the impact, if any, would be minor, it is premature to propose specific alternative that would minimize significant economic impact on small businesses. Further, since we believe the essence of the rules we may adopt pursuant to this proceeding will confer the benefits of a more streamlined approach to administering TRS on all entities, including small entities, we are further persuaded that it would be premature to consider alternative to the conferral of such benefits. However, we invite comment on specific alternative that may minimize the economic impact of the proposed rules on small businesses.

None.

Pursuant to the authority contained in sections 1, 2, 4(i), 4(j), 201-205, 218, and 225 of the Communications Act of 1934, as amended, 47 U.S.C 151, 152, 154(i), 154(j), 201-205, 218, and 225, this further notice of proposed rulemaking is adopted .

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

Under the Privacy Act of 1974, as amended, an agency that maintains a system of records may exempt that system from some of the provisions of the Privacy Act; the decision to do so is subject to 5 U.S.C. 553, requiring notice and opportunity for public comment. When TSA was part of DOT, we published rulemaking proposals to exempt a number of systems of records maintained by TSA from provisions of the Privacy Act. When TSA moved to DHS (March 1, 2003), those rulemaking proceedings had not been completed; they were started anew and finished by DHS.

The Privacy Act record systems whose exemption proposals are affected by this action are:

1. The Transportation Security Enforcement Record System (TSER), which would have enabled TSA to maintain a civil enforcement and inspections system for all modes of transportation for which TSA has security-related duties. This system would have covered information regarding violations and potential violations of TSA security regulations (TSRs), and would have been used, generally, to review, analyze, investigate, and prosecute violations of TSRs.

2. To facilitate TSA's performance of employment investigations for transportation workers, as required by 49 U.S.C. 114 and 44936, a system to be known as the Transportation Workers Employment Investigations system.

3. To facilitate TSA's performance of employment investigations for its own workers, a system to be known as the Personnel Background Investigation Files System.

4. Aviation Security-Screening Records would have enabled the TSA to maintain a security-screening system for air transportation. This system would have contained information regarding TSA's conduct of risk assessments required by 49 U.S.C. 114 and 44903. The system would have been used, generally, to review, analyze, and assess threats to transportation security and respond accordingly.

For the reason outlined above, the Department is withdrawing these proposals.

The Motor Carrier Act of 1935 provides that “[t]he Secretary of Transportation may prescribe requirements for—(1) Qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation” (49 U.S.C. 31502(b)).

This advance notice of proposed rulemaking (ANPRM) deals with “safety of operation and equipment” of motor carriers and “standards of equipment” of motor private carriers, and, as such, is well within the authority of the 1935 Act. FMCSA has allowed the use of automatic on-board recording devices to track drivers' hours of service since 1988 (49 CFR 395.15). The recorders authorized by § 395.15 are mostly mechanical in design. Rapid developments in electronic technology have made them increasingly obsolete. This ANPRM therefore addresses the possibility of allowing motor carriers to use modern EOBRs to document drivers' compliance with the hours-of-service requirements. In order to meet the requirements of the 1935 Act, EOBRs must reliably and accurately perform the functions for which they are designed. The ANPRM seeks information on a wide variety of questions related to that issue.

The Motor Carrier Safety Act of 1984 provides concurrent authority to regulate drivers, motor carriers, and vehicle equipment. It requires the Secretary to “prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles. At a minimum, the regulations shall ensure that—(1) Commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely; and (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators” (49 U.S.C. 31136(a)).

This ANPRM is concerned primarily with section 31136(a)(2) and (3). The hours-of-service regulations are designed to ensure that driving time—one of the principal “responsibilities imposed on the operators of commercial motor vehicles”—does “not impair their ability to operate the vehicles safely.” EOBRs that are properly designed, maintained, and used would enable motor carriers to track their drivers' on-duty and driving hours very accurately, thus permitting them to better prevent regulatory violations or excessive driver fatigue, but also allowing them to schedule vehicle and driver operations more efficiently. Driver compliance with the hours-of-service rules would help to ensure that “the physical condition of [commercial motor vehicle drivers] is adequate to enable them to operate the vehicles safely.” In short, FMCSA is attempting to evaluate the suitability of EOBRs to demonstrate compliance with and enforcement of the hours-of-service regulations, which in turn have major implications for the welfare of drivers and the safe operation of commercial motor vehicles (CMVs).

In addition, Sec. 408 of the ICC Termination Act of 1995 (Public Law 104-88, 109 Stat. 803, at 958) required the agency to issue an ANPRM “dealing with a variety of fatigue-related issues pertaining to commercial motor vehicle safety (including * * * automated and tamper-proof recording devices * * *) not later than March 1, 1996.” The ANPRM was published on November 5, 1996 (61 FR 57252), the NPRM on May 2, 2000 (65 FR 25540), and the final rule on April 28, 2003 (68 FR 22456). FMCSA decided not to adopt EOBR regulations in 2003 but noted that it planned “to continue research on EOBRs and other technologies, seeking to stimulate innovation in this promising area” (68 FR 22488).

On July 16, 2004, the United States Court of Appeals for the District of Columbia Circuit vacated the 2003 final rule ( Public Citizen et al. v. FMCSA, No. 03-1165) for reasons unrelated to EOBRs. In dicta, however, the court said that Sec. 408 of the ICC Termination Act “required the agency, at a minimum, to collect and analyze data on the costs and benefits of requiring EOBRs” [slip opinion, at 19]. This ANPRM, which has been under development for some time, is an effort to do just that.

Ensuring safe driving of commercial motor vehicles is at the heart of the Federal hours-of-service regulations (49 CFR Part 395). The hours-of-service regulations apply to drivers of commercial motor vehicles, as defined in 49 CFR 390.5. One of the most important goals of the rules is to ensure that commercial vehicle operators do not drive for long periods without opportunities to obtain restorative sleep. Adequate sleep is an important contributor to human health. From the standpoint of highway safety, adequate sleep is necessary to ensure that a person is alert behind the wheel and able to respond appropriately to changes in the driving environment. Therefore, the hours-of-service rules prohibit CMV drivers from driving or being directed to drive more than a specified amount of time between mandatory off-duty periods.

The regulations also prohibit driving after a specific amount of cumulative on-duty time on both a daily and multiday basis. On-duty time is time spent driving and performing other duties at a motor carrier's direction. Under § 395.8, all motor carriers and drivers must keep records to track on-duty and off-duty time. FMCSA uses these records to carry out safety oversight activities, as do State agencies enforcing compatible State laws and regulations. Under an exception at § 395.1(e), a motor carrier whose drivers operate within a 100 air-mile radius of the normal work-reporting location may use “time records,” or time cards, to satisfy the hours-of-service recordkeeping requirement.

The methods of recording and documenting hours of service have been modified several times over the years. The Interstate Commerce Commission (ICC) first established a requirement for a “Driver's Daily Log” in 1940. In 1952, the ICC revised the format in Ex Parte No. MC-40, which reduced the number of drivers' duty status categories from 15 to 4 (17 FR 4422 at 4488, May 15, 1952). This latter revision added the familiar graph-grid recording format to the driver's log. In 1982, the document's name changed to “Driver's Record of Duty Status (RODS)” and additional minor changes were made (47 FR 53389, Nov. 26, 1982). Other additional minor revisions were made in subsequent years.

Motor carriers began to look to automated methods of recording drivers' duty status records in the mid-1980s as a way to save drivers time and improve the efficiency of their compliance-assurance procedures. In April 1985 (50 FR 15269, Apr. 17, 1985), the Federal Highway Administration (FHWA), the predecessor agency to FMCSA within the U.S. Department of Transportation (DOT), 1 granted a waiver to Frito-Lay, Inc. to allow it to use on-board computers in lieu of requiring drivers to complete handwritten RODS. Nine other motor carriers were subsequently granted waivers.

In 1986, the Insurance Institute for Highway Safety (IIHS) petitioned FHWA to require the installation and use of automatic on-board recordkeeping systems. The petition was denied, and IIHS petitioned for reconsideration in February 1987.

In July 1987 (52 FR 26289, Jul. 13, 1987), FHWA published an advance notice of proposed rulemaking concerning on-board recording devices. FHWA followed with a notice of proposed rulemaking in March 1988 (53 FR 8228, Mar. 14, 1988) and a final rule in September of the same year (53 FR 38666, Sep. 30, 1988). The rule revised part 395 of the Federal Motor Carrier Safety Regulations by allowing motor carriers the flexibility to equip CMVs with an automatic on-board recording device (AOBRD) in lieu of requiring drivers to complete handwritten RODS. The term automatic on-board recording device was defined under § 395.2 as:

The regulations at 49 CFR 395.15 cover a motor carrier's authority to require use of the devices; information requirements; the duty status and additional information that must be recorded; and the manner of recording change of duty status location. Entries must be made only by the driver. Drivers are required to note any failures in the performance of the device and to reconstruct records of their duty on blank RODS forms. For the benefit of both drivers and safety officials, especially law enforcement officers, an instruction sheet describing the operation of the automatic on-board recording device must be present in the vehicle.

Requirements for submission to the motor carrier of the RODS generated by automatic on-board recording devices are similar to those for handwritten RODS, except that the driver is not required to sign the record. Submission of the record(s) constitutes certification that all entries made are true and correct.

Performance requirements for AOBRDs (at 49 CFR 395.15(i)) are straightforward. The manufacturer must certify that the design of the device “has been sufficiently tested to meet the requirements of this section and under the conditions it will be used.” § 395.15(i)(1) The design must permit duty status to be updated only when the vehicle is at rest, unless the driver is registering the crossing of a State boundary. The AOBRD and support systems must be tamperproof “to the maximum extent practicable.” The AOBRD must provide a visual and/or audible warning to the driver if it ceases to function, and any sensor failures and edited data must be identified in the RODS printed from the device.

Finally, the AOBRD must be maintained and recalibrated according to the manufacturer's specifications; drivers must be adequately trained in the proper operation of the device; and the motor carrier must maintain a second (backup) copy of electronic hours-of-service files in a separate location.

In part because on-board recorder technology was so new and such a significant departure from paper RODS when the final rule was developed 16 years ago, the rule included at § 395.15(j) a provision to rescind a motor carrier's authority to use an AOBRD. Under this provision, the agency may order any motor carrier or driver to revert to using paper hours-of-service records if it determines that the carrier poses certain safety management control issues.

Although the 1988 final rule addressed the possibility that some tachographs  2 could conceivably comply with the provisions of § 395.15 (53 FR 38666, at 38669, “This new definition is sufficiently broad to include computers and tachographs.”), FHWA subsequently determined that conventional mechanical tachographs do not comply with these requirements. The agency explained its decision in a letter of September 23, 1991, to Abbott Tachograph. A copy of this letter is in the docket, along with copies of all reports, memoranda of understanding, and letters referenced in this document.

At the time § 395.15 was issued, the technology to allow on-board recorders to communicate data wirelessly between the CMV and the motor carrier's base of operations did not exist on a widespread commercial basis. Thanks to emerging technologies used in these devices, the narrowly crafted on-board recorder regulation now needs to be revised. Various communications technologies, many of which include vehicle tracking using global positioning system (GPS)-based technologies, allow real-time transmission of a vehicle's location and other operational information. We call these current-generation recording EOBRs. By taking advantage of these technologies, a motor carrier can improve not only its scheduling of vehicles and drivers but also its asset management and customer service. In fact, some system providers offer applications for real-time hours-of-service monitoring that build upon the time- and location-tracking functions included in the providers' hardware and software products.

To bridge the gap between the current regulations and state-of-the-art technology, FMCSA has relied upon interpretations, regulatory guidance, pilot demonstration programs, and, most recently, exemptions concerning the use of on-board recorders.

A comprehensive update of regulatory guidance published on April 4, 1997 (65 FR 16369, at 16426) included two interpretations concerning AOBRDs. The first clarified that backup electronic records are not required if a paper record of duty status document is printed. The second underscored the prohibition against a driver's using an AOBRD to amend his or her duty status during a trip.

We recently added an interpretation concerning the use of algorithms in AOBRDs to identify the location of a change of duty status relative to the nearest city, town, or village. Added to the Motor Carrier Regulatory Guidance and Interpretation System (MCREGIS) in March 2003, this interpretation specifies that algorithms must be sufficiently accurate to ensure, through the on-board recorder's integral connection to the vehicle's systems, correlation between the driving time and distance traveled. Also, the location description for the duty status change must be sufficiently precise to enable enforcement personnel to quickly determine the CMV's geographic location on a standard map or road atlas. This regulatory interpretation is available on FMCSA's Web site at http://www.fmcsa.dot.gov/rulesregs/fmcsr/fmcsrguide.htm.

On April 6, 1998, FHWA published a notice of interpretation on GPS technology (63 FR 16697). The notice also announced a voluntary program whereby motor carriers using GPS and related safety management computer systems could enter into an agreement with the agency to use the systems in lieu of handwritten RODS or a conventional AOBRD. This program was offered as a pilot demonstration project consistent with the President's initiatives on reinventing government and regulatory reform. The project's intent was to demonstrate whether use of this technology by the motor carrier industry could improve compliance with the hours-of-service requirements while increasing operational efficiency and reducing paperwork burden. In June 1998, Werner Enterprises, Inc. (Werner) entered into a Memorandum of Understanding (MOU) with the agency to test the use of its system under such a pilot project.

At the time we entered into the MOU with Werner, certain features of GPS technology, wireless communications, and related computer systems were not readily adaptable to the provisions of § 395.15. However, the GPS-based systems that Werner proposed to pilot had other capabilities that would satisfy or go beyond these requirements. Table 1 of the notice of interpretation (63 FR 16697, at 16698, Apr. 6, 1998) describes these capabilities in relation to specific provisions of § 395.15. One notable difference was that, rather than being integrally linked to the vehicle to record driving time, the GPS system software employed algorithms that set on-duty and off-duty times using preprogrammed assumptions.

In a 1999 letter to FHWA, a safety advocacy organization stated that, based on information received from drivers, Werner's system did not appear to provide an accurate accounting of drivers' duty status under certain conditions, such as prolonged low speeds in traffic congestion. After an in-depth assessment, we concluded that under certain conditions the Werner system indeed failed to provide an accurate reporting of duty status or times. The agency required Werner to modify its GPS tracking and recording systems to ensure accurate documentation of drivers' duty status as mandated by 49 CFR Part 395.

In March 2002, FMCSA revised its MOU with Werner to address recording methods and the use of algorithms in the recording and reporting processes. The changes included eliminating certain default duty status entries as well as revising the method of recording CMV speed and, more important, distance traveled. According to item 13 of the revised MOU:

In effect, the revised MOU required Werner to obtain engine data through the tractor's electronic communications network in order to provide an “integral synchronization” with the vehicle's operation.

In December 2003 (68 FR 69117, Dec. 11, 2003), FMCSA published a notice of intent to grant an exemption to Werner Enterprises, Inc., thereby allowing the carrier to use GPS technology and complementary computer software programs to monitor and record its drivers' hours of service. The terms and conditions for the proposed exemption were the same as those of the revised MOU for the Werner pilot demonstration project, with a few exceptions. The need to rely on an exemption to allow Werner's use of these advanced technologies for RODS purposes underscores the importance of aligning EOBR performance specifications with state-of-the-art technologies.

The comment period for this notice of intent ended on January 12, 2004. Comments may be viewed at http://dms.dot.gov, Docket number 15818.

Both the 1988 final rule and the 1998 notice of interpretation allowed the use of automated recording systems as an alternative to handwritten RODS. However, the prospect of a mandatory use requirement for these systems has provoked concern and debate.

On February 5, 1990, FHWA received from the National Transportation Safety Board (NTSB) Safety Recommendation H-90-28: “Require automatic/tamper-proof on-board recording devices such as tachographs or computerized logs to identify commercial truck drivers who exceed hours-of-service regulations.” The NTSB classified this safety recommendation “Closed—Unacceptable Action” on July 7, 1998. While conceding that FHWA's “deliberately paced research and symposium approach may yield useful information,” the NTSB found “no indication of aggressive research and prompt action to develop and require advanced technical solutions to address the intent of Safety Recommendation H-90-28.”

On August 3, 1995, IIHS, Advocates for Highway and Auto Safety, and several other highway safety and advocacy organizations petitioned FHWA to require on-board recorders in CMVs. The petitioners believed the mandated use of these devices would improve hours-of-service compliance, thereby reducing the number of fatigued drivers and fatigue-related crashes.

The DOT Office of Inspector General also referred to FHWA's proposed requirement for EOBRs in its report, Top Ten Management Issues (Report Number PT-2001-017, January 18, 2001, available at http://www.oig.dot.gov/control_numbers.php). The Office of Inspector General report stated:

In the final rule published in April 2003, however, the proposal for mandatory use of EOBRs was withdrawn (68 FR 22456, at 22488-22489, Apr. 28, 2003). We concluded that insufficient economic and safety data, coupled with a lack of support from the transportation community at large, did not justify an EOBR requirement at that time. We based these conclusions on the following:

(1) Neither the costs nor the benefits of EOBR systems were adequately ascertainable, and the benefits were easier to assume than to accurately estimate.

(2) The EOBR proposal was drafted as a performance standard, but enforcement officials generally preferred the concept of a design standard in order to facilitate data accessibility.

(3) There was considerable opposition to the proposal to phase in the EOBR requirement, starting with large long-haul motor carriers—those having more than 50 power units. Large carriers argued that this was irrational because small carriers generally have higher crash rates. Major operators also complained that the phase-in schedule would force them to pay high initial prices for EOBRs, while carriers allowed to defer the requirement would benefit from lower costs associated with increased demand, competition, and economies of scale.

(4) There was considerable concern about the potential use of EOBR data for purposes other than hours-of-service compliance.

The final rule on drivers' hours of service did contain assurances that research related to EOBRs and other technologies would continue. This ongoing research would include evaluation of ways to encourage or provide incentives for their use. Key research factors would include:

(1) Ability to identify the individual driver;

(2) Tamper resistance;

(3) Ability to produce records for audit;

(4) Ability of roadside enforcement personnel to access the hours-of-service information quickly and easily;

(5) Level of protection afforded other personal, operational, or proprietary information;

(6) Cost; and

(7) Driver acceptability.

FMCSA requests comments on these research factors. In your view, are we considering the appropriate criteria for our research into EOBRs?

Since publishing the final rule, we have concluded that we need additional, up-to-date information relating to the costs and benefits of using EOBRs. As a safety agency, we have a responsibility to evaluate the potential costs and benefits associated with requiring the use of these devices, even if we ultimately decide that voluntary use or incentives are better alternatives. In today's notice, we are requesting comments on the costs and benefits of a requirement to use EOBRs, including the relative costs and benefits of an industrywide requirement versus a more limited mandate on certain industry sectors, such as long-haul carriers. We are specifically interested in factors such as hardware acquisition (including modules for CMVs, equipment for communications between the CMV and the home terminal, vehicle-location-reference systems, and use of satellite transponder channels); training of drivers and back-office personnel; equipment installation, maintenance, repair, and replacement; and preservation of both electronic records and backup paper RODS, if necessary. In addition, we are interested in information relating to potential reductions in personnel costs derived from reduced checking and storage of RODS. Although we recognize that precise estimates might not be possible from motor carriers that have not adopted EOBR or related technologies, we would like to know their best estimates based on conversations they may have had with potential equipment or service vendors.

With reference to hours-of-service violations, we are especially interested in hearing from motor carriers using EOBRs (or AOBRDs) instead of paper RODS. Any information such carriers could supply concerning their violation and out-of-service rates would be valuable for purposes of comparison with those rates at carriers not using EOBRs or AOBRDs.

As important, we are requesting comments on the need to revise the general EOBR performance requirements, as provided in § 395.15. In addition, we request information and comments concerning potential revisions to § 395.15 for the purpose of developing a comprehensive, performance-based specification for EOBRs that would ensure maintenance of data integrity throughout all recording, transmission, storage, retrieval, and display processes. Our objective is to assess recording methods to improve hours-of-service compliance and oversight through the use of automated—including electronic—duty status records. This complements FMCSA's ongoing research into the potential of various technologies to assure that drivers are fit and alert behind the wheel.

This advance notice of proposed rulemaking begins a process leading to clearer points of reference for EOBR system developers and users. We recognize the need to consider the ways that motor carriers' use of EOBRs could affect how they maintain documents on their operations. We also will consider how our compliance-assurance procedures, and those used by State and local enforcement officials, would need to change.

Today's notice requests comments on potential new definitions for a performance-based specification for on-board recording devices. As noted previously, since most if not all of the current generation of on-board recorders collect, store, and display data electronically, we will call those devices EOBRs. However, many recording devices developed before the introduction of electronically controlled engines in the early 1990s may collect some data via mechanical sensors, transform the mechanical signal to an electrical one, and transmit the signal electronically.

For the purpose of this rulemaking, we will use the generic term “EOBR.” This would encompass any new devices as well as the AOBRDs that comply with the current definition at § 395.2 and operational requirements at § 395.15. However, we use the term “AOBRD” by itself to refer to the earlier-generation devices designed to comply with the current requirements.

Electronic systems, although relatively costly to design and maintain compared with paper-based systems, have the capacity to eliminate a substantial amount of time-consuming manual data entry and review. We recognize the many challenges in gathering and recording data that is both accurate and sufficient in scope and detail to determine motor carriers' and CMV drivers' compliance with the hours-of-service regulations. One such challenge is verification of non-driving duty status information.

As noted previously, this rulemaking is but one element of FMCSA's multipronged research effort concerning EOBRs. For example, § 395.15 should establish specific guidelines for ensuring accuracy, integrity, and security of data in the recording and storage of driving time information. Development of such guidelines could potentially entail: (1) A requirement for a means to identify system defaults impacting the accuracy and completeness of driving time records; (2) ready methods to pinpoint tampering (either during the recording process or after the fact) associated with capture and recording of driving time; and (3) a requirement for a means to ensure reliable identification of the particular driver whose driving time is being captured and recorded, including distinguishing between team drivers.

Another core issue concerns the requirement in the current regulation for a device that is integrally synchronized with specific operations of the CMV in which it is installed. The intent is that the device provide “ground truth” for on-duty-driving. The on-board recorder must identify who drove the CMV and for how long. It must facilitate accurate entry of other duty status categories. Further, it must be designed to prevent duty status activity and time entries from being modified after the fact, while allowing drivers to enter explanatory information in the Remarks section.

FMCSA recently conducted a study published as On-Board Recorders: Literature and Technology Review (Report No. FMCSA-RT-02-040, July 2002). Through interviews with technology vendors and engine manufacturers, we learned that a number of products on the market provide some or all of the functions required under § 395.15. Nevertheless, few vendors actively market these features or have developed products specifically to provide the hours-of-service recordkeeping function. The study attributed this fact both to lack of market demand and to vendors' uncertainty regarding the Federal requirements. Interviews conducted with FMCSA staff as part of the study revealed concerns about:

• Technology limitations—particularly regarding the ability of a single system to capture all data perceived as important;

• The need to clearly define current performance requirements, and whether the requirements are well understood by the motor carrier industry; and

• The extent to which the enforcement community is prepared to rely on on-board devices for determining hours-of-service compliance.

A second study, Hours of Service (HOS) Research and Analysis Modules (January 2003), addressed in greater detail the potential for developing performance specifications for EOBRs. The five research modules cover data record structure and data security, engine control module and transmission control module use, georeferenced data, paper backup systems, and high-level architectures.

To increase our understanding of how on-board recorders might be more efficiently designed and used, FMCSA requests comments on the issues discussed below. We also will appreciate your responses to the questions included on some of the issues. Issue sections are designated A through O, and questions within sections are numbered. Please reference these letter and number keys in your responses.

As noted previously, ensuring safe driving of commercial motor vehicles is at the heart of the hours-of-service regulations. An EOBR must be able to capture the data necessary to establish when a driver's duty status is “on duty, driving.” The earliest AOBRDs captured this data using sensors—such as the speedometer or odometer circuit, or the tail shaft (output or drive shaft from an engine)—that reflected changes in vehicle motion. This data was combined with data from an internal clock to derive driving time. Advances in engine electronics allowed the data to be collected directly from the engine, presenting an opportunity to use the J1708 databus  3 to transmit it to an EOBR. One manufacturer, Delphi Corporation, asked FMCSA if this method complied with the Federal Motor Carrier Safety Regulations. In a December 2003 letter to Delphi Corporation, we affirmed that it would.

Some systems that track vehicle location using GPS technologies collect and record vehicle-position data only, inferring duty status based on software algorithms. As discussed earlier under GPS Technologies: Notice of Interpretation and Request for Participation, FMCSA became aware of at least one system that, in certain limited instances, did not provide accurate driving status information because of a combination of long polling intervals and preset system defaults. Thus, even though location data may be transmitted and recorded accurately, a motor carrier's or system operator's assumptions concerning changes in vehicle location between polling intervals, or data collection cycles (instances when vehicle location information is captured, along with the date and time), could result in incorrect duty status recordings. This would be particularly true if a driver failed to make entries in his or her on-board system to indicate that driving had begun. For example, a CMV moving slowly in a traffic stream through a construction zone might be traveling at less than a presumed driving speed, so that the duty status might be recorded as “on-duty, not driving.” Although drivers would presumably have an opportunity to correct their entries, they might not do so consistently.

We request comments concerning the need for synchronization and possible alternatives to the current regulatory language.

As noted earlier, the current regulatory guidance for § 395.15 (available on FMCSA's Web site at http: //www.fmcsa.dot.gov/rulesregs/fmcsr/fmcsrguide.htm ) covers three issues: maintenance of a second electronic copy of files, amendment of a completed record by the driver, and use of algorithms to identify the location of the driver's change in duty status. The agency's current guidance on the second issue is as follows:

We are reevaluating this guidance in the light of current EOBR capabilities. The guidance reflects two assumptions: that amendments would likely be made to change information already entered; and that the time the revision is made (and the times and duty status being revised) would be erased from the EOBR's memory. The second assumption does not account for the EOBR's ability (an ability probably shared by many AOBRDs) to maintain an internal audit log. 4 If the EOBR can accurately record the date and time of an entry, it could be programmed to prompt the driver to enter duty status or comments at any time the vehicle is stopped, the driver leaves the vehicle (if the vehicle has a door sensor), or the ignition is turned on or off. The EOBR also could prompt the driver to enter the time the work shift began and whether it included off-duty periods. We believe question 2 of the regulatory guidance may need to be revised to allow the driver to amend the duty status record, provided the system maintains both the original and amended records.

From a software perspective, this might be achieved through use of parallel data streams. One data stream would record the operation of the CMV using data and information contained in and extracted from other systems and devices on the vehicle. Examples include engine use information derived from engine control module (ECM) time and throttle position data; vehicle speed data, derived from throttle position and engine-on data; data on miles driven, from the odometer reading and time; and date and time data, from either the ECM clock or the internal clock on the recording unit. A second, overlying data stream would include the four categories of driver's duty status, along with remarks and other information used in the duty status reporting.

FMCSA requests comments on this issue. We would particularly appreciate responses to the following questions:

(1) Should FMCSA revise its definition of “amend” in the regulatory guidance for § 395.15 to include or exclude certain specific activities? For example, should a driver be able to annotate the Remarks section to provide details of an activity being performed while he or she is in an on-duty-not-driving status? Should a driver be able to revise a record to change the amount of on-duty driving time recorded over a very short period (for example, while dropping a trailer at the home terminal)? Should a driver be able to revise a record to change the amount of driving time if he or she exits a vehicle while it is stopped in traffic upstream of a crash?

(2) Should drivers be allowed to amend the duty status record if the system maintains both the original and amended records?

(3) Should the agency maintain the blanket prohibition against drivers' amending a RODS generated by an AOBRD?

A significant number of hours-of-service violations are related to the on-duty-not-driving status, which onboard recorders are not designed to capture automatically (that is, without a driver's input). We understand that at least one commercial system defaults to an on-duty-not-driving status when the CMV is stopped. The previously mentioned Werner system also was modified to default the driver's duty status to “on-duty not driving” when the vehicle is stationary and the driver has not made an entry.

We request comments on this issue, and would particularly appreciate responses to the following question:

If a driver is away from a parked CMV but has not entered a change in duty status immediately upon stopping the vehicle, how might the driver correct the entry, other than by printing a hard copy of the day's RODS and making a handwritten entry?

Establishing and enforcing appropriate use and documentation requirements could improve linkage of operational data to the specific driver's activities. A fundamental requirement would be to ensure that duty status data accurately identifies the driver. Many information technology applications use personal identification numbers and/or smart cards. In some situations where the need for identification and verification is critical for security reasons, some types of biometric identifiers are being used and others are being explored. FMCSA requests comments on this issue.

A standardized reporting format is important for ensuring a clear and unambiguous duty status record. This helps establish the sequence and timing of events and facilitates verification of regulatory compliance. Although State roadside enforcement officials conducting vehicle and driver inspections generally review only a single driver's (or a pair of team drivers’) records at a time, these safety personnel work under time constraints and often-stressful conditions. We have received numerous reports of State enforcement officials who purposely avoid reviewing EOBR and electronic records because they are unfamiliar with their appearance and unsure they can review them accurately and efficiently.

Reviews of driver records by motor carrier safety officials responsible for assuring fleet compliance, as well as those conducted by enforcement officials at a carrier's business office, differ from those conducted by roadside inspectors. During onsite reviews, safety or enforcement officials consider both individual and collective driving records in order to determine whether patterns of noncompliance may exist.

The intent of § 395.15 is to require that an electronically produced record of duty status contain the same information as a handwritten record. The 13 items required by regulation for AOBRD-generated duty status records (§ 395.15(c) and (d)) are identical to those required for manually produced RODS (§ 395.8 (b), (c), and (d)), with two exceptions. Section 395.15 does not include a requirement for a driver's certification and signature, nor does it explicitly provide for a Remarks section. The driver's signature is unnecessary because, under § 395.15(h)(3), submission of the record certifies that all entries made are true and correct. A Remarks section is not mandatory because there is no practical means for the driver to enter miscellaneous comments or information into an on-board recorder.

FMCSA is interested in developing a performance-oriented reporting standard that would serve officials conducting roadside inspections and compliance reviews. Since motor carriers and the traveling public would benefit from the prevention of regulatory violations, this reporting standard should help motor carriers facilitate their own internal review activities. Your comments on the following two issues would assist us in developing such a standard:

(1) Visual record —Although § 395.15(i)(5) does not specify details of how information is displayed on the screen of an AOBRD, § 395.15(b)(3) requires information support systems— separate from the on-board device—to comply with the requirements of § 395.8(d), including the use of a graph grid. We request comments on potential performance-oriented specifications for the display on the EOBR as well as for support systems that would provide a clear visual record while affording greater flexibility to those who design and use EOBRs. Comments from the law enforcement community would be especially helpful.

(2) Data interchange standards —Section 395.15(b)(3) states that EOBR support systems should meet the information interchange requirements of “American National Standard Code for Information Interchange EIARS-232/CCITT V.24 port.” This refers to the RS-232 serial communications standard  5 that was state-of-the-practice in the 1980s. Although some devices continue to use this interface, it has been supplanted in many applications. Furthermore, as a hardware communications standard, it does not address data formatting or content. We request suggestions concerning current and emerging data interchange standards for hardwired and wireless communications that would ensure the integrity of both data content and data formats. Your comments on other issues related to recording, reporting, and presentation (display) formats also would be helpful.

In connection with the necessity for tamper resistance in an EOBR, we are carefully considering the process of recording and identifying information in the form of an audit trail or event log. An important design feature would be user-friendly interface(s) to support not only motor carriers' internal reviews, but also reviews by FMCSA safety officials and roadside inspections by our State partners under the Motor Carrier Safety Assistance Program. The information from an EOBR—including audit trail data—may need to be made available at a motor carrier's place of business on demand (as during a compliance review).

An audit trail must reflect the driver's activities while on duty and tie them to the specific CMV(s) the driver operated. Its design must balance privacy considerations with the need for a verifiable record. The audit trail should automatically record a number of events, including (1) Any authorized or unauthorized modifications to the duty status records, such as duty status category, dates, times, or locations, and (2) any “down” period “ for example, one caused by the onset of device malfunction. In addition, the system should provide a gateway for electronic or satellite polling of CMVs in operation, or for reviewing electronic records already downloaded into a central system. This capability would permit reviewers to obtain a detailed set of records to verify time and location data for a particular CMV.

The presentation should include audit trail markers to alert safety officials, and personnel in the motor carrier's safety department, to records that have been modified. The markers would be analogous to margin notes and use highlighted code.

FMCSA requests comments on this issue.

It has been suggested that EOBR systems should be capable of interfacing with third-party auditing software packages, such as those used to verify point-to-point roadway distances. Others have suggested that hours-of-service compliance be verified instead through direct access to driver and motor carrier routing and scheduling data. Those favoring the latter method believe it could be most useful in the context of a compliance review, where safety officials must request the motor carrier's direct assistance and cooperation to access the carrier's systems. A special set of interfaces, including views of specific information relevant to compliance, might be needed to enable safety officials to review the information they require.

We request responses to the following questions, as well as comments on other concerns related to the use of third-party software for compliance verification:

(1) What experience have motor carriers and roadside enforcement officials had using third-party software for compliance verification?

(2) What experience have motor carriers had using third-party software for purposes of scheduling, hours-of-service compliance review, and auditing?

(3) What experience have motor carriers had assisting FMCSA with extensive reviews of records of duty status that are maintained only in electronic form? Would third-party software have helped or hindered the process?

Some electronic devices and systems on vehicles (such as antilock brake systems on cars and trucks) perform a power-on self-test. It might be possible to develop such a preprogrammed in-service test protocol for EOBRs that could be performed by safety officials at roadside. A test of this type might provide a limited amount of “go/no-go” information “ such as whether the communications line between the vehicle and the recorder is intact, whether the clock has been reset, and the status of other specific system elements.

FMCSA requests responses to the following questions, as well as comments on other issues related to verification of proper operation:

(1) What experience have roadside enforcement officials had using third-party software for compliance verification?

(2) How would a driver, a supervisor reviewing records, or a safety official verify that a recorder and the systems to which it is linked are operating properly?

(3) How would a roadside safety official or FMCSA compliance official perform that verification?

(4) Should a device be able to produce the results of its original and/or most recent acceptance or certification tests?

(5) Could a device be configured to produce an “electronic audit” on demand?

(6) How would audits be performed on disabled or inoperable units?

(7) How long should a driver be allowed to operate a CMV while the EOBR is not functioning, provided the driver is maintaining paper RODS?

(8) How would downtime, repair, and recalibration be documented?

(9) Should a unit be marked with its calibration data/record? If so, how should the unit be marked?

We are considering whether there is a need for the agency to establish detailed functional specifications for EOBRs, rather than continuing to rely upon the current generic performance standards under § 395.15(i). In addition, we are considering whether the current process of manufacturers' self-certification should be continued. The functional specifications would include standard performance criteria and compliance test procedures. If manufacturers (or independent third parties) were to perform tests according to FMCSA's compliance testing procedures, the agency could then offer to certify certain devices “ or possibly designs for devices “ as complying with the functional specifications. Parties performing the certification would need to obtain a device (or a sufficiently advanced prototype) to test.

This raises two issues: the propriety of FMCSA's rejecting a device, and the circumstances under which enforcement action should be taken.

If, during initial testing, the device were found not to meet the requirements of a published functional specification, FMCSA could unquestionably reject it. If, on the other hand, FMCSA certified an EOBR (and/or software) to which the manufacturer later made design changes, and the manufacturer's modifications diverged from one or more of the agency's functional specifications, the EOBR and/or software would no longer comply with our requirements. In such a case, immediate enforcement action against motor carriers found to be using the modified EOBR (or software) might not be appropriate. FMCSA might instead publish a Federal Register notice describing the noncompliance situation, and giving motor carriers an opportunity to check and recalibrate the affected EOBRs (or to otherwise ensure the devices operate within specified parameters). Any motor carriers that failed to comply with the terms of the Federal Register notice could then be subject to enforcement action, whether by FMCSA alone or in concert with other Federal agencies. One possible approach might be a public interest exclusion (PIE) similar to that used in 49 CFR part 40, subpart R. The purpose of a PIE is to protect the public interest from serious noncompliance with the requirements.

The European Union (EU) Type Specification for Electronic Tachographs, European Union Directive 2135/98, 6 provides an extensive and complex design specification for the hardware, software, and data storage and auditing functions of an electronic on-board recorder. While some characteristics of the design specification, particularly the basic recording and data storage requirements, may lend themselves to adaptation, the software design and recording media requirements were developed to respond to the EU's desire for an integrated system for on-vehicle recorders and recordkeeping systems and, as such, are highly prescriptive and complex. In addition, although the type specification for these devices was finalized in 1998, the date for mandatory installation of the electronic tachographs in new commercial vehicles, originally set for August 2002, has repeatedly been revised. It currently is set for August 2005.

Furthermore, the EU enforcement community expressed a number of concerns about perceived differences, incompatibilities, and inconsistencies between the current manual-tachograph regulation and the proposed electronic-tachograph regulation. There have also been concerns about the published requirements for data downloading and the utility of the devices for roadside enforcement. See D. M. Freund, Working Paper, On-board automated recording for commercial motor vehicle drivers' hours-of-service compliance: the European experience , August 2001.

We request responses to the following questions concerning testing and certification procedures. We also welcome any other comments relevant to this issue.

(1) Who could perform certification tests? Should they be done by FMCSA, by another Federal agency, or by an independent third party according to procedures and documentation requirements set forth in regulation?

(2) Should FMCSA continue to allow manufacturers of these devices to self-certify them? Why, or why not?

(3) Should FMCSA develop a list of approved devices, similar to the Conforming Products List maintained by the National Highway Traffic Safety Administration?  7

(4) As noted above, FMCSA is aware of the European Union's detailed design specification that is part of Regulation 2135/98 for electronic tachographs. At this time, we believe the extraordinarily detailed database specification in the Appendix to Regulation 2135/98 would be too complex and costly, both for motor carriers and their EOBR suppliers to implement and for FMCSA to review. What are your views on this matter?

The current regulation (§ 395.15(i)(4)) requires the AOBRD to provide the driver with an audible and/or visible warning when it ceases to function. However, the types or degree of malfunction (such as loss of power source, loss of linkage to sensors, loss of ability to record, loss of ability to display) are not specified. While the requirement at § 395.15(i)(7) for the on-board recording device/system to identify “sensor failures and edited data when reproduced in printed form” [emphasis added] does address the question of data integrity, it nevertheless omits any requirement that such data be identified in an electronic record ( i.e. , one that is not printed).

We request responses to the following questions related to EOBR maintenance and repair:

(1) Is it feasible to design the EOBR to record the malfunction event (including its nature, date, and time) automatically “ that is, within the EOBR's memory?

(2) Are there circumstances that could prevent automatic capturing of this information? Please describe them. In such cases, should the driver record the malfunction event on a paper RODS?

(3) Section 395.15(i)(8) of the current regulations addresses maintenance and calibration of AOBRDs. It states that these devices “must be maintained and recalibrated in accordance with the manufacturer's specifications.” Is this requirement sufficient? Should the agency consider requiring that repair and recalibration be performed only by an approved source? Who should certify repair stations, and how could this be done?

(4) The current regulations do not address EOBR maintenance records. Motor carriers' CMV maintenance records must document installation, malfunction, failure, repair, and recalibration. Since the initial manufacturer places an identification and certification plate on the device, should installation, repair, and recalibration activities be documented by the approved source ( see question 3), the motor carrier, or both? Should entities authorized to perform repair and maintenance be required to comply with FMCSA requests for access to their facilities and to documents concerning their work performed for motor carrier clients?

(5) Although the current regulations do not address how long a CMV equipped with an EOBR could continue to be operated after the device failed, they do require drivers to reconstruct the RODS for the current day and the past 7 days (less any days for which drivers have records), and to continue to prepare a handwritten record of all subsequent duty status until the device is again operational (§ 395.15(f)). Should FMCSA require repair or replacement of an EOBR within a specific number of days?

(6) Manufacturers and suppliers : What types of periodic maintenance and calibration do AOBRDs and EOBRs require? How often do they require such maintenance, and what is the typical direct cost?

(7) Manufacturers and suppliers: What is the typical lifespan of an AOBRD? What is the typical lifespan of an EOBR? Is there any salvage value to either device?

Motor carriers and drivers expend a significant amount of time, effort, and money to complete, file, review, and store paper RODS. According to the most recent FMCSA estimate, it takes 6.5 minutes for a CMV driver to complete a RODS and an additional 3 minutes for a motor carrier to review it. Because more than 4.2 million CMV drivers must complete and file their RODS, drivers spend more than 110 million hours each year completing these records. Motor carriers must devote another 51 million hours annually to reviewing and storing the records. The agency estimates the cost of completing, filing, reviewing, and maintaining these records at $63.3 million annually.

Many commercially available on-board recorders and support systems offer drivers and motor carriers the opportunity to better plan their schedules and routes, monitor the performance of their vehicles, and use this information to improve safety and operational productivity.

However, many of these advanced systems may come with a high price tag, perhaps too high for most small motor carriers and independent drivers. For this reason, we are interested in exploring the development of a performance-based specification for a minimally compliant EOBR. A minimally compliant device would provide the electronic-data equivalent of an accurate RODS yet be more affordable for small motor carriers and independent drivers.

We request comments on the concept of such a performance specification.

FMCSA requests comments on the following possible definitions of terms, including proposed basic requirements:

(1) AOBRD means an automatic on-board recording device as defined in 49 CFR 395.2.

(2) EOBR means an electronic on-board recorder used to record a CMV driver's hours of service in order to provide documentation to determine compliance with 49 CFR Part 395. An EOBR has features providing additional functions beyond those of an AOBRD. It must provide a means to record and store the date and time of each data entry, the status of the engine (on/off), and the location of the CMV. The EOBR also must calculate and display the distance traveled and the road speed. Definitions of these data elements follow.

(3) Date and time: The date and time must be obtained via a signal that cannot be altered by a motor carrier or driver. The signal may be obtained from a source that is internal or external to the CMV.

(4) Engine on/off: The signal indicating whether the engine is on or off must be taken from the ECM on those engines so equipped. On vehicles not equipped with an ECM ( i.e. , those manufactured before the late 1980s), the signal must be taken from the tail shaft. The engine status must be monitored and recorded at intervals of 1 second or less, as well as when an engine on/off event occurs.

(5) Location: The physical location of a CMV. At a minimum, the location must be recorded at each change of duty status. The location description for the duty status change must be sufficiently precise to enable enforcement personnel to quickly determine the vehicle's geographic location on a standard map or road atlas. The location data must be entered by the driver or via signal(s) received from an independent source external to the vehicle. FMCSA seeks comment on how frequently such an external signal determines the vehicle location entry, and whether specific events such as ignition shutoff should automatically trigger a signal.

(6) Distance traveled: Miles traveled that day for each driver operating the CMV. The EOBR must derive the distance traveled from a source internal to the vehicle (for example, tail shaft data recorded on the ECM).

(7) Road speed: Must be derived using distance-traveled data from a source internal to the CMV (usually the ECM). The data must be monitored and recorded at intervals of 1 second or less. An AOBRD or EOBR is deemed to be integrally synchronized when it receives and records the engine and date/time information from a source or sources internal to the CMV.

Benefits. In general, motor carriers could be expected to derive both safety compliance and operational productivity benefits from EOBRs. Fundamentally, the use of EOBRs could improve hours-of-service compliance, potentially increasing highway safety. This could be accomplished in several ways. First, because these devices document driving hours more accurately and precisely than can paper RODS, they could help deter excessive hours behind the wheel. Second, EOBR data can be made more readily available to motor carriers to improve their efficiency of assigning drivers to particular runs, and to ensure those drivers' compliance throughout the trip. Third, the presence of EOBRs would serve as a tangible reminder to both motor carriers and drivers that compliance with the hours-of-service regulations is taken seriously. Last, increased use of the devices could set a positive example for the industry, and counteract the proclivity of some carriers to compete on the basis of noncompliance with the hours-of-service regulations.

Another potential benefit of EOBR use would be to improve motor carriers' operational productivity. Use of these devices, especially in conjunction with appropriate automated review and monitoring software, could provide for more accurate documentation of vehicle and driver operations in a form that is amenable to automated review. FMCSA estimates that these automatic on-board recording devices reduce substantially, by as much as 90 percent, the time involved in preparing, filing and storing paper. Additionally, on-board recording devices could be integrated with other operations or logistics management systems. They also may be installed as an accessory to some vehicle productivity and safety monitoring systems, as well as take advantage of interfaces with real-time communications systems.

Costs. On the other hand, there may be a number of concerns and potential limitations regarding the adaptability of state-of-the-art EOBRs to hours-of-service compliance assurance. Currently available devices cannot discriminate among the myriad activities that constitute on-duty-not-driving, nor can they differentiate on-duty-not-driving and off-duty activities.

Further, many motor carriers have expressed substantial concerns about costs and benefits of current on-board recorders. EOBRs can be costly both to purchase and to operate. Estimates of installed costs per unit range from $500, for hardware supplied to an original equipment manufacturer for installation in a new vehicle, to $3,000 for installation of a retrofit unit in an in-service CMV. The cost, particularly at the lower end of the scale, does not include back-office systems for data tracking, verification, and information management, or training for drivers and others.

In the 1990s, FHWA engaged the University of Michigan Transportation Research Institute to study the applicability of on-board recorders to motor carrier operations. Motor carrier fleet response rates for this study were very low, possibly because of early adverse industry commentary on the study. The study, completed in late 1998, found that: (1) Large fleets were far likelier to use on-board recorders, and (2) mandatory on-board recorder use was overwhelmingly viewed as requiring extremely high expenditures for minimal operational benefits. Significantly, FMCSA data indicate that 90 percent of motor carriers operate fewer than nine trucks or buses.

The degree of benefit provided by an EOBR depends upon whether and how it is used. Motor carriers will not benefit merely from installing an EOBR; they must use and act upon the EOBR data. If a motor carrier has not made the fundamental commitment to operate safely and fails to review and act upon the EOBR data, the potential safety influence of the device will be limited.

FMCSA requests responses to the following questions concerning benefits and costs:

(1) What have been the safety, operational, and compliance benefits experienced by motor carriers with actual use of AOBRDs or EOBRs?

(2) What have been the driver hours-of-service violation rates, out-of-service rates, and crash experience of motor carriers using AOBRDs or EOBRs?

(3) What cost savings have motor carriers using AOBRDs or EOBRs experienced as a result of paperwork reduction, reduced time in reviewing RODs, and other efficiencies?

(4) In general, how is training on EOBR use presented to drivers, dispatchers, and other motor carrier employees? How many hours of training are typically required for drivers? Please estimate the direct costs of this training. How many hours of training are typically required for dispatchers and other back-office staff? Please estimate the direct costs of this training.

(5) What would be the typical cost of a typical EOBR that is minimally compliant with the current regulations? Would there be differences in the cost for a device installed at the time of the vehicle's manufacture and the cost of an aftermarket product? Please describe.

(6) What do manufacturers of on-board computer and communications systems typically charge motor carriers to incorporate in their systems EOBR capabilities satisfying the requirements of § 395.15? Please also include estimates of the costs of back-office systems.

FMCSA believes EOBRs have the potential to improve motor carriers' compliance with the hours-of-service regulations, and to provide for more efficient, effective, and economical documentation and review of drivers' records of duty status. FMCSA requests comments on what other incentives could help to promote the use of EOBRs.

We also request responses to the following questions:

(1) Should FMCSA propose requiring that motor carriers in general, or only certain types of motor carrier operations, use EOBRs?

(2) How reliable are current-generation EOBRs?

(3) What is the minimum information FMCSA should require an automatic or electronic on-board recorder to capture automatically, without any input from the driver or external sources?

(4) What information should drivers be required to enter into the on-board recorder, and how could that information be verified?

(5) For EOBRs that receive location information or raw latitude and longitude information via electronic signals from GPS technologies or a similar system, what minimum level of accuracy should FMCSA require with regard to the likely distance between the indicated and actual location of the CMV?

(6) What types of technology should be used to verify, to the greatest extent practicable, the identity of the person who is operating the vehicle when the EOBR is recording the time as driving time?

(7) Should FMCSA require that if a memory storage device such as a smart card is used, the on-board system also must store information about the driver's identity and provide information concerning the times the storage device was entered and removed, what information was accessed, and by whom?

(8) Should the use of a particular file transfer protocol (XML or other) be considered for data capture? Should any such requirement specify use of an open-source protocol?

(9) What regulatory changes could FMCSA initiate to encourage greater usage of EOBRs in the trucking and motorcoach industries? For example, should we reduce our record retention requirement for motor carriers that use EOBRs?

(10) Manufacturers and suppliers: Approximately how many AOBRDs and EOBRs are currently in use? Describe the general characteristics of motor carriers (size, commodities transported, and geographical scope of operations) that use devices with limited functionality and of those using devices with comprehensive functionality.

(11) Manufacturers and suppliers: What types of data would it be inappropriate for an EOBR to record? That is, should any data be off-limits?

(12) Manufacturers and suppliers: When AOBRDs and EOBRs are manufactured or repaired, are solvents or other substances used that could have environmental or driver health consequences if they are not disposed of properly? Do the devices contain components or materials (including hazardous materials) that could generate adverse environmental or driver health consequences if not disposed of properly?

(13) How are EOBRs typically disposed of?

FMCSA believes that this rulemaking is a significant regulatory action within the meaning of E.O. 12866, and is significant within the meaning of the U.S. Department of Transportation's regulatory policies and procedures (DOT Order 2100.5, May 22, 1980; 44 FR 11034, February 26, 1979) because of significant public interest in issues related to motor carrier compliance with the Federal hours-of-service regulations. The Office of Management and Budget has reviewed this advance notice of proposed rulemaking under E.O. 12866. We would appreciate responses from the public to our questions on the potential costs and benefits of this rulemaking. This will help us better determine the level of significance of any subsequent rule regarding EOBR performance specifications and use.

To meet the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612), FMCSA will evaluate the effects of this rulemaking action on small entities and make a preliminary determination that a regulation arising from this proceeding would have a significant economic impact on a substantial number of small entities.

Although this document does not make any specific proposal, we believe it could lead to a proposed rule with a significant potential impact on small motor carriers. FMCSA requests small entities to comment on the questions asked in this advance notice (specifically, questions related to the costs and benefits of compliance) so that we may accurately determine the economic impacts any proposal would have on small entities. In addition, we request small entities to comment on other issues that are of particular concern to them, such as the timeframe for implementation. This will help us to minimize any such impacts.

FMCSA has analyzed this ANPRM in accordance with the principles and criteria in Executive Order 13132 (Federalism). We have determined that this ANPRM does not have a substantial direct effect on States, nor would it limit the policymaking discretion of the States. Nothing in this document preempts any State law or regulation. Should FMCSA decide to issue a notice of proposed rulemaking dealing with electronic on-board recorders, the agency would evaluate any federalism implications of the proposal.

Catalog of Federal Domestic Assistance Program Number 20.217, Motor Carrier Safety. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

Under the Office of Management and Budget (OMB) regulations, at 5 CFR part 1320, Controlling Paperwork Burdens on the Public (1995), FMCSA is required to estimate the burden that new regulations would impose in the course of generating, maintaining, retaining, disclosing, or providing information to or for the agency. We believe that rulemaking action in response to information submitted to the docket could effect changes that would substantially reduce the collection of information requirements that are currently approved.

On March 4, 2002, OMB approved the agency's request to renew or revise the information collection (IC) for the Driver's Record of Duty Status. This approval includes the driver's record of duty status under 49 CFR 395.8 and the time card alternative under 49 CFR 395.1(e). OMB assigned control number 2126-0001 to this information collection. FMCSA estimated the annual burden of this information collection to be 161,364,492 hours, at a cost to the public of $63.7 million.

In anticipation of a regulatory action making certain motor carriers of passengers subject to the requirements of part 395 (among other regulations), FMCSA submitted a request to OMB to revise this information collection. OMB approved this revision on December 20, 2002, with an expiration date of December 31, 2005. The revised estimated annual time burden was 162,200,492 hours, and the revised annual cost was estimated at $64 million. OMB approved FMCSA's most recent request to revise this information collection on April 29, 2003, and it will expire on April 30, 2006. The latest revised estimated annual time burden is 160,376,492 hours, with an estimated annual cost of $63.3 million. This revision was due to the agency's implementation of a final rule, entitled “Hours of Service of Drivers: Driver Rest and Sleep for Safe Operations,” that resulted in an estimated 48,000 fewer drivers being subject to the drivers' requirements covered by this information collection. In addition, the title of this IC has been changed from Driver's Record of Duty Status to Hours-of-Service of Drivers Regulations. This change was proposed in the NPRM, and no comments regarding the name change were received.

If this advance notice of proposed rulemaking leads to a rule that increases motor carriers' use of EOBRs, the annual time burden should decrease because the time required to create each record is considerably lower for electronic records than for paper records.

OMB Control Number: 2126-0001.

Title: [Old]: Driver's Record of Duty Status (RODS). [New]: Hours-of-Service of Drivers Regulations.

As indicated earlier in the “Legal Basis” section, both the Motor Carrier Act of 1935 and the Motor Carrier Safety Act of 1984 allow the Secretary of Transportation (Secretary) to promulgate regulations that establish maximum hours of service of drivers employed by motor carriers. The Secretary has adopted regulations that require information to be recorded in a specified manner. FMCSA regulations allow motor carriers to make electronic records produced through the use of automatic on-board recording devices, in lieu of keeping paper records. FMCSA estimates that these automatic on-board recording devices reduce substantially, by as much as 90 percent, the time involved in preparing, filing and storing paper. FMCSA believes that the use of automatic on-board recorders continues to be uncommon and is unlikely to grow significantly under the current regulations.

The RODS must be maintained with all supporting documents for a period of 6 months from the date of the record. FMCSA believes the recordkeeping requirements are necessary for motor carriers and drivers to properly monitor compliance with the hours-of-service regulations. They also are necessary for Federal, State and local officials who are charged with monitoring and enforcing hours-of-service regulations. The hours-of-service regulations were promulgated to promote the safe operation of CMVs, and we believe this recordkeeping requirement is not duplicative of information that would otherwise be reasonably accessible to FMCSA.

FMCSA estimates there are 6,410,430 commercial motor vehicle drivers who are subject to the hours-of-service regulations. However, not all of these drivers are necessarily subject to the RODS paperwork requirement. For instance, FMCSA estimates that 25 percent of Local Delivery drivers are eligible to use the 100-air-mile-radius exception in § 395.1(e) in lieu of preparing paper RODS as required under § 395.8. This group of drivers is unlikely to use EOBRs since their recordkeeping requirements can be met with time cards. Therefore, we assume here that the remaining 75 percent of Local Delivery drivers who are subject to the hours-of-service regulations would be potential users of automated on-board recorders. Below is a breakdown of the total number of CMV drivers subject to the hours-of-service regulations and, for the purposes of this ANPRM, the estimated percentage of drivers within each category who would be potential users of automated on-board recorders:

Long-Haul Drivers: 366,304 (100 percent are assumed to be potential EOBR users).

Regional Drivers: 834,363 (100 percent are assumed to be potential EOBR users).

Local Delivery Drivers: 3,997,023 (75 percent, or 2,997,767, are assumed to be potential EOBR users).

Local, Services Drivers: 1,190,740 (zero percent are assumed to be potential EOBR users).

Long-Haul Commercial Van Drivers: 22,000 (100 percent are assumed to be potential EOBR users).

Multiplying the above estimates of drivers in each group by the estimated percentages constituting potential EOBR users yields a total of 4,220,434 CMV drivers. This is FMCSA's estimate of the number of CMV drivers subject to the RODS paperwork requirement and, for the purposes of this ANPRM, the number we assume would be potential EOBR users. (More information on the above driver estimates is available at 67 FR 1396 (Jan. 10, 2002) under Docket number FMCSA-2001-9688.) FMCSA welcomes comments and alternative estimates regarding the number of applicable CMV drivers discussed above.

Recordkeepers/Respondents: Approximately 4,220,434 CMV drivers.

Average Burden per Response: 6.5 minutes for drivers to prepare the daily record of duty status; 3 minutes for motor carriers to review and file records of duty status and all supporting documents.

Estimated Total Annual Burden: The estimated total annual burden is 160,376,492 hours.

Collection of Information Frequency: RODS: Every day of the year. Two or more days off duty may be kept on one record. Supporting documents: Collection must occur during every workday.

Estimated Annual Hour Burden for the Information Collection: Interested parties are invited to send comments regarding any aspect of these information collection requirements, including but not limited to (1) Whether the collection of information is necessary for the performance of FMCSA functions, including whether the information has practical utility; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the collected information; and (4) ways to minimize the collection burden without reducing the quality of the information collected.

If you submit comments to the Office of Management and Budget concerning the information collection requirements of this document, your comments will be most useful if received at OMB by November 30, 2004. You must mail, hand deliver, or fax your comments to: Attention: Desk Officer for the Department of Transportation, Docket Library, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10102, 725 17th Street, NW., Washington, DC 20503; fax: (202) 395-6566.

The National Environmental Policy Act of 1969 (NEPA), (42 U.S.C. 4321 et seq. , as amended) requires Federal agencies to consider the consequences of, and prepare a detailed statement on, all major Federal actions significantly affecting the quality of the human environment. Accordingly, FMCSA has prepared a Preliminary Environmental Assessment (PEA) for this advance notice of proposed rulemaking. The PEA is available in the docket. We invite all interested parties to submit public comments on this PEA.

The Magnuson-Stevens Act requires that each regional fishery management council submit any FMP amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP amendment, immediately publish a notice in the Federal Register announcing that the amendment is available for public review and comment.

In January 2004, the U.S. Congress amended section 313 of the Magnuson-Stevens Act through the Consolidated Appropriations Act of 2004 (Pub. L. No. 108-199, section 801), by adding paragraph (j). As amended, section 313(j)(1) requires the Secretary to approve, by January 1, 2005, the Voluntary Three-Pie Cooperative Program (Program), as it was approved by the Council between June 2002 and April 2003, and all trailing amendments, including those reported to Congress on May 6, 2003. The Program allocates BSAI crab resources among harvesters, processors, and coastal community interests. The Program, as it will be implemented by Amendments 18 and 19 to the FMP, is described below.

The Council developed the Program over a 6-year period to fit the specific dynamics and needs of the BSAI crab fisheries. The Program is a limited access system that balances the interests of several groups that depend on these fisheries. The Program will address conservation and management issues associated with the current derby fishery and will reduce bycatch and associated discard mortality. The Program is also designed to improve the safety of crab fishermen by ending the race for fish. Share allocations to harvesters and processors, together with incentives to participate in fishery cooperatives, are intended to increase efficiencies, provide economic stability, and facilitate compensated reduction of excess capacities in the harvesting and processing sectors. Community interests are protected by Community Development Quota (CDQ) allocations and regional landing and processing requirements, as well as by several community protection measures.

The Program encompasses the following BSAI crab fisheries: Bristol Bay red king crab ( Paralithodes camtschaticus ), Western Aleutian Islands (Adak) golden king crab ( Lithodes aequispinus ) - West of 174° W., Eastern Aleutian Islands (Dutch Harbor) golden king crab - East of 174° W., Western Aleutian Islands (Adak) red king crab - West of 179° W., Pribilof Islands blue king crab ( P. platypus ) and red king crab, St. Matthew Island blue king crab, Bering Sea snow crab ( Chionoecetes opilio ), and Bering Sea Tanner crab ( C. bairdi ). In this document, the phrase “crab fisheries” refers to these fisheries, unless otherwise specified.

Qualified harvesters would be allocated quota share (QS) in each crab fishery. To receive a QS allocation, a harvester must hold a valid, permanent, fully transferable license limitation program (LLP) license endorsed for that crab fishery. Quota share represents an exclusive but revokable privilege that provides the QS holder with an annual allocation to harvest a specific percentage of the total allowable catch (TAC) from a fishery. The annual allocations of TACs, in pounds, are referred to as individual fishing quotas (IFQs). Using LLP licenses for defining eligibility in the Program would maintain current fishery participation. A harvester's allocation of QS for a fishery would be based on the landings made by his or her vessel in that fishery. Specifically, each allocation is the harvester's average annual portion of the total qualified catch during a specific qualifying period. Qualifying periods were selected to balance historical and recent participation. Different periods were selected for different fisheries to accommodate closures and other circumstances in the fisheries in recent years.

Quota share would be designated as either catcher vessel (CV) shares or catcher/processor (C/P) shares, depending on whether the vessel processed the qualifying harvests on board. In addition, catcher vessel QS would be designated by landing region. Catcher vessel IFQ would be issued in two classes. Crabs harvested with class A IFQ would require delivery to a processor holding unused processing quota. Class A IFQ harvests also would be subject to a regional delivery requirement. Under this regional requirement, harvests would be delivered either in a North or in a South region (in most fisheries). Crabs harvested with class B IFQ could be delivered to any processor (except C/Ps operating as C/Ps) and would not be regionally designated. Harvests in excess of IFQ would be forfeited in all cases. Class B IFQs are intended to provide ex-vessel price negotiating leverage to harvesters. For each region of each fishery, the allocation of Class B IFQ would be 10 percent of the total allocation of IFQ to the CV sector.

Transfer of quota share and IFQ , either by sale or lease, would be allowed, subject to limits including caps on the amount of shares a person may hold or use. Leasing would mean the use of IFQs on a vessel in which the holder of the underlying QS holds less than a 10 percent ownership interest or on which the underlying QS holder is not present. To be eligible to receive transferred QS or IFQ, a person would be required to be a U.S. citizen with at least 150 days of sea time in any U.S. commercial fishery. A corporate entity would be eligible to receive transferred QS or IFQ only if it were at least 20 percent owned by a U.S. citizen with at least 150 days of sea time in any U.S. commercial fishery. Initial recipients of QS, CDQ groups, and community entities would be exempt from these transfer eligibility criteria.

Separate caps would be imposed to limit the amount of QS and IFQs a person could hold and to limit the use of IFQs onboard a vessel. These caps are intended to prevent negative impacts from what can be described as excessive consolidation of shares. Excessive share holdings are prohibited by the Magnuson-Stevens Act. Different caps are chosen for the different fisheries because fleet characteristics and dependence differ across fisheries. Separate caps on QS holdings are established for CDQ groups, which represent rural western Alaska communities. Processor holdings of harvest shares would also be limited by caps on vertical integration. Quota share holders could retain and use initial allocations of QS above the caps.

To protect their interests in the fisheries, qualifying captains would be allocated 3 percent of the qualifying catch history as C shares. These shares are intended to provide long term benefits to captains and crew. The allocation to captains would be based on the same qualifying years and computational method used for quota share allocations to LLP holders. To ensure that C shares benefit at-sea participants in the fisheries, the IFQ derived from C shares could be used only when the C share holder is on board the vessel.

To be eligible to receive an allocation, an individual would be required to have historic and recent participation. Historic participation would be demonstrated by at least one landing in each of three of the qualifying years. Recent participation would be demonstrated by at least one landing in two of the three most recent seasons before June 10, 2002, except for the fisheries that were closed in this period. For these fisheries (Adak red king crab, the Pribilof Islands red and blue king crab, the St. Matthew Island blue king crab, and the Tanner crab fisheries), recent participation would be demonstrated by at least one landing in two of the three most recent seasons preceding June 10, 2002, in the snow crab, Bristol Bay red king crab, or one of the Aleutian Islands golden king crab fisheries. The recent participation requirement would be waived for captains who died in fishing-related incidents if the captain's estate applies for QS.

C shares would be required to be delivered to shore-based or floating processors for processing. During the first 3 years a fishery is open after implementation, C shares would not be subject to specific delivery requirements. After 3 years, C shares would be subject to the Class A IFQ/Class B IFQ distinction with commensurate regional delivery requirements unless the Council determines, after review, not to apply those designations.

To be eligible to receive transferred C shares, a person would be required to be a U.S. citizen with at least 150 days sea time in a U.S. commercial fishery in a harvest capacity. In addition, the person would be required to be an “active participant” in the BSAI crab fisheries, demonstrated by a landing in a crab fishery during the 365 days before the transfer application. Evidence of participation could be either a State of Alaska fish ticket, an affidavit from the vessel owner, or other verifiable evidence.

Leasing of C shares in each fishery would be permitted in the first three seasons a fishery is prosecuted after implementation of the Program. After the first three seasons the fishery is prosecuted, leasing would be permitted only in the case of a documented hardship (such as a medical hardship or loss of vessel) for the term of the hardship, subject to a maximum of 2 years over a 10-year period.

Individual C share use and holdings would be capped at the same level as the vessel use caps applicable to QS. Initial allocations of C shares in excess of the cap could be retained. C shares would not be considered in determining a vessel's compliance with the vessel use caps on QS. Landings with C shares would be subject to the IFQ fee program.

C/P captains would be allocated C/P C shares that include a harvesting and on-board processing privilege. Harvests with C/P C shares also could be delivered to shore-based or floating processors.

A processing privilege, analogous to the harvesting privilege allocated to harvesters, would be allocated to processors. Qualified processors would be allocated processor quota share (PQS) in each crab fishery. PQS represent an exclusive but revocable privilege to receive deliveries of a specific portion of the annual TAC from a fishery. An annual allocation of PQS is referred to as IPQ and expressed in pounds of crab. IPQs would be issued for 90 percent of the allocated harvests, corresponding to the 90-percent allocation of Class A IFQ. Processor privileges would not apply to the remaining 10 percent of the TAC allocated as Class B IFQ. IPQs would be regionally designated for processing in a North or a South region (corresponding to the regional designation of the Class A IFQ).

PQS allocations would be based on processing history during a specified qualifying period for each fishery. A processor's allocation in a fishery would equal its share of all qualified pounds of crab processed in the qualifying period (i.e., pounds processed by the processor divided by pounds processed by all qualified processors). Processor shares would be transferable, including the leasing of IPQs and the sale of PQS, subject to caps and to community protection measures. IPQs could be used without transfer at any facility or plant operated by a processor. New processors could enter the fishery by purchasing PQS or IPQ or by purchasing crab harvested with Class B IFQ or crab harvested by CDQ groups.

Processors would be limited to holding 30 percent of the PQS issued for a fishery, except that initial allocations of shares above this limit could be retained and used. In addition, in the snow crab fishery, no processor would be permitted to use or hold in excess of 60 percent of the IPQs issued for the Northern region.

C/Ps have a unique position in the Program because they participate in both the harvest and processing sectors. Persons who caught and processed crab on the same vessel would be allocated C/P QS. These shares would represent a harvest privilege and an on-board processing privilege. To be eligible for C/P shares, a person would be required to hold a permanent fully transferable C/P LLP license. In addition, a person must have processed crab on board the C/P in either 1998 or 1999. Persons meeting these qualification requirements would be allocated C/P QS in accordance with the allocation rules for harvest shares for all qualified catch that was processed on board. Catcher/Processor QS would not have regional designations.