Federal Register Vol. 80, No.111,

The Agricultural Marketing Service (AMS) administers the Shell Egg Surveillance Program, a mandatory inspection program for shell eggs under the Egg Products Inspection Act (EPIA) (21 U.S.C. 1031 et seq.). This inspection program ensures that shell eggs sold to consumers contain no more restricted eggs than are permitted in the standards for consumer grades. Restricted eggs may contain dirty or cracked shells, eggs leaking internal contents, and eggs with meat or blood spots in the interior. Regulations governing the EPIA are contained in 7 CFR part 57.

On February 19, 2014, the President signed Executive Order 13659 (EO), streamlining the export/import process for America's businesses. EO 13659 outlines the use of the International Trade Data System (ITDS) to modernize and simplify the import and export of cargo. ITDS will allow traders to make a single electronic report and the relevant data will be distributed to the appropriate agencies. Costs will be reduced for business and government. An agency will obtain data more quickly through electronic filings. Automated processing will enhance an agency's ability to process cargo more expeditiously and to identify unsafe, dangerous, or prohibited shipments. This information will be assessed electronically by the relevant government agency resulting in border related decisions which will be electronically sent back to the trade. AMS will incorporate electronic filing of import requests for shell eggs to comply with EO 13659.

AMS has participated in the development of the ITDS, a government-wide project to build an electronic “single-window” for collecting and sharing trade data for reporting imports and exports among Federal agencies. The goal of the ITDS is to eliminate the redundant reporting of data, replacing multiple filings, many of which are on paper, with a single electronic filing. The U.S. Customs and Border Protection (CBP) has developed the Automated Commercial Environment (ACE), a U.S. commercial trade processing system that automates border processing of products. The ACE system connects the trade community and participating government agencies by providing a single, centralized, online access point. When applicants file entries with the CBP through ACE, relevant data is electronically distributed to appropriate government agencies. AMS considers any electronic data entered in ACE as certified by the applicant. In addition, AMS considers any electronic records, digital images, data, or information from a foreign government for foreign inspection and foreign establishment certification to be equivalent to paper records and certified by the foreign government. When developing, procuring, maintaining, or using electronic information technology (EIT), Federal agencies are required by Section 508(a) (1) (a) of the Rehabilitation Act of 1973 (29 U.S.C. 794d) to ensure that EIT is accessible to people with disabilities, including employees and members of the public. The ACE interface meets these requirements.

Therefore, for the reasons specified above, we are proposing to amend the shell egg import regulations to include that applicants may submit LPS Form 222-Import Request electronically.

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with the Regulatory Flexibility Act, 5 U.S.C. 603 we have performed an initial regulatory flexibility analysis regarding economic effects of this proposed rule on small entities. Copies of the analysis are available by contacting the person listed under FOR FURTHER INFORMATION CONTACT or on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov).

Based on the information we have, the AMS Administrator has made a preliminary determination that, this proposed rule would not have a significant impact on a substantial number of small entities.

This proposal has been reviewed under executive order 12988, Civil Justice Reform. If adopted, this rule: would have no retroactive effects: and would not require administrative proceedings before parties may file suit in court challenging this rule. Pursuant to section 23 of the EPIA (21 U.S.C. 1052), states or local jurisdictions are preempted from requiring the use of standards of quality, condition, weight, quantity, or grade which are in addition to or different from Federal standards for any eggs which have moved or are moving in interstate or foreign commerce.

This proposed rule has been reviewed in accordance with the requirements of Executive Order 13175. Consultation and coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35.) the Office of Management and Budget (OMB) has approved the information collection and recordkeeping requirements included in this proposed rule, and there are no new requirements. Should any changes become necessary they would be submitted to OMB for approval. The assigned OMB control number is 0581-0113.

AMS is committed to compliance with the Government Paperwork Elimination Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

AMS is committed to complying with the E-Government Act to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

For the reasons set forth in this Proposed Rule, it is proposed that 7 CFR part 57 be amended as follows:

In the Federal Register of March 27, 2015, FDA published a notice of public hearing with a 60-day comment period following the public hearing and requested comments on a number of specific questions identified throughout the document. Comments on the notice of public hearing will inform FDA's decision about whether and how to adjust the current enforcement policies for drug products labeled as homeopathic to reflect changes in the homeopathic product marketplace over the last approximately 25 years.

FDA is extending the comment period for an additional 60 days, until August 21, 2015. The Agency believes that an additional 60-day extension of the comment period for the notice of public hearing will allow adequate time for interested persons to submit comments without significantly delaying Agency decision making on these important issues.

Interested persons may submit either electronic comments regarding this document to http://www.regulations.gov or written comments to the Division of Dockets Management (see ADDRESSES). You should annotate and organize your comments to identify the specific questions or topic to which they refer. It is only necessary to send one set of comments. Identify comments with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at http://www.regulations.gov.

Why is the Department promulgating this rulemaking?

This proposed rule amends procedural aspects of the Intercountry Adoption Accreditation Regulations concerning the length of accreditation or approval found in 22 CFR part 96. Subpart G governs decisions on applications for accreditation and approval. Section 96.60 provides for accreditation or approval for a period of four years. Section 96.60 does not currently provide the opportunity to stagger the renewal applications, which results in many renewal applications coming due at the same time.

This proposed rule will aid the accrediting entity in managing its workload. In particular, the amendments to this section will allow for a one-year extension of previously-granted accreditation or approval, not to exceed five years total, based on criteria included in the rule, and summarized here.

There will be criteria for selecting which agencies or persons are eligible for the one-year extension. As a threshold matter, only agencies and persons that have no pending adoption-related complaint investigations or adverse actions will be eligible for an extension under this procedure. Also, those entities that have undergone a change in corporate or internal structure (such as a merger or a leadership change in chief executive or chief financial officer) since their initial accreditation/approval or last renewal will not qualify for an extension under this procedure. If the agency or person meets the threshold criteria, in order to ensure that the extension achieves its purpose of staggering renewals thereafter, the Secretary, in his discretion may consider additional factors including, but not limited to, the agency's or person's volume of intercountry adoption cases in the year preceding the application for renewal or extension, the agency's or person's U.S. state licensure record, and the number of extensions available.

Since the President signed into law the Universal Accreditation Act of 2012, approximately 40 new agencies received accreditation, all in the same year. The resulting surge in the number of agencies requiring review in certain years argued strongly for establishing a mechanism that would allow COA to better manage the distribution of renewals. The procedure outlined in this rulemaking will allow a more even distribution of the number of renewals an accrediting entity must review in a given year.

The Department invites comment on the procedures described above.

The Department is publishing this notice of proposed rulemaking with a 30-day period for public comments.

Consistent with section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Department certifies that this proposed rule does not have a significant economic impact on a substantial number of small entities. For the small business entities affected by the amendments, the cost is neutral because it does not change the cost per year of accreditation or renewal, but in only potentially the year in which renewal takes place.

Section 202 of the Unfunded Mandates Reform Act of 1995, (codified at 2 U.S.C. 1532) does not apply to this rulemaking.

This proposed rule is not a major rule as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121).

The Department of State has reviewed this proposed rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866 and has determined that the benefits of this final regulation justify its costs. The Department does not consider this rulemaking to be an economically significant action under the Executive Order. The proposed rule will not add any new legal requirements to Part 96; it merely adds administrative flexibility to the work of the Department-designated accrediting entity.

This proposed rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor will it have federalism implications warranting the application of Executive Orders 12372 and No. 13132.

The Department has reviewed the proposed rule in light of Executive Order No. 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

The Department has considered this proposed rule in light of Executive Order 13563, dated January 18, 2011, and affirms that it is consistent with the guidance therein.

This proposed rule does not impose information collection requirements subject to the provisions of the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

For the reasons stated in the preamble, the Department of State proposes to amend 22 CFR part 96 as follows:

Throughout this document wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA. Information is organized as follows:

On September 21, 2006, the EPA promulgated a final rule revising the 1997 24-hour primary and secondary NAAQS for PM2.5 from 65 micrograms per cubic meter (µg/m3) to 35 µg/m3 (October 17, 2006, 71 FR 61144). Section 110(a)(1) of the CAA requires each state to submit to the EPA, within three years (or such shorter period as the Administrator may prescribe) after the promulgation of a primary or secondary NAAQS or any revision thereof, a SIP that provides for the “implementation, maintenance, and enforcement” of such NAAQS. The EPA refers to these specific submittals as “infrastructure” SIPs because they are intended to address basic structural SIP requirements for new or revised NAAQS. For the 2006 24-hour PM2.5 NAAQS, these infrastructure SIPs were due on September 21, 2009. CAA section 110(a)(2) includes a list of specific elements that “[e]ach such plan submission” must meet.

The interstate transport provisions in CAA section 110(a)(2)(D)(i) (also called “good neighbor” provisions) require each state to submit a SIP that prohibits emissions that will have certain adverse air quality effects in other states. CAA section 110(a)(2)(D)(i) identifies four distinct elements related to the impacts of air pollutants transported across state lines. In this action, the EPA is addressing the first two elements of this section, specified at CAA section 110(a)(2)(D)(i)(I),1 for the 2006 24-hour PM2.5 NAAQS.

The first element of CAA section 110(a)(2)(D)(i)(I) requires that each SIP for a new or revised NAAQS contain adequate provisions to prohibit any source or other type of emissions activity within the state from emitting air pollutants that will “contribute significantly to nonattainment” of the NAAQS in another state. The second element of CAA section 110(a)(2)(D)(i)(I) requires that each SIP contain adequate provisions to prohibit any source or other type of emissions activity in the state from emitting air pollutants that will “interfere with maintenance” of the applicable NAAQS in any other state.

The EPA has addressed the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) in past regulatory actions.2 The EPA promulgated the final Cross-State Air Pollution Rule (Transport Rule) to address CAA section 110(a)(2)(D)(i)(I) in the eastern portion of the United States with respect to the 2006 PM2.5 NAAQS, the 1997 PM2.5 NAAQS, and the 1997 8-hour ozone NAAQS (August 8, 2011, 76 FR 48208). The Transport Rule was intended to replace the earlier Clean Air Interstate Rule (CAIR) which was judicially remanded.3 See North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008). On August 21, 2012, the U.S. Court of Appeals for the DC Circuit issued a decision vacating the Transport Rule. See EME Homer City Generation, L.P. v. E.P.A., 696 F.3d 7 (D.C. Cir. 2012). The Court also ordered the EPA to continue implementing CAIR in the interim. However, on April 29, 2014, the U.S. Supreme Court reversed and remanded the DC Circuit's ruling and upheld the EPA's approach in the Transport Rule for the issues that were in front of the Supreme Court for review.4 On October 23, 2014, the DC Circuit lifted the stay on the Transport Rule.5 While our evaluation is consistent with the Transport Rule approach, the State of Washington was not covered by either CAIR or the Transport Rule, and the EPA made no determinations in either rule regarding whether emissions from sources in Washington significantly contribute to nonattainment or interfere with maintenance of the 2006 24-hour PM2.5 NAAQS in another state, nor did it attempt to quantify Washington's obligation.6

On September 25, 2009, the EPA issued a guidance memorandum that addressed the requirements of CAA section 110(a)(2)(D)(i) for the 2006 24-hour PM2.5 NAAQS (“2006 24-hour PM2.5 NAAQS Infrastructure Guidance” or “Guidance”).7 With respect to the requirement in CAA section 110(a)(2)(D)(i)(I) that state SIPs contain adequate provisions prohibiting emissions that would contribute significantly to nonattainment of the NAAQS in any other state, the 2006 24-hour PM2.5 NAAQS Infrastructure Guidance essentially reiterated the recommendations for western states made by the EPA in previous guidance addressing the CAA section 110(a)(2)(D)(i) requirements for the 1997 8-hour ozone and 1997 PM2.5 NAAQS.8 The 2006 24-hour PM2.5 NAAQS Infrastructure Guidance advised states outside of the CAIR region to include in their CAA section 110(a)(2)(D)(i)(I) SIPs adequate technical analyses to support their conclusions regarding interstate pollution transport, e.g., information concerning emissions in the state, meteorological conditions in the state and in potentially impacted states, monitored ambient pollutant concentrations in the state and in potentially impacted states, distances to the nearest areas not attaining the NAAQS in other states, and air quality modeling.9 With respect to the requirement in CAA section 110(a)(2)(D)(i)(I) that state SIPs contain adequate provisions prohibiting emissions that would interfere with maintenance of the NAAQS by any other state, the Guidance stated that SIP submissions must address this independent requirement of the statute and provide technical information appropriate to support the state's conclusions, such as information concerning emissions in the state, meteorological conditions in the state and in potentially impacted states, monitored ambient concentrations in the state and in potentially impacted states, and air quality modeling. See footnotes 5 and 6.

In this action, the EPA is proposing to use the conceptual approach to evaluating interstate pollution transport under CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS with respect to Washington that the EPA explained in the 2006 24-hour PM2.5 NAAQS Infrastructure Guidance. The EPA believes that the CAA section 110(a)(2)(D)(i)(I) SIP submission from Washington for the 2006 24-hour PM2.5 NAAQS may be evaluated using a “weight of the evidence” approach that takes into account available relevant information. Such information may include, but is not limited to, the amount of emissions in the state relevant to the 2006 24-hour PM2.5 NAAQS, the meteorological conditions in the area, the distance from the state to the nearest monitors in other states that are appropriate receptors, or such other information as may be probative to consider whether sources in the state may contribute significantly to nonattainment or interfere with maintenance of the 2006 24-hour PM2.5 NAAQS in other states. These submissions may rely on modeling when acceptable modeling technical analyses are available, but if not available, other available information can be sufficient to evaluate the presence or degree of interstate transport in a specific situation for the 2006 24-hour PM2.5 NAAQS. For further explanation of this approach, see the technical support document (TSD) in the docket for this action.

CAA sections 110(a)(1) and (2) and section 110(l) require that revisions to a SIP be adopted by the state after reasonable notice and public hearing. The EPA has promulgated specific procedural requirements for SIP revisions in 40 CFR part 51, subpart F. These requirements include publication of notices, by prominent advertisement in the relevant geographic area, a public comment period of at least 30 days, and an opportunity for a public hearing.

On May 11, 2015, Washington submitted a SIP to address the interstate transport requirements of CAA section 110(a)(2)(D)(i) for the 2006 PM2.5 NAAQS (Washington 2006 PM2.5 Interstate Transport submittal).10 The Washington 2006 PM2.5 Interstate Transport submittal included documentation of a public comment period from March 9, 2015 through April 10, 2015, and opportunity for public hearing. We find that the process followed by Washington in adopting the SIP submittal complies with the procedural requirements for SIP revisions under CAA section 110 and the EPA's implementing regulations.

With respect to the requirement in CAA section 110(a)(2)(D)(i)(I), the Washington 2006 PM2.5 Interstate Transport submittal referred to the applicable rules in the Washington SIP, meteorological and other characteristics of areas with nonattainment problems for the 2006 24-hour PM2.5 NAAQS in surrounding states, and Interagency Monitoring of Protected Visual Environments (IMPROVE) data from the regional haze program that provides additional information on how Washington sources influence monitored PM2.5 levels in National Parks and wilderness areas surrounding Washington to assess potential interstate transport. The Washington submittal concluded that, based on the weight of the evidence, the Washington SIP adequately addresses the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS. A detailed discussion of the Washington 2006 PM2.5 Interstate Transport submittal can be found in the technical support document (TSD) in the docket for this action.

To determine whether the CAA section 110(a)(2)(D)(i)(I) requirements are satisfied, the EPA must determine whether a state's emissions will contribute significantly to nonattainment or interfere with maintenance in other states. If this factual finding is in the negative, then CAA section 110(a)(2)(D)(i)(I) does not require any changes to a state's SIP. Consistent with the EPA's approach in the 1998 NOX SIP call, the 2005 CAIR, and the 2011 Transport Rule, the EPA is evaluating these impacts with respect to specific monitors identified as having nonattainment and/or maintenance problems, which we refer to as “receptors.” See footnote 2.

With respect to this proposed action, the EPA notes that no single piece of information is by itself dispositive of the issue. Instead, the total weight of all the evidence taken together is used to evaluate significant contributions to nonattainment or interference with maintenance of the 2006 24-hour PM2.5 NAAQS in another state. Our proposed action takes into account the Washington 2006 PM2.5 Interstate Transport submittal, a supplemental evaluation of monitors in other states that are appropriate “nonattainment receptors” or “maintenance receptors,” and a review of monitoring data considered representative of background. Based on the analysis in our TSD in the docket for this action, we believe that it is reasonable to conclude that emissions from sources in Washington do not significantly contribute to nonattainment or interfere with maintenance of the 2006 24-hour PM2.5 NAAQS in any other state.

The EPA evaluated data from existing monitors over three overlapping three-year periods (i.e., 2009-2011, 2010-2012, and 2011-2013) to determine which areas were violating the 2006 24-hour PM2.5 NAAQS and which areas might have difficulty maintaining the standard. If a monitoring site measured a violation of the 2006 24-hour PM2.5 NAAQS during the most recent three-year period (2011-2013), then this monitor location was evaluated for purposes of the significant contribution to nonattainment element of CAA section 110(a)(2)(D)(i)(I). If, on the other hand, a monitoring site showed attainment of the 2006 24-hour PM2.5 NAAQS during the most recent three-year period (2011-2013) but a violation in at least one of the previous two three-year periods (2009-2011 or 2010-2012), then this monitor location was evaluated for purposes of the interference with maintenance element of the statute.

The State of Washington was not covered by the modeling analyses available for the CAIR and the Transport Rule. The approach described above is similar to the approach utilized by the EPA in promulgating the CAIR and the Transport Rule. By this method, the EPA has identified those areas with monitors to be considered “nonattainment receptors” or “maintenance receptors” for evaluating whether the emissions from sources in another state could significantly contribute to nonattainment in, or interfere with maintenance in, that particular area.

The EPA reviewed the Washington 2006 PM2.5 Interstate Transport submittal and additional technical information to evaluate the potential for emissions from sources in Washington to contribute significantly to nonattainment of the 2006 24-hour PM2.5 NAAQS at specified monitoring sites in the western United States.11 The EPA first identified as “nonattainment receptors” all monitoring sites in the western states that had recorded PM2.5 design values above the level of the 2006 24-hour PM2.5 NAAQS (35 μg/m3) during the years 2011-2013.12 Please see the TSD in the docket for a more detailed description of the EPA's methodology for selection of nonattainment receptors. All of the nonattainment receptors we identified in western states are in California, Idaho, Montana, Oregon, and Utah.13

Based on the analysis in our TSD, we believe it is reasonable to conclude that emissions from sources in Washington do not significantly contribute to nonattainment of the 2006 24-hour PM2.5 NAAQS in any other western state. We also evaluated nonattainment receptors in eastern states, as detailed in the TSD, and we believe it is reasonable to conclude that emissions from sources in Washington do not significantly contribute to nonattainment of the 2006 24-hour PM2.5 NAAQS in any eastern state. Based on the analysis in our TSD, we are proposing to determine that Washington's SIP adequately addresses the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS.

The EPA reviewed the Washington 2006 PM2.5 Interstate Transport SIP and additional technical information to evaluate the potential for Washington emissions to interfere with maintenance of the 2006 24-hour PM2.5 NAAQS at specified monitoring sites in the western United States. The EPA first identified as “maintenance receptors” all monitoring sites in the western states that had recorded PM2.5 design values above the level of the 2006 24-hour PM2.5 NAAQS (35 μg/m3) during the 2009-2011 and/or 2010-2012 periods but below this standard during the 2011-2013 period. Please see our TSD for more information regarding the EPA's methodology for selection of maintenance receptors. All of the maintenance receptors we identified in western states are located in California, Montana, and Utah.

As detailed in the TSD, we believe it is reasonable to conclude that emissions from sources in Washington do not interfere with maintenance of the 2006 24-hour PM2.5 NAAQS in these states. We also evaluated maintenance receptors in eastern states, as detailed in the TSD, and we believe it is reasonable to conclude that emissions from sources in Washington do not interfere with maintenance of the 2006 24-hour PM2.5 NAAQS in any eastern state.

The EPA is proposing to find that Washington has adequately addressed the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because it does not involve technical standards; and

• does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The SIP is not approved to apply on any Indian reservation land in Washington except for as specifically noted below and is also not approved to apply in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Washington's SIP is approved to apply on non-trust land within the exterior boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and local agencies in Washington authority over activities on non-trust lands within the 1873 Survey Area.

Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following:

EPA is proposing to approve the Kansas Department of Health and Environment's (KDHE) determination that the existing Kansas RH SIP is adequate to achive the established Reasonable Progress Goals (RPGs) for Class I areas affected by Kansas sources, and therefore requires no substantive revision at this time. EPA's proposed approval is based on the Kansas State Implementation Plan Revision for the Attainment and Maintenance of NAAQS for Regional Haze (2014 Progress Report) (“Progress Report or “Report”) submitted by KDHE to EPA on March 10, 2015, that addresses 51.308(g) and (h) of the RHR. The Progress Report demonstrates that the emission control measures in the existing RH SIP are sufficient to enable other states with Class I areas affected by emissions from sources in Kansas to meet all established RPGs for 2018. We are also proposing to find that Kansas fulfilled the requirements in 51.308(i)(2), (3), and (4) to provide Federal Land Managers (FLMs) with an opportunity to consult on the RH SIP revision, describe how KDHE addressed the FLMs' comments, and provide procedures for continuing consultation.

Regional haze is a visibility impairment produced by many sources and activities located across a broad geographic area that emit fine particulates that impair visibility by scattering and absorbing light, thereby reducing the clarity, color, and visible distance that one can see. These fine particles also can cause serious health effects and mortality in humans and contribute to environmental impacts, such as acid deposition and eutrophication of water bodies.

The RHR uses the deciview as the principle metric for measuring visibility and for the RPGs that serve as interim visibility goals toward meeting the national visibility goal of reaching natural conditions by 2064. A deciview expresses uniform changes in haziness in terms of common increments across the entire range of visibility conditions, from pristine to extremely hazy conditions. Deciviews are determined by using air quality measurements to estimate light extinction, and then transforming the value of light extinction using a logarithmic function. Deciview is a more useful measure for tracking progress in improving visibility than light extinction because each deciview change is an equal incremental change in visibility perceived by the human eye. Most people can detect a change in visibility at one deciview.

In section 169A(a)(1) of the CAA amendmnets of 1977, Congress created a program to protect visibility in designated national parks and wilderness areas, establishing as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from manmade air pollution.” In accordance with section 169A of the CAA and after consulting with the Departmnet of Interior, EPA promulgated a list of 156 mandatory Class I Federal areas where visibility is identified as an important value (44 FR 69122, November 30, 1979). In this notice, we refer to mandatory Class I Federal areas as “Class I areas.” Kansas does not have any Class I areas within the state.

With the CAA amendments of 1990, Congress added section 169B to address regional haze issues. EPA promulgated a rule to address regional haze on July 1, 1999, known as the Regional Haze Rule (64 FR 35713). The RHR revised the existing visibility regulations in 40 CFR 51.308 to integrate provisions addressing regional haze impairment and to establish a comprehensive visibility protection program for Class I areas.

KDHE submitted its initial RH SIP to EPA on October 26, 2009, in accordance with the requirements of 40 CFR 51.308 for the first regional haze planning period ending in 2018. EPA approved the Kansas RH SIP for the first planning period on December 27, 2011 (76 FR 80754). The Progress Report from KDHE is the first evaluation of whether the existing Kansas RH SIP is sufficient to enable other states affected by emissions from sources in Kansas to meet the established visibility goals for 2018.

States are required to submit a progress report in the form of a SIP revision every five years that evaluates progress towards the RPGs for each mandatory Class I Federal area within the state and in each mandatory Class I Federal area outside the state which may be affected by emissions from within the state. 40 CFR 51.308(g). States are also required to submit, at the same time as the progress report, a determination of the adequacy of the state's existing regional haze SIP. 40 CFR 51.308(h). The first progress report SIP is due five years after submittal of the initial regional haze SIP. In summary,1 the seven elements are: (1) A description of the status of measures in the approved regional haze SIP; (2) a summary of emissions reductions achieved; (3) an assessment of visibility conditions for each Class I area in the state; (4) an analysis of changes in emissions from sources and activities within the state; (5) an assessment of any significant changes in anthropogenic emissions within or outside the state that have limited or impeded progress in Class I areas impacted by the state's sources; (6) an assessment of the sufficiency of the approved regional haze SIP; and (7) a review of the state's visibility monitoring strategy.

Under 40 CFR 51.308(h), states are required to submit, at the same time as the progress report SIP, a determination of the adequacy of their existing regional haze SIP and to take one of four possible actions based on information in the progress report. In summary,2 these actions are to: (1) Submit a negative declaration to EPA that no further substantive revision to the state's existing regional haze SIP is needed; (2) provide notification to EPA (and other state(s) that participated in the regional planning process) if the state determines that its existing regional haze SIP is or may be inadequate to ensure reasonable progress at one or more Class I areas due to emissions from sources in other state(s) that participated in the regional planning process, and collaborate with these other state(s) to develop additional strategies to address deficiencies; (3) provide notification with supporting information to EPA if the state determines that its existing regional haze SIP is or may be inadequate to ensure reasonable progress at one or more Class I areas due to emissions from sources in another country; or (4) revise its regional haze SIP to address deficiencies within one year if the state determines that its existing regional haze SIP is or may be inadequate to ensure reasonable progress in one or more Class I areas due to emissions from sources within the state.

A state must document that it provided FLMs with an opportunity for consultation prior to holding a public hearing on an RH SIP or plan revision as required in 40 CFR 51.308(i)(2). In addition, a state must include a description of how it addressed any comments from the FLMs, and provide procedures for continuing consultation with the FLMs as required in 40 CFR 51.208(i)(3) and (4).

The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

This section describes Kansas' Progress Report and EPA's evaluation of the Report in relation to the seven elements listed in 40 CFR 51.308(g) and the determination of adequacy in 40 CFR 51.308(h). We also review the requirement in 40 CFR 51.308(i)(2) for state and FLM coordination on a plan revision.

40 CFR 51.308(g)(1) requires a description of the status of implementation of all measures included in the regional haze SIP for achieving RPGs for Class I areas both within and outside the state. Kansas evaluated the status of all measures included in its 2009 regional haze SIP in accordance with 40 CFR 51.308(g)(1). In its Progress Report, Kansas summarizes the long-term strategy for emissions reductions of all air pollutants that may affect visibility. The state notes that Nitrogen Oxides (NOX) and Sulfur Dioxide (SO2) are the most important pollutants in reducing visibility and includes details of the strategies implemented to reduce those pollutants. The measures include both state and Federal programs. The state programs include unit-specific emissions limits for the five electric generating units that are subject to BART and were included in agreements between KDHE and the owners of the EGU's, which were later modified by an enforcement settlement between EPA and Westar Energy. The measures also include applicable Federal programs (e.g., Maximum Achievable Control Technology (MACT) standards, the 2007 Heavy-Duty Highway Rule, Tier 2 Vehicle and Gasoline Sulfur Program, and the Clean Air Nonroad Diesel Rule). The state documents the implementation status of measures from its regional haze SIP as well as describes significant measures resulting from EPA regulations other than the regional haze program as they pertain to the state's sources. Kansas describes the implementation status of measures from its regional haze SIP, including the status of control measures to meet BART and reasonable progress requirements, as well as the status of significant measures resulting from EPA regulations.

EPA proposes to find that Kansas' analysis adequately addresses 40 CFR 51.308(g)(1) for reasons discussed above.

40 CFR 51.308(g)(2) requires a summary of the emissions reductions achieved in the state through the measures subject to 40 CFR 51.308(g)(1). In its regional haze SIP and Progress Report, Kansas focuses its assessment on NOX and SO2 emissions from stationary sources because the state determined that these sources accounted for the majority of the visibility-impairing pollution from Kansas. SO2 emissions from subject-to-BART facilities decreased in Kansas from 80,828 tons in 2003 to 17,026 tons in 2012, a 79 percent decrease. Also, NOX emissions decreased from 60,936 tons in 2002 to 16,434 tons in 2012, a 73 percent decrease. Kansas noted that reasonable progress units declined 60 percent for NOX and 77 percent for SO2 from 2002 to 2012. Much of these reductions were not mandated by the Regional Haze SIP, but by the 2010 Westar Energy settlement 3 and closure of the Lafarge Midwest-Fredonia Portland cement kilns.

EPA proposes to conclude that Kansas has adequately addressed 40 CFR 51.308(g)(2). The state provides actual emissions reductions of NOX and SO2 from EGUs and other large NOX and SO2 sources in Kansas that have occurred since Kansas submitted its regional haze SIP. The state also provides estimates of emissions of NOX and SO2 for 2018. Kansas appropriately focused on NOX and SO2 emissions from its EGUs and other stationary sources in its progress report SIP because it previously identified these emissions as the most significant contributors to visibility impairment at those Class I areas that Kansas sources impact.

Given the large NOX and SO2 reductions at subject-to-BART EGUs and other sources that have actually occurred, further analysis of emissions from other sources or other pollutants was ultimately unnecessary in this first implementation period. Because no additional controls were found to be necessary for reasonable progress for the first implementation period for evaluated sources in Kansas, EPA proposes to find that no further discussion of emissions reductions from controls was necessary in the Progress Report.

40 CFR 51.308(g)(3) requires that states with Class I areas provide the following information for the most impaired and least impaired days for each area, with values expressed in terms of five-year averages of these annual values: current visibility conditions; the difference between current visibility conditions and baseline visibility conditions; and the change in visibility impairment over the past five years.

Kansas does not have any Class I areas within its boundaries, and as this section pertains only to states containing Class I areas, therefore, no further discussion is necessary. However, Kansas noted in its Progress Report that it is beneficial to have a record of visibility conditions at the Class I areas that are most affected by Kansas sources. The state analyzed four Class I areas, with a focus on the Wichita Mountains Wilderness area (the nearest Class I area to Kansas and most impacted by Kansas sources). The state compared the slope of the glide path of natural visibility conditions in 2064 to the slope of the best-fit line of five-year visibility averages from 2002 to 2011 (in deciviews) for the 20 percent worst days and 20 percent best days. The analysis showed that visibility at all four Class I areas was improving at a rate faster than the glide path for the 20 percent worst days. Only the Wichita Mountains Wilderness area was not improving faster than the glidepath for the 20 percent best days, although visibility was still improving in the area.

EPA proposes to conclude that Kansas has adequately addressed 40 CFR 51.308(g)(3).

40 CFR 51.308(g)(4) requires an analysis tracking emissions changes of visibility-impairing pollutants from the state's sources by type or category over the past five years based on the most recent updated emissions inventory. In its Progress Report, Kansas presents data from a statewide emissions inventory developed for the year 2002 and compares this data to the National Emissions Inventory (NEI) 2011 version 1 (dated September 30, 2013), or simply the 2011 NEIv1. For both the 2002 dataset and the 2011 NEIv1 data, pollutants inventoried include NOX, Fine Particulate Matter (PM2.5), Coarse Particulate Matter (PM10), Ammonia (NH3), and SO2. The emissions inventories from both the 2002 dataset and the 2011 NEIv1 include all point, nonpoint, onroad, and nonroad sources. The state interpolated values for 2009 through 2013 based on emissions inventory data. This shows that emissions of the key visibility-impairing pollutants identified by Kansas, NOX and SO2, continued to drop from 2009 to 2013 (decreasing 32,227 and 64,359 tons, respectively). Kansas noted that emissions of NOX and SO2, the primary contributors to visibility impairment from anthropogenic sources, are down significantly (10 percent for NOX and 59.6 percent for SO2). However, the state noted that NH3 and particulate matter (PM) emissions were reported up from the 2002 to 2011 inventories and need to be addressed. The state cited changes in the way that these pollutants were reported for each inventory as the reason for most of the reported increases in NH3 and PM. Accounting for the differing reporting methods shows that PM2.5 and PM10 emissions from fires is slightly up by 2011, however, this pollutant source is highly variable.

While ideally the five-year period to be analyzed for emissions inventory changes is the time period since the current regional haze SIP was submitted, there is an inevitable time lag in developing and reporting complete emissions inventories once equality-assured emissions data becomes available. Therefore, EPA believes that there is some flexibility in the five-year time period that states can select. Kansas tracked changes in emissions of visibility-impairing pollutants using the 2011 NEIv1, which was the most recent updated inventory of actual emissions for the state at the time that it developed the progress report SIP. EPA believes that Kansas's use of the five-year period from 2009 to 2013 reflects an accurate picture of the actual emissions realized between 2002-2013, and as in many cases, Kansas had already reached or surpassed their 2018 goals by 2013. EPA proposes to conclude that Kansas has adequately addressed 40 CFR 51.308(g)(4).

40 CFR 51.308(g)(5) requires an assessment of any significant changes in anthropogenic emissions within or outside the state that have occurred over the past five years that have limited or impeded progress in reducing pollutant emissions and improving visibility in Class I areas impacted by the state's sources.

In its Progress Report, Kansas addresses the changes in anthropogenic emissions between 2009 and 2013 throughout the Midwest, especially due to sources installing controls to comply with present and near-future air quality standards (the Mercury and Air Toxics Standards Rule and the Clean Air Interstate Rule). Kansas noted that there have been significant reductions among anthropogenic emissions source categories, especially EGU's, with decreases in SO2 of 17.5 percent and NOX of 30.9 percent in Kansas and bordering states combined.

Kansas demonstrated that there are no significant changes in anthropogenic emissions that have impeded progress in reducing emissions and improving visibility in Class I areas impacted by Kansas and bordering state sources. The state referenced its analyses in the progress report SIP identifying an overall downward trend in these emissions from 2009 to 2013 in Kansas. Further, the progress report SIP shows that Kansas is on track to meeting its 2018 emissions projections.

EPA proposes to find that Kansas has adequately addressed 40 CFR 51.308(g)(5).

40 CFR 51.308(g)(6) requires an assessment of whether the current regional haze SIP is sufficient to enable Kansas, or other states, to meet the RPGs for Class I areas affected by emissions from the state. In its Progress Report, Kansas states that it believes that the elements and strategies outlined in its original regional haze SIP are sufficient to enable Kansas and other neighboring states to meet all of the established RPGs and no further revision to the initial Kansas Regional Haze SIP is needed at this time. To support this conclusion, Kansas notes that anthropogenic emissions of NOX has dropped 10 percent and SO2 has dropped 59.6 percent.

EPA views this requirement as a qualitative assessment that should evaluate emissions and visibility trends and other readily available information, including expected emissions reductions associated with measures with compliance dates that have not yet become effective. Kansas referenced the improving visibility trends at affected Class I areas and the downward emissions trends in the state, with a focus on NOX and SO2 emissions from Kansas' EGUs that support Kansas' determination that its regional haze SIP is sufficient to meet RPGs for Class I areas outside the state impacted by Kansas sources. EPA believes that Kansas' conclusion regarding the sufficiency of the regional haze SIP is appropriate because of the calculated visibility improvement using the latest available data and the downward trend in NOX and SO2 emissions from sources in Kansas. EPA proposes to conclude that Kansas has adequately addressed 40 CFR 51.308(g)(6).

40 CFR 51.308(g)(7) requires a review of the state's visibility monitoring strategy and an assessment of whether any modifications to the monitoring strategy are necessary. In its progress report SIP, Kansas summarizes the existing IMPROVE monitoring network and its intended continued reliance on IMPROVE for visibility planning. Kansas operates two IMPROVE Protocol sampling sites, one at Cedar Bluff State Park in Trego County and the other at Tallgrass Prairie National Preserve in the Flint Hills region of eastern Kansas. Kansas has updated its monitoring plan annually and will consider the need to operate two IMPROVE sites with increasingly constrained finances.

EPA proposes to conclude that Kansas has adequately addressed the sufficiency of its monitoring strategy as required by 40 CFR 51.308(g)(7).

Under 40 CFR 51.308(h), states are required to take one of four possible actions based on the information gathered and conclusions made in the progress report SIP. The following section summarizes: (1) The action taken by Kansas under 40 CFR 51.308(h); (2) Kansas's rationale for the selected action; and (3) EPA's analysis and proposed determination regarding the state's action.

In its Progress Report, Kansas took the action provided for by 40 CFR 51.308(h)(1), which allows a state to submit a negative declaration to EPA if the state determines that the existing regional haze SIP requires no further substantive revision at this time to achieve the RPGs for Class I areas affected by the state's sources. The basis for Kansas' negative declaration is the findings from the progress report (as discussed in section II. A. of this action), including the findings that: NOX and SO2 emissions from Kansas's sources have decreased beyond original projections; and the NOX and SO2 emissions from EGUs in Kansas are already below the levels projected for 2018 in the regional haze SIP and are expected to continue to trend downward for the next five years.

Based on these findings, EPA proposes to agree with Kansas' conclusion under 40 CFR 51.308(h) that no further substantive changes to its regional haze SIP are required at this time.

On November 25, 2014, KDHE provided to the FLMs, a revision to Kansas' SIP reporting on progress made during the first implementation period toward RPGs for Class I areas in the state and Class I areas outside the state that are affected by emissions from Kansas's sources. Notification was published in the Kansas Register, regional newspapers, and the KDHE Web site on October 23, 2014. A public hearing was not held because KDHE received no requests for a public hearing and the public comment period ended on November 21, 2014. On March 10, 2015, KDHE submitted the SIP to EPA.

Kansas' Progress Report includes the FLMs comments and KDHE's response to those comments in Appendix I to the Progress Report. In the section 3.8 Federal Land Manager (FLM) Coordination, KDHE commits to continuing policy discussions with the FLMs.

EPA proposes to find that KDHE has addressed the requirements in 51.308(i)(2), (3), and (4) to provide FLMs with an opportunity for consultation in person and at least 60 days prior to a public hearing on the SIP revision; include a description in the SIP revision of how it addressed any comments from the FLMs; and provide procedures for continuing consultation between the State and FLMs.

EPA is proposing approval of a revision to the Kansas SIP, submitted by the State of Kansas on March 10, 2015, as meeting the applicable regional haze requirements as set forth in 40 CFR 51.308(g) and 51.308(h). We are processing this as a proposed action because we are soliciting comments on this proposed action. Final rulemaking will occur after consideration of any comments.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this proposed action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This proposed action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 10, 2015. Filing a petition for reconsideration by the Administrator of this proposed rule does not affect the finality of this rulemaking for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such future rule or action. This proposed action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, EPA proposes to amend 40 CFR part 52 as set forth below:

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you manufacture, process, or use the chemical substances contained in this proposed rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Manufacturers (including importers) or processors of one or more subject chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.

This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers of chemicals subject to these SNURs must certify their compliance with the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance to a proposed or final rule are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see § 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. 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.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

EPA is proposing these SNURs under TSCA section 5(a)(2) for 30 chemical substances which were the subject of PMNs P-13-793, P-14-72, P-14-89, P-14-90, P-14-91, P-14-92, P-14-158, P-14-159, P-14-161, P-14-162, P-14-163, P-14-173, P-14-175, P-14-176, P-14-177, P-14-178, P-14-179, P-14-180, P-14-181, P-14-182, P-14-183, P-14-184, P-14-185, P-14-186, P-14-187, P-14-188, P-14-190, P-14-191, P-14-192, and P-14-193. These SNURs would require persons who intend to manufacture or process any of these chemical substances for an activity that is designated as a significant new use to notify EPA at least 90 days before commencing that activity. In accordance with the procedures at § 721.160(c)(3)(i), in the Federal Register publication of October 27, 2014 (79 FR 63821) (FRL-9914-56) EPA issued direct final SNURs on these chemical substances, which are the subject of PMNs. EPA received notices of intent to submit adverse comments on these SNURs. Therefore, as required by § 721.160(c)(3)(ii), EPA withdrew the direct final SNURs in the Federal Register of December 23, 2014 (79 FR 76900) (FRL-9920-6325), and is now issuing this proposed rule on these 30 chemical substances. The records for the direct final SNURs on these 30 chemical substances were established as docket EPA-HQ-OPPT-2014-0390. Those records include information considered by the Agency in developing the direct final rule. Adverse comments received regarding these substances and the direct final rule are discussed in Unit IV.

Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four bulleted TSCA section 5(a)(2) factors listed in Unit III. Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture or process the chemical substance for that use. Persons who must report are described in § 721.5.

General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the final rule. Provisions relating to user fees appear at 40 CFR part 700. According to § 721.1(c), persons subject to these SNURs must comply with the same SNUN requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA section 5(b) and 5(d)(1), the exemptions authorized by TSCA section 5(h)(1), (h)(2), (h)(3), and (h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA may take regulatory action under TSCA section 5(e), 5(f), 6, or 7 to control the activities for which it has received the SNUN. If EPA does not take action, EPA is required under TSCA section 5(g) to explain in the Federal Register its reasons for not taking action.

Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:

• The projected volume of manufacturing and processing of a chemical substance.

• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.

• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.

• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorized EPA to consider any other relevant factors.

To determine what would constitute a significant new use for the chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, likely human exposures and environmental releases associated with possible uses, and the four bulleted TSCA section 5(a)(2) factors listed in this unit.

EPA is proposing significant new use and recordkeeping requirements for 30 chemical substances in 40 CFR part 721, subpart E. In this unit, EPA provides the following information for each chemical substance:

• PMN number.

• Chemical name (generic name, if the specific name is claimed as CBI).

• Chemical Abstracts Service (CAS) Registry number (assigned for non-confidential chemical identities).

• Public comments and EPA's response to comments on the 30 direct final SNURs subject to PMNs P-13-793, P-14-72, P-14-89, P-14-90, P-14-91, P-14-92, P-14-158, P-14-159, P-14-161, P-14-162, P-14-163, P-14-173, P-14-175, P-14-176, P-14-177, P-14-178, P-14-179, P-14-180, P-14-181, P-14-182, P-14-183, P-14-184, P-14-185, P-14-186, P-14-187, P-14-188, P-14-190, P-14-191, P-14-192, and P-14-193

• Basis for the TSCA non-section 5(e) SNURs (i.e., SNURs without TSCA section 5(e) consent orders).

• Tests recommended by EPA to provide sufficient information to evaluate the chemical substance (see Unit VII. for more information).

• CFR citation assigned in the regulatory text section of this proposed rule.

The regulatory text section of this proposed rule specifies the activities designated as significant new uses. Certain new uses, including production volume limits (i.e., limits on manufacture and importation volume) and other uses designated in this proposed rule, may be claimed as CBI.

Chemical name: Functionalized carbon nanotubes (generic).

CAS number: Claimed confidential.

Public comment: A notice of intent to adversely comment has been submitted.

EPA response: EPA awaits the adverse comment during the open comment period for this notice of proposed rulemaking.

Basis for action: The PMN states that the substance will be used as a thin film for electronic device applications. Based on structure activity relationship (SAR) analysis of test data on analogous carbon nanotubes and other respirable poorly soluble particulates, EPA identified potential lung effects, developmental toxicity, and dermal toxicity from exposure to the PMN substance via inhalation, dermal, and oral routes. Further, EPA predicts toxicity to aquatic organisms via releases of the PMN substance to surface water. Although there is potential for dermal exposure, EPA does not expect significant occupational exposures due to the use of impervious gloves, and because the PMN is used in liquid form and is not spray applied. Further, EPA does not expect environmental releases during the use identified in the PMN submission. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance may present an unreasonable risk human health or the environment. EPA has determined, however, that any use of the substance without the use of impervious gloves, where there is a potential for dermal exposure; manufacturing the PMN substance for use other than as a thin film for electronic device applications; manufacturing, processing, or using the PMN substance in a form other than a liquid; use of the PMN substance involving an application method that generates a mist, vapor, or aerosol; or any release of the PMN substance into surface waters may cause serious health effects or significant adverse environmental effects. Based on this information, the PMN substance meets the concern criteria in § 721.170 (b)(3)(ii) and (b)(4)(ii).

Recommended testing: EPA has determined that the results of an oral and inhalation pharmacokinetic test (OPPTS Test Guideline 870.7485); a 90-day inhalation toxicity test (OPPTS Test Guideline 870.3465); a fish early-life stage toxicity test (OPPTS Test Guideline 850.1400); a daphnid chronic toxicity test (OPPTS Test Guideline 850.1300); an algal toxicity test (OCSPP Test Guideline 850.4500); and a surface charge by electrophoresis by either the (ASTM Test Guideline E2865-12) or measuring the zeta potential of nanoparticles (Nanotechnology Characterization Library (NCL) Method PCC-2) (located in the Docket under Docket ID number EPA-HQ-OPPT-2014-0390); would help characterize the human health and environmental effects of the PMN substance.

CFR citation: 40 CFR 721.10776.

Chemical name: Propaneperoxoic acid, 2,2-dimethyl-, 1,1,3,3-tetramethylbutyl ester.

CAS number: 22288-41-1.

Public comment: A notice of intent to adversely comment has been submitted.

EPA response: EPA awaits the adverse comment during the open comment period for this notice of proposed rulemaking.

Basis for action: The PMN states that the use of the substance will be as a polymerization initiator for the production of polyvinyl chloride (PVC) and polyethylene resin. Based on test data on the PMN substance, as well as ecological SAR analysis of test data on analogous peroxy esters, EPA predicts toxicity to aquatic organisms may occur at concentrations that exceed 3 parts per billion (ppb) of the PMN substance in surface waters. As described in the PMN, releases of the substance are not expected to result in surface water concentrations that exceed 3 ppb. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that any use of the substance resulting in surface waters concentrations exceeding 3 ppb may result in significant adverse environmental effects. Based on this information, the PMN substance meets the concern criteria at § 721.170 (b)(4)(i) and (b)(4)(ii).

Recommended testing: EPA has determined that the results of a ready biodegradability test (Organisation for Economic Co-operation and Development (OECD) Test Guideline 301C) with product-specific chemical analytics to validate the degradation products (including intermediate products) and the rates of degradation (including intermediate degradation rates); and a hydrolysis as a function of pH and temperature test (OPPTS Test Guideline 835.2130) would help characterize the environmental effects of the PMN substance.

CFR citation: 40 CFR 721.10780.

Chemical names: Fatty acid amide hydrochlorides (generic).

CAS numbers: Claimed confidential.

Public comment: A notice of intent to adversely comment has been submitted, by the PMN submitter. The comment expressed concern that EPA's approach for these SNURs changed from that transmitted in writing by EPA during the PMN review period. As a result, the PMN submitter was not given the opportunity to discuss, provide pertinent information on, respond to, or comment on this change.

EPA response: EPA met with the PMN submitter on December 17, 2014 to discuss procedural and policy issues raised in connection with the withdrawn SNURs. EPA awaits formal comment during the open comment period for this proposed rule.

Basis for action: The consolidated PMN states that the substances will be used as surfactants for use in asphalt emulsions. Based on ecological SAR analysis of test data on analogous aliphatic amines, EPA predicts toxicity to aquatic organisms may occur at concentrations that exceed the following values of the PMN substances in surface waters:

For the use described in the PMNs, releases of the substances are not expected to result in surface water concentrations that exceed these values. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that any use of the substances resulting in surface water concentrations exceeding the aforementioned concentrations of concern may result in significant adverse environmental effects. Based on this information, the PMN substances meet the concern criteria at § 721.170(b)(4)(ii).

Recommended testing: EPA has determined that the results of a fish acute toxicity test, freshwater and marine (OPPTS Test Guideline 850.1075); an aquatic invertebrate acute toxicity test, freshwater daphnids (OPPTS Test Guideline 850.1010); and an algal toxicity test (OCSPP Test Guideline 850.4500) would help characterize the environmental effects of the PMN substances. EPA also recommends that the guidance document on aquatic toxicity testing of difficult substances and mixtures (OECD Test Guideline 23) be followed.

CFR citation: 40 CFR 721.10781.

Chemical names: Fatty acid amides (generic).

CAS numbers: Claimed confidential.

Public comment: A notice of intent to adversely comment has been submitted, by the PMN submitter. The comment expressed concern that EPA's approach for these SNURs changed from that transmitted in writing by EPA during the PMN review period. As a result, the PMN submitter was not given the opportunity to discuss, provide pertinent information on, respond to, or comment on this change.

EPA response: EPA met with the PMN submitter on December 17, 2014 to discuss procedural and policy issues raised in connection with the withdrawn SNURs. EPA awaits formal comment during the open comment period for this proposed rule.

Basis for action: The consolidated PMN states that the substances will be used as chemical intermediates and additives for flotation products. Based on ecological SAR analysis of test data on analogous amides and aliphatic amines, EPA predicts toxicity to aquatic organisms may occur at concentrations that exceed the following values of the PMN substances in surface waters:

For the use described in the PMNs, releases of the substances are not expected to result in surface water concentrations that exceed these values. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that any use of the substances resulting in surface water concentrations exceeding the aforementioned concentrations of concern may result in significant adverse environmental effects. Based on this information, the PMN substances meet the concern criteria at § 721.170(b)(4)(ii).

Recommended testing: EPA has determined that the results of (1) a water solubility: Column elution method; shake flask method test (OPPTS Test Guideline 830.7840) or a water solubility generator column method test (OPPTS Test Guideline 830.7860); and (2) a determination of the partition coefficient (n-octanol/water) by shake flask method (OPPTS Test Guideline 830.7550), or generator column method (OPPTS Test Guideline 830.7560), or estimation by liquid chromatography (OPPTS Test Guideline 830.7570) would help characterize the physical/chemical properties of the PMN substances. Depending upon the results of these data, the results of a fish early-life stage toxicity test (OPPTS Test Guideline 850.1400); a daphnid chronic toxicity test (OPPTS Test Guideline 850.1300); and an algal toxicity test (OCSPP Test Guideline 850.4500) may be recommended to help characterize the environmental effects of the PMN substances.

CFR citation: 40 CFR 721.10782.

Chemical names: Fatty acid amide acetates (generic).

CAS numbers: Claimed confidential.

Public comment: A notice of intent to adversely comment has been submitted, by the PMN submitter. The comment expressed concern that EPA's approach for these SNURs changed from that transmitted in writing by EPA during the PMN review period. As a result, the PMN submitter was not given the opportunity to discuss, provide pertinent information on, respond to, or comment on this change.

EPA response: EPA met with the PMN submitter on December 17, 2014 to discuss procedural and policy issues raised in connection with the withdrawn SNURs. EPA awaits formal comment during the open comment period for this proposed rule.

Basis for action: The PMNs state that the substances will be used as flotation additives for use in mineral processing. Based on ecological SAR analysis of test data on analogous amides and aliphatic amines, EPA predicts toxicity to aquatic organisms may occur at concentrations that exceed the following values of the PMN substances in surface waters:

For the use described in the PMNs, releases of the substances are not expected to result in surface water concentrations that exceed these values. Therefore, EPA has not determined that the proposed manufacturing, processing, or use of the substance may present an unreasonable risk. EPA has determined, however, that any use of the substances resulting in surface water concentrations exceeding the aforementioned concentrations of concern may result in significant adverse environmental effects. Based on this information, the PMN substances meet the concern criteria at § 721.170(b)(4)(ii).

Recommended testing: EPA has determined that the results of a fish acute toxicity test, freshwater and marine (OPPTS Test Guideline 850.1075); an aquatic invertebrate acute toxicity test, freshwater daphnids (OPPTS Test Guideline 850.1010); and an algal toxicity test (OCSPP Test Guideline 850.4500) on P-14-184, and any one of the remaining PMN substances, would help characterize the environmental effects of the PMN substances. Further, EPA determined that the results of a fish acute toxicity mitigated by humic acid test (OPPTS Test Guideline 850.1085) on PMN P-14-184 would help characterize the environmental effects of the PMN substance. EPA also recommends that the guidance document on aquatic toxicity testing of difficult substances and mixtures (OECD Test Guideline 23) be followed.

CFR citation: 40 CFR 721.10783.

During review of the PMNs submitted for the chemical substances that are subject to these SNURs, EPA determined that one or more of the criteria of concern established at §  721.170 were met. For additional discussion on these chemical substances, see Units II. and IV. of this proposed rule.

EPA is proposing these SNURs for specific chemical substances which have undergone premanufacture review because the Agency wants to achieve the following objectives with regard to the significant new uses designated in this proposed rule:

• EPA would receive notice of any person's intent to manufacture or process a listed chemical substance for the described significant new use before that activity begins.

• EPA would have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing or processing a listed chemical substance for the described significant new use.

• EPA would be able to regulate prospective manufacturers or processors of a listed chemical substance before the described significant new use of that chemical substance occurs, provided that regulation is warranted pursuant to TSCA sections 5(e), 5(f), 6, or 7.

Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Chemical Substance Inventory (TSCA Inventory). Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the Internet at http://www.epa.gov/opptintr/existingchemicals/pubs/tscainventory/index.html.

To establish a significant new use, EPA must determine that the use is not ongoing. The chemical substances subject to this proposed rule have undergone premanufacture review. In cases where EPA has not received a notice of commencement (NOC) and the chemical substance has not been added to the TSCA Inventory, no person may commence such activities without first submitting a PMN. Therefore, for chemical substances for which an NOC has not been submitted EPA concludes that the designated significant new uses are not ongoing.

When chemical substances identified in this proposed rule are added to the TSCA Inventory, EPA recognizes that, before the rule is effective, other persons might engage in a use that has been identified as a significant new use. The identities of 29 of the 30 chemical substances subject to this proposed rule have been claimed as confidential and EPA has received no post-PMN bona fide submissions (per §§ 720.25 and 721.11). Based on this, the Agency believes that it is highly unlikely that any of the significant new uses described in the regulatory text of this proposed rule are ongoing.

Therefore, EPA designates June 10, 2015 as the cutoff date for determining whether the new use is ongoing. Persons who begin commercial manufacture or processing of the chemical substances for a significant new use identified as of that date would have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons would have to first comply with all applicable SNUR notification requirements and wait until the notice review period, including any extensions, expires. If such a person met the conditions of advance compliance under § 721.45(h), the person would be considered exempt from the requirements of the SNUR. Consult the Federal Register document of April 24, 1990 (55 FR 17376) for a more detailed discussion of the cutoff date for ongoing uses.

EPA recognizes that TSCA section 5 does not require developing any particular test data before submission of a SNUN. The two exceptions are:

1. Development of test data is required where the chemical substance subject to the SNUR is also subject to a test rule under TSCA section 4 (see TSCA section 5(b)(1)).

2. Development of test data may be necessary where the chemical substance has been listed under TSCA section 5(b)(4) (see TSCA section 5(b)(2)).

In the absence of a TSCA section 4 test rule or a TSCA section 5(b)(4) listing covering the chemical substance, persons are required only to submit test data in their possession or control and to describe any other data known to or reasonably ascertainable by them (see 40 CFR 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. Descriptions of tests are provided for informational purposes. EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection. To access the OCSPP test guidelines referenced in this document electronically, please go to http://www.epa.gov/ocspp and select “Test Methods and Guidelines.” The Organisation for Economic Co-operation and Development (OECD) test guidelines are available from the OECD Bookshop at http://www.oecdbookshop.org or SourceOECD at http://www.sourceoecd.org. ASTM International standards are available at http://www.astm.org/Standard/index.shtml.

The recommended tests specified in Unit IV. may not be the only means of addressing the potential risks of the chemical substance. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA section 5(e), particularly if satisfactory test results have not been obtained from a prior PMN or SNUN submitter. EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.

SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:

• Human exposure and environmental release that may result from the significant new use of the chemical substances.

• Potential benefits of the chemical substances.

• Information on risks posed by the chemical substances compared to risks posed by potential substitutes.

According to §  721.1(c), persons submitting a SNUN must comply with the same notification requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and 721.25. E-PMN software is available electronically at http://www.epa.gov/opptintr/newchems.

EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers and processors of the chemical substances subject to this proposed rule, during the development of the direct final rule. EPA's complete economic analysis is available in the docket under docket ID number EPA-HQ-OPPT-2014-0390.

This proposed rule would establish SNURs for 30 chemical substances that were the subject of PMNs. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993).

According to PRA (44 U.S.C. 3501 et seq.), an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register, are listed in 40 CFR part 9, and included on the related collection instrument or form, if applicable.

The information collection requirements related to this proposed rule have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This proposed rule would not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.

Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.

On February 18, 2012, EPA certified pursuant to RFA section 605(b) (5 U.S.C. 601 et seq.), that promulgation of a SNUR does not have a significant economic impact on a substantial number of small entities where the following are true:

1. A significant number of SNUNs would not be submitted by small entities in response to the SNUR.

2. The SNUR submitted by any small entity would not cost significantly more than $8,300.

A copy of that certification is available in the docket for this proposed rule.

This proposed rule is within the scope of the February 18, 2012 certification. Based on the Economic Analysis discussed in Unit IX. and EPA's experience promulgating SNURs (discussed in the certification), EPA believes that the following are true:

• A significant number of SNUNs would not be submitted by small entities in response to the SNUR.

• Submission of the SNUN would not cost any small entity significantly more than $8,300.

Therefore, the promulgation of the SNUR would not have a significant economic impact on a substantial number of small entities.

Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government would be impacted by this proposed rule. As such, EPA has determined that this proposed rule would not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1501 et seq.).

This proposed rule would not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999).

This proposed rule would not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This proposed rule would not significantly nor uniquely affect the communities of Indian Tribal governments, nor would it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this proposed rule.

This proposed rule is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this proposed rule does not address environmental health or safety risks disproportionately affecting children.

This proposed rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because this proposed rule is not expected to affect energy supply, distribution, or use and because this proposed rule is not a significant regulatory action under Executive Order 12866.

In addition, since this proposed rule would not involve any technical standards, NTTAA section 12(d) (15 U.S.C. 272 note), would not apply to this proposed rule.

This proposed rule does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Therefore, it is proposed that 40 CFR chapter I be amended as follows:

Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th Street SW., Room TW-A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

• Commercial Mail 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, Express, and Priority mail should be addressed to 445 12th Street SW., Washington, DC 20554.

This is a summary of the Commission's document FCC 15-58, Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Section 105, Relay Services for Deaf-Blind Individuals, Notice of Proposed Rulemaking (NPRM), adopted on May 21, 2015 and released on May 27, 2015, in CG Docket No. 10-210. The full text of document FCC 15-58 will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. Document FCC 15-58 can also be downloaded in Word or Portable Document Format (PDF) at http://www.fcc.gov/ndbedp.

This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. 47 CFR 1.1200 et seq. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

Document FCC 15-58 seeks comment on proposed rule amendments that may result in modified information collection requirements. If the Commission adopts any modified information collection requirements, the Commission will publish another notice in the Federal Register inviting the public to comment on the requirements, as required by the Paperwork Reduction Act. Public Law 104-13, 109 Stat. 163; 44 U.S.C. 3501-3520. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, the Commission seeks comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees. Public Law 107-198, 116 Stat. 729; 44 U.S.C. 3506(c)(4).

1. In the (NPRM), the Commission seeks comment on proposed rules to govern the NDBEDP on a permanent basis. The NDBEDP supports programs that distribute communications equipment to low-income individuals who are deaf-blind. The NDBEDP has operated as a pilot program since July 2012.

2. Section 105 of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) added section 719 to the Communications Act of 1934, as amended, which directed the Commission to establish rules to provide up to $10 million annually from the Interstate Telecommunications Relay Service Fund (TRS Fund) to support programs that distribute communications equipment to low-income individuals who are deaf-blind. Public Law 111-260, 124 Stat. 2751 (2010); Public Law 111-265, 124 Stat. 2795 (2010); 47 U.S.C. 620. In 2011, the Commission established the NDBEDP as a two-year pilot program, with an option to extend it for an additional year. Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Section 105, Relay Services for Deaf-Blind Individuals, CG Docket No. 10-210, Report and Order, published at 76 FR 26641, May 9, 2011 (NDBEDP Pilot Program Order); 47 CFR 64.610 (NDBEDP pilot program rules). The Consumer and Governmental Affairs Bureau (CGB or Bureau) launched the pilot program on July 1, 2012. To implement the program, the Bureau certified 53 entities to participate in the NDBEDP—one entity to distribute equipment in each state, plus the District of Columbia, Puerto Rico, and the U.S. Virgin Islands, hereinafter referred to as “state programs” or “certified programs”—and selected a national outreach coordinator to support the outreach and distribution efforts of these state programs. On February 7, 2014, the Bureau extended the pilot program for a third year, until June 30, 2015. Many individuals who received communications devices through the NDBEDP have reported that this program has vastly improved their daily lives, significantly enhancing their ability to live independently and expanding their educational and employment opportunities.

3. On August 1, 2014, the Bureau released a Public Notice inviting comment on which rules governing the NDBEDP pilot program should be retained and which should be modified to make the permanent NDBEDP more effective and more efficient. Consumer and Governmental Affairs Bureau Seeks Comment on the National Deaf-Blind Equipment Distribution Program, CG Docket No. 10-210, Public Notice, 29 FCC Rcd 9451 (CGB 2014). Comments filed in response to the Public Notice helped to inform the preparation of the NPRM. The Commission proposes to retain the NDBEDP pilot program rules for the permanent program, except as discussed in the NPRM.

4. On May 21, 2015, the Commission extended the pilot program for one additional year, until June 30, 2016. Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Section 105, Relay Services for Deaf-Blind Individuals, CG Docket No. 10-210, Order, FCC 15-57 (rel. May 27, 2015). The Commission commits to continue the pilot NDBEDP as long as necessary to ensure a seamless transition between the pilot and permanent programs to ensure the uninterrupted distribution of equipment to this target population. When the Commission adopts final rules for the permanent program it will consider the extent to which the pilot program needs to be extended further. The Commission invites comment on the need to extend the pilot program beyond June 30, 2016.

5. In establishing a permanent NDBEDP, the Commission also seeks comment on performance goals for all elements of the program along with performance measures that are clearly linked to each performance goal. Specifically, the Commission proposes the following goals: (1) Ensuring that the program effectively increases access to covered services by the target population; (2) ensuring that the program is administered efficiently; and (3) ensuring that the program is cost-effective. Funds available through the program come from contributions made by telecommunications service providers to the TRS Fund, and the Commission has a responsibility to ensure these funds are spent efficiently and effectively. Ensuring that certified programs use available funds in cost-effective ways maximizes the impact of program funds and helps ensure that as many eligible recipients as possible are able to receive the support they need. The Commission believes that clear performance goals and measures will enable it to determine whether the program is being used for its intended purpose and whether the funding for the program is accomplishing the intended results. To the extent that these proposed goals or other goals that commenters may propose may be in tension with each other, commenters should suggest how the Commission should prioritize or balance them. The Commission invites comment on what performance measures it should adopt to support these proposed goals, and whether it should adopt measures based on the information that certified programs are required to report to the Commission. The Commission also seeks comment on ways to manage and share data to track our progress in meeting these goals. Finally, the Commission proposes to periodically review whether it is making progress in addressing these goals by measuring the specific outcomes.

6. Under the NDBEDP pilot program, the Commission certifies one entity per state as the sole authorized entity to participate in the NDBEDP and receive support from the TRS Fund for the distribution of equipment and provision of related services to low-income individuals who are deaf-blind. Certified programs have primary oversight and responsibility for compliance with program requirements, but may fulfill their responsibilities directly or through collaboration, partnership, or contract with other individuals or entities within or outside of their states or territories. Services related to the distribution of equipment include outreach, assessment, installation, and training. Certified programs also perform administrative functions, including submitting reimbursement claims and reports, and conducting annual audits.

7. The Commission proposes to retain the current structure of the NDBEDP, certifying one entity to be responsible for the administration of the program, distribution of equipment, and provision of related services within each of the states and territories covered by the NDBEDP. The Commission believes that the localized approach that has been in place for almost three years has been successful in meeting the needs of eligible low-income individuals who are deaf-blind and that state entities are more likely to be familiar with their unique demographics and their available resources, and consequently are in a better position to respond to the localized needs of their residents. The Commission also believes that greater efficiencies and expanded capabilities can be achieved through a centralized database for reporting and reimbursement and through greater support for training, discussed further in the NPRM, without having to restructure the program from a state-based to a national system. The Commission seeks comment on this approach.

8. Thus far, 10 of the 53 state programs have relinquished their certifications, requiring the Commission to seek replacements in those states. The Commission recognizes that some adjustments have had to be made during the pilot program, a result that was not unexpected given that the NDBEDP is an entirely new program. However, on balance, the Commission believes that the success of NDBEDP, as evidenced by the delivery of equipment and services to thousands of deaf-blind individuals, shows that the system has been working well. To help reduce the incidence of program departures, as discussed further in the NPRM, the Commission proposes to establish a centralized database to facilitate the filing of reimbursement claims and semi-annual reports to the Commission. In addition, to minimize the risk of a lapse in service to deaf-blind individuals that might result during any future transitions from one certified state program to another, the Commission proposes that a certified program seeking to relinquish its certification provide written notice to the Commission at least 90 days in advance of its intent to do so. Further, the Commission proposes that such entities be required to transfer NDBEDP-purchased equipment, information, files, and other data to the newly-certified entity in its state within 30 days after the effective date of its certification to ensure a smooth transition and reduce any potential for a lapse in service. Finally, the Commission proposes requiring that all entities relinquishing their certifications comply with NDBEDP requirements necessary for the ongoing functioning of the program that they are exiting, including the submission of final reimbursement claims and six-month reports. The Commission seeks comment on these proposals, as well as other steps that the Commission should take to reduce the number of entities that relinquish their certifications and measures the Commission should adopt to minimize the impact on consumers when this occurs.

9. For the pilot program, the Bureau selected entities to participate in the NDBEDP that were located within and outside of the states that they served. Currently, of the 53 certified programs, 33 are administered by entities located within the states they serve and 20 are administered by entities located outside those states. For all but three of these 20 programs, the out-of-state entity selected was the sole applicant. The Commission proposes to continue allowing qualified out-of-state entities, in addition to in-state entities, to apply for certification to administer the NDBEDP, in collaboration with individuals or entities within or outside of their states or territories. It believes that this flexible approach assists those states that may not have sufficient resources on their own to provide the services required by the NDBEDP. The Commission seeks comment on this proposal and any alternatives that would ensure that the NDBEDP is able to serve the residents of each state.

10. The Commission authorized the NDBEDP pilot program to operate in each of the 50 states, plus the District of Columbia, Puerto Rico, and the U.S. Virgin Islands, noting that each of these jurisdictions administered an intrastate TRS program. The Commission reached this result because, like the TRS state programs, the NDBEDP certified programs are supported by the TRS Fund. Because residents of American Samoa, Guam, and the Northern Mariana Islands are also eligible to make and receive calls through one or more forms of relay services that are supported by the TRS Fund, the Commission proposes to expand the operation of the NDBEDP to these jurisdictions. The Commission seeks comment on this proposal, particularly from interested stakeholders who reside in these three territories, including entities that provide services to deaf-blind individuals.

11. Pursuant to the Commission's rules, the Bureau reviews applications and determines whether to grant NDBEDP certification based on the ability of a program to meet the following qualifications, either directly or in coordination with other programs or entities, as evidenced in the application and any supplemental materials, including letters of recommendation: (i) expertise in the field of deaf-blindness; (ii) the ability to communicate effectively with people who are deaf-blind; (iii) staffing and facilities sufficient to administer the program; (iv) experience with the distribution of specialized customer premises equipment; (v) experience in how to train users on how to set up and use the equipment; and (vi) familiarity with the telecommunications, Internet access, and advanced communications services that will be used with the distributed equipment. The Commission believes that these criteria have been effective in informing the Bureau's selection of qualified entities and proposes to retain these criteria to evaluate an entity's qualifications for certification as a state program. The Commission seeks comment on this proposal.

12. In addition, the Commission seeks comment on how it can supplement these criteria to better ensure that certain certified programs serve the full spectrum of people who are deaf-blind. Should the Commission establish minimum standards for the personnel providing services in these programs? For example, should individuals providing service have certain levels of linguistic competency? The Commission asks commenters to describe any difficulties they have experienced securing equipment or services from their state's certified program resulting from a lack of expertise in deaf-blindness or communications skills, and to be specific in recommending changes that may be necessary in the Commission's certification criteria to reduce these difficulties.

13. The Commission also seeks comment on the addition of certification criteria that address the ability of certified programs to administer a statewide program, the capacity to manage the financial requirements of a state program, expertise in assistive technology, and experience with equipment distribution capabilities. In particular, the Commission proposes to add administrative and financial management experience to the requirements for certification. The Commission seeks comment on this proposal. Should applicants also be required to demonstrate that they are capable of operating a statewide program or that they follow standard financial principles? To what extent would such requirements strengthen the NDBEDP? For example, would these reduce the likelihood of selected entities relinquishing their certification before completion of their terms? Conversely, would requiring such skills exclude too many otherwise qualified applicants? Finally, the Commission seeks comment on any other criteria that should be added to ensure the selection of certified entities that will be both responsive to the deaf-blind community's needs and capable of achieving full compliance with the Commission's NDBEDP rules.

14. Under the NDBEDP pilot program, the Commission prohibited certified programs from accepting financial arrangements from a vendor that could incentivize the purchase of particular equipment. The Commission continues to believe that such incentives could impede a certified program's ability to provide equipment that fully meets the unique needs of the deaf-blind persons it is serving. In addition to this rule, the Commission also requested that applicants for NDBEDP certification disclose in their initial certification application and thereafter, as necessary, any actual or potential conflicts of interest with manufacturers or providers of equipment that may be distributed under the NDBEDP. The Commission proposes to require such disclosures in applications for initial and continued certification under the permanent NDBEDP. To the extent that financial arrangements in which the applicant is a part create the risk of impeding the applicant's objectivity in the distribution of equipment or compliance with NDBEDP requirements—such as when the applicant is partially or wholly owned by an equipment manufacturer or vendor—the Commission proposes that it reject such applicant for NDBEDP certification. The Commission seeks comment on this proposal.

15. At present, all NDBEDP programs are certified for the duration of the pilot program. Consistent with the TRS certification rules for state TRS providers, to improve program accountability, and avoid unnecessary administrative burdens that may result from a certification period of two or three years, the Commission proposes that NDBEDP programs be certified for a period of five years. The Commission seeks comment on alternative timeframes other than five years including shorter timeframes, and asks about the pros and cons of opening the window up earlier than every five years. In the event that a certified program decides not to seek re-certification at the end of its five-year term, the Commission proposes requiring that such entities transfer NDBEDP-purchased equipment, information, files, and other data to the newly-certified entity in its state within 30 days after the effective date of certification of the new entity to ensure a smooth transition and reduce any potential for a lapse in service. This is consistent with the Commission's proposal to require the transfer of such materials when a certified program relinquishes its certification during its five-year term, discussed in the NPRM. The Commission seeks comment on this proposal.

16. Because the permanent NDBEDP may have some rule modifications, the Commission believes that it is appropriate to require each such entity to demonstrate its ability to meet all of the selection criteria anew, and to affirm its commitment to comply with all Commission rules governing the permanent program. Accordingly, the Commission proposes requiring that each entity certified under the pilot program re-apply for certification or notify the Commission of its intent not to participate under the permanent program within 30 days after the effective date of the permanent rules. The rules will be effective upon notice in the Federal Register announcing Office of Management and Budget (OMB) approval of the information collection requirements subject to the Paperwork Reduction Act. The Commission seeks comment on this proposal. Alternatively, should the Commission require each entity to certify that it continues to satisfy all current certification criteria that the Commission retains under the permanent NDBEDP, to demonstrate its ability to meet any new criteria the Commission may establish, and to affirm its commitment to comply with the permanent NDBEDP rules that the Commission adopts? In addition, the Commission proposes to permit other entities to apply for certification as the sole authorized entity for a state to distribute equipment under the NDBEDP during the 30-day time period following the effective date of the permanent rules. The Commission seeks comment on this proposal.

17. Consistent with the Commission's requirements for TRS providers, the Commission proposes to require each state program, once certified, to report any substantive change to its program within 60 days of when such change occurs. The Commission proposes that substantive changes include those that might bear on the qualifications of the entity to meet the Commission's criteria for certification, such as changes in the entity's ability to distribute equipment across its state or significant changes in its staff and facilities. The Commission seeks comment on this proposal and the types of substantive changes that should trigger such notice to the Commission. The Commission also seeks comment on the extent to which this requirement would help to ensure that programs continue to meet the Commission's criteria for certification when substantial changes are made.

18. Finally, the Commission proposes that one year prior to the expiration of each five-year certification period, a certified program intending to stay in the NDBEDP be required to request renewal of its certification by submitting to the Commission an application with sufficient detail to demonstrate its continued ability to meet all criteria required for certification, either directly or in coordination with other programs or entities. This approach is consistent with the TRS certification rules for state TRS providers. The Commission seeks comment on this proposal. In addition, the Commission proposes to permit other entities to apply for certification as the sole authorized entity for a state to distribute equipment under the NDBEDP one year prior to the expiration of a certified entity's five-year certification period. The Commission seeks comment on this proposal.

19. Under the pilot program rules, the Commission may suspend or revoke a certification if it determines that such certification is no longer warranted after notice and opportunity for hearing. The Commission seeks comment on whether, in place of an opportunity for an administrative hearing, there are alternatives that would provide programs an opportunity to be heard, such as a reasonable time to present views or objections to the Commission in writing before suspension or decertification. The Commission's interest in finding an alternative stems from its concern that a requirement for a hearing could unintentionally result in eligible residents being denied equipment pending this administrative action. Would providing a program with reasonable time to present its views and objections to the Commission in writing satisfy due process requirements and enable the Commission to take action without undue delay?

20. The Commission has not initiated any decertification proceedings under the pilot program. When state programs have voluntarily relinquished their certifications, the Bureau has released public notices to invite applications to replace these entities, selected replacements after careful review of the applications received, and released a second public notice announcing the newly-certified entities. In addition to releasing such public notices, should the Commission take other measures to notify consumers in the affected states when a certified entity exits the program and a replacement is selected? For example, should the Commission require the formerly certified entity to notify consumers in their states who received equipment or who have applied to receive equipment about the newly-certified entity? The Commission seeks comment on how best to ensure that consumers are aware when these changes are made to their state NDBEDP programs.

21. Under the NDBEDP pilot program, state programs must submit reimbursement claims to the TRS Fund Administrator and reports to the Commission. Currently, reports from state programs are presented to the Commission with inconsistent formatting, making aggregation of data difficult and inefficient. The Commission proposes that a centralized national database be created to assist state programs in the generation of their reports to the Commission, to enable the submission of those reports electronically to the NDBEDP Administrator, and to allow for the aggregation and analysis of nationwide data on the NDBEDP. To ensure that all of the information collected can be aggregated and analyzed for the effective and efficient operation of the NDBEDP, the Commission further proposes that, if the Commission adopts this approach, all certified programs be required to use the centralized database for their reporting obligations. The Commission seeks comment on these proposals. Do NDBEDP stakeholders agree that these advantages would accrue from utilizing a centralized database? The Commission also seeks comment generally on the costs and any other benefits or disadvantages that would be associated with both the establishment and maintenance of such a database. Further, the Commission seeks comment on any lessons learned from other experiences setting up databases and whether a centralized database could be used for other purposes or programs.

22. Much of the data needed to generate reimbursement claims is also required to generate the required reports. Because the data overlap, the Commission also proposes that the centralized database be available to assist state programs in generating their reimbursement claims for submission to the TRS Fund Administrator. The Commission seeks comment on this proposal. Would having the centralized database available to generate reimbursement claims lead to faster reimbursement and benefit state programs in other ways? The TRS Fund Administrator is currently able to aggregate reimbursement claim data, even in the absence of a centralized database. For this reason, the Commission proposes to enable and permit, but not require, certified programs to use the centralized database to generate reimbursement claims. Alternatively, would requiring all certified programs to use the centralized database for their claims make the process of aggregating reimbursement claim data more efficient? Could reimbursement claim data be transmitted electronically from the centralized database to the TRS Fund Administrator, along with the necessary supporting documentation? The Commission seeks comment on the costs and benefits of utilizing the centralized database to facilitate the creation of reimbursement claims, as well as the best approach for utilizing this database to ensure the effective and efficient oversight of the permanent NDBEDP.

23. The Commission also seeks comment about the type of data that state programs should be required to input into a centralized database. In order for state programs to generate reimbursement claims under the pilot NDBEDP, they must submit the costs of equipment and related expenses (including maintenance, repairs, warranties, refurbishing, upgrading, and replacing equipment distributed to consumers); assessments; equipment installation and consumer training; loaner equipment; state outreach efforts; and program administration. Should this same data be entered into the database? Are there other types of data that should be populated into the database for the purpose of generating reimbursement claims? Similarly, what data should be input by state programs to the database to effectively generate reports about state program activities? Under the Commission's current rules, state programs must report to the Commission information about equipment recipients and the people attesting that those individuals are deaf-blind; the equipment distributed; the cost, time and other resources allocated to various activities; the amount of time between assessment and equipment delivery; the types of state outreach undertaken; the nature of equipment upgrades; a summary of equipment requests denied and complaints received; and the number of qualified applicants on waiting lists to receive equipment. To the extent that the Commission continues requiring that such data be reported in the permanent NDBEDP, should certified programs be required to input all of this data into the centralized database?

24. Should certain data be excluded from the centralized database, and if so, why? For example, even though the Commission complies with the requirements of the Privacy Act with respect to the protection of personally identifiable information that the Commission receives in connection with the NDBEDP, would it be more appropriate for state programs to maintain records of names and addresses of their equipment recipients, along with the identity of the people who attest that those recipients are deaf-blind, rather than put this information into a centralized location? Should individuals who receive equipment instead be given a unique identifying number, which could be entered into the database in lieu of their names and other personally identifiable information? Additionally, the Commission seeks comment on whether any certified program may be prohibited by state regulation from storing data out of state and whether these prohibitions would prevent the input of the types of data described above—or any other related types of data—into a centralized database. Are there any other reasons that any of the currently certified programs would not be able to comply with requirements for the submission of such data into a centralized system? What are the costs and benefits of gathering the categories of information listed above?

25. The Commission proposes to permit the NDBEDP Administrator and other appropriate FCC staff to search this database and generate reports to analyze nationwide data on the NDBEDP, and seeks comment on this proposal. To what extent should a certified program also be permitted access to the database to execute searches of data that it did not input into the database? For example, if the Commission permits entry of data on deaf-blind individuals receiving equipment, should a certified program be permitted to conduct a search to determine whether the applicant is receiving equipment and services from another state? Similarly, should a certified program be permitted to access the database to determine the types of equipment being distributed by other states or the length of time typically used for assessments and training by other certified programs? The Commission proposes that access to the NDBEDP centralized database be limited to authorized entities, and be permitted only under tightly controlled conditions. To ensure the privacy and confidentiality of financial and other sensitive information about consumers that may be entered into the database, the Commission seeks comment on which entities and under what conditions those entities should be permitted access to the database. The Commission proposes that the database administrator be tasked with establishing procedures, protocols, and other safeguards, such as password protection and encryption, to ensure database access is in fact restricted according to the Commission's guidelines. The Commission seeks comment on this approach, and the extent to which the NDBEDP Administrator should be given some discretion to determine when entities other than the Administrator or FCC staff can access the database.

26. Decisions regarding information to be included in a centralized database used for administration of the program and the individuals who may be granted access to the database can raise questions regarding compliance with Government-wide statutory and regulatory guidance with respect to privacy issues and the use of information technology. Parties commenting on the centralized database should ensure that their recommendations are consistent with Government-wide privacy and information technology statutory and regulatory guidance.

27. The Perkins School for the Blind (Perkins), which provides database services for 32 certified programs, estimated that the cost of establishing and maintaining an NDBEDP centralized database will be between $285,000 and $380,000 annually. The Commission seeks comment on whether this amount of funding will be sufficient to perform the proposed functions of the database, and whether there will be start-up costs that result in higher costs during the first year of the database's operations. If the Commission does not develop its own database for the NDBEDP, the Commission proposes to authorize the Bureau to set aside up to $380,000 per year from the NDBEDP's annual allocation for the development of the database during the last year of the pilot program to enable the implementation of the database functions for the permanent NDBEDP in a timely manner. If this approach is adopted, certified programs now paying to use an existing database, the costs of which are currently assessed against their 15% cap on administrative costs, would no longer need to do so. At the same time, the Commission proposes that certified programs continue to be permitted to seek reimbursement for the time spent entering data into and generating reports and reimbursement claims from the database as part of their administrative costs, up to the 15% cap. The Commission seeks comment on these various proposals.

28. As an alternative to undertaking the development and maintenance of an NDBEDP database using existing staff and resources, the Commission will also consider a variety of approaches to satisfy the program requirements. For example, the Commission could engage another agency with information technology experience to provide administrative support for the program including database development and maintenance through an Interagency agreement. The Commission could also procure the database through a competitive procurement. In addition, the Commission may evaluate whether to modify a contract with an existing contractor to satisfy the program requirements—either through direct performance by the main contractor or a subcontractor. Or the Commission may wish to invite entities, via a public notice, to submit applications for the development and maintenance of a centralized database, from which the Commission would then select a database administrator. The Commission will consider using a combination of any of these in-house, regulatory, or procurement strategies where efficient and lawful to do so.

29. Regardless of the precise mechanism chosen for obtaining a centralized database for the program, the Commission seeks input on the performance goals along with performance measures that should be used for this project. Other issues on which the Commission seeks input include the implementation schedule for the work; budget for the first three years of work related to the development and maintenance of the database; prerequisite experience needed for staff employed in creating and managing a complex database capable of receiving large amounts of data. The Commission also seeks input regarding database query and data mining capabilities; and database design best practices to ensure that certified programs can generate reimbursement claims and submit them electronically to the TRS Fund Administrator using the database. The Commission also seeks input on the report functionality required for the database; and best practices with respect to data management, security, privacy, confidentiality, backup, and accessibility, including compliance with section 508 of the Rehabilitation Act.

30. To participate in the NDBEDP, the CVAA requires that individuals must be “deaf-blind,” as that term is defined in the Helen Keller National Center Act (HKNC Act). 29 U.S.C. 1905(2). The Commission's NDBEDP pilot program rules also direct NDBEDP certified programs to consider an individual's functional abilities with respect to using telecommunications, advanced communications, and Internet access services in various environments when determining whether an individual is “deaf-blind.” The Commission proposes to retain this definition and seeks comment on this proposal.

31. The NDBEDP pilot program rules require that individuals seeking equipment under the NDBEDP must provide disability verification from a professional (e.g., community-based service provider, vision or hearing related professional, vocational rehabilitation counselor, educator, and medical or health professional) who has direct knowledge of and can attest to the individual's disability. Such professionals must attest, either to the best of their knowledge or under penalty of perjury, that the applicant is an individual who is deaf-blind, as that term is defined in the Commission's rules. A disability verification must include the attester's name, title, and contact information, including address, phone number, and email address. As verification of disability, certified programs may also accept documentation already in the applicant's possession, such as individualized education programs and Social Security determination letters. The Commission tentatively concludes that the Commission should retain the current requirements for verification of disability from a professional with direct knowledge or through documentation already in the applicant's possession, and seeks comment on this tentative conclusion. Nonetheless, the Commission seeks comment on whether a professional's attestation that an individual is deaf-blind should include the basis of the attesting professional's knowledge. The Commission also proposes that the disability verification must include the professional's full name, title, and contact information, including business address, phone number, and email address. The Commission seeks comment on this proposal. Finally, the Commission asks whether certified programs should be required to re-verify an individual's disability eligibility each time the recipient applies for new equipment, or whether there is a period of time after an initial verification that such verification should be deemed sufficient to prove disability in the event that the recipient seeks additional equipment. For this purpose, the Commission proposes to require certified programs to re-verify an individual's disability eligibility when the individual applies for new equipment three years or more after the program last verified the individual's disability. The Commission seeks comment on this proposal.

32. To participate in the NDBEDP, the CVAA requires that individuals must be “low income.” The NDBEDP pilot program rules define low-income individuals as having “an income that does not exceed 400% of the Federal Poverty Guidelines (FPG).” 47 CFR 64.610(d)(2). In addition, the Bureau has provided guidance to state programs that defines “income” as all income received by all members of a household, and defines a “household” as any individual or group of individuals who are living together at the same address as one economic unit.

33. The Commission seeks comment on how to define the “low income” threshold for purposes of eligibility in the permanent program. Should it, for example, continue to use a threshold of 400% of the FPG like it did in the pilot program? The Commission is sensitive to concerns about the high cost of medical and disability-related expenses for this population, as well as the high cost of the equipment that these consumers need. In the NDBEDP Pilot Program Order, the Commission concluded “that the unusually high medical and disability-related costs incurred by individuals who are deaf-blind . . . together with the extraordinarily high costs of specialized [customer premises equipment] typically needed by this population, support an income eligibility rule of 400 percent of the FPG for the NDBEDP pilot program. In order to give this program the meaning intended by Congress—`to ensure that individuals with disabilities are able to utilize fully the essential advanced technologies that have developed since the passage of the ADA and subsequent statutes addressing communications accessibility'—we must adopt an income threshold that takes into account these unusually high medical and disability-related expenses, which significantly lower one's disposable income.”

34. The Commission notes that, in 2013, the median household income in the United States was $52,250. Can the Commission define a household as “low income” if its income exceeds the median? Should the Commission use the median as a cap on eligibility, or just adopt the median as a threshold? Alternatively, how do other federal programs define “low income” households? For example, the FCC's low-income universal service program (known as Lifeline) defines a household as low income only if it is below 135% of the FPG (or the household qualifies for one of several federal low-income programs). Should the Commission adopt that threshold here? What effect would adjusting the income eligibility threshold have on otherwise-eligible deaf-blind individuals? As the program approaches the maximum funding level each year, what effect would adjusting the income eligibility threshold have on prioritizing scarce resources?

35. The Commission seeks comment on whether “taxable income”—rather than total, gross, or net income—be used to determine eligibility, while retaining the limitation that such income not be greater than 400% of the FPG. For these purposes, the Commission seeks comment on whether the term “taxable income” should be defined as gross income minus allowable deductions, as defined by the U.S. Tax Code. In other words, taxable income for the purposes of the NDBEDP would be the amount that is used to compute the amount of tax due. The amount of tax due may be offset further by tax credits, but tax credits do not alter the amount of your taxable income. The Commission seeks comment on how to address non-disability related exemptions or exclusions in the tax code. For example, should otherwise-non-taxable municipal-bond income be included in a household's taxable income for purposes of eligibility? Should mortgage-interest deductions or state-income-tax deductions be included? The Commission asks whether this modification appropriately considers an applicant's disability-related and medical expenses, given that taxable income includes allowable deductions for such expenses for individuals who itemize their deductions. For those individuals who do not itemize deductions, in addition to the basic standard deduction, an additional standard deduction is permitted for individuals who are blind, which may help to ameliorate the burden of additional expenses incurred by such individuals and result in less taxable income. The Commission asks for comment as to whether this would address these cost concerns, without conflicting with statutory limitations and congressional intent, or if there are other proposals that might achieve this goal. The Commission also asks whether this approach will impose any additional administrative burdens on either the certified programs or consumers, and whether those burdens are justified by the benefits of adopting these financial eligibility criteria. The Commission also seeks comment on how other federal programs define income for determining whether a household is “low income” and whether any other federal program uses “taxable income” for that purpose.

36. The Commission also addresses concerns about its use of household income in lieu of personal income to determine income eligibility for the NDBEDP, because the former can result in disqualification of adult applicants who live in multi-person households and other adult applicants who are not dependent financially. The Commission proposes to clarify that multiple adults living together as roommates or in a multi-person home are not an “economic unit” and therefore not a “household” for purposes of determining income eligibility. An “economic unit” consists of all adult individuals contributing to and sharing in the income and expenses of a household. In situations where an adult applicant lives in a multi-person home but does not have access to the financial resources of others, he or she is not “contributing to and sharing in the income and expenses” of the group but instead maintaining financially distinct identities despite a shared living space. In contrast, where an adult applicant is financially dependent on another adult or their finances are intertwined (as with a spouse), the incomes of all members of that household must be considered. The Commission asks for comment on this approach or alternatives to this approach that would be consistent with the congressional mandate requiring the NDBEDP to serve only low-income individuals.

37. The NDBEDP pilot program rules allow automatic income eligibility for individuals enrolled in federal subsidy programs with income thresholds that do not exceed 400% of the FPG. When applicants are not already enrolled in a qualifying low-income program, low-income eligibility must be verified by the certified program using appropriate and reasonable means, for example, by reviewing the individual's most recent income tax return.

38. The Commission tentatively concludes that it should continue permitting individuals enrolled in federal subsidy programs with income thresholds lower than 400% of the FPG to be deemed income eligible for the NDBEDP. The Commission believes that this approach is reasonable and reliable, simplifies the income verification process for applicants and certified programs, and is consistent with the approach adopted for its Universal Service low-income program. Further, the Commission proposes to continue to require certified programs to verify low-income eligibility using appropriate and reasonable means, for example, by reviewing the individual's most recent income tax return, when applicants are not already enrolled in a qualifying low-income program. The Commission seeks comment on these proposals. The Commission seeks comment on whether a third-party should determine income eligibility just as the Commission proposes to retain the requirement for a third party to verify an individual's disability. If the Commission decides to use a third party to verify income, it seeks comment on whether this should be done by a state agency, such as during the time of enrollment in other programs, or through another mechanism. The Commission seeks comment on the potential impact on program applicants and the potential costs and benefits of doing so, including the potential administrative savings to the programs of relieving them of this responsibility. The Commission further notes that it's Universal Service low-income program lists, as acceptable documentation to prove income eligibility, “the prior year's state, federal, or Tribal tax return; current income statement from an employer or paycheck stub; a Social Security statement of benefits; a Veterans Administration statement of benefits; a retirement/pension statement of benefits; an Unemployment/Workers' Compensation statement of benefit; federal or Tribal notice letter of participation in General Assistance; or a divorce decree, child support award, or other official document containing income information.” 47 CFR 54.410(b)(1)(i)(B). Would these forms of documentation be appropriate to prove income eligibility for NDBEDP equipment recipients? Additionally, the Universal Service low-income program rules specify that, if the documentation presented “does not cover a full year, such as current pay stubs, the [applicant] must present the same type of documentation covering three consecutive months within the previous twelve months.” 47 CFR 54.410(b)(1)(i)(B). Should such eligibility criteria be applied across all certified programs nationwide? Finally, the Commission asks whether certified programs should be required to re-verify an equipment recipient's income eligibility when that individual applies for new equipment. Is there is a period of time following an initial verification that such income verification should be deemed sufficient if the recipient seeks additional equipment? For this purpose, the Commission proposes to require certified programs to re-verify an individual's income eligibility when the individual applies for new equipment one year or more after the program last verified the individual's income. The Commission seeks comment on this proposal.

39. To ensure that the equipment provided will be usable, the Commission proposes to continue, under the permanent NDBEDP, to permit certified programs to require that NDBEDP equipment recipients demonstrate that they have access to the telecommunications, advanced communications, or Internet access services (Internet or phone service) that the equipment is designed to use and make accessible. Considering the unemployment and underemployment challenges of the population sought to be served by the NDBEDP, the Commission also proposes, under the permanent NDBEDP, to prohibit certified programs from imposing employment-related eligibility requirements for individuals to participate in the program. The Commission seeks comment on these proposals.

40. In the pilot NDBEDP, the Commission granted states considerable flexibility in deciding how best to distribute equipment and provide related services to as many of their eligible residents as possible, given their jurisdiction's demographics and the inherent constraints of NDBEDP funding allocations, qualified personnel, time, and other limited resources. The Commission proposes to continue following this approach because it believes it has been effective in allowing states to address the wide range of variability that exists within and between state populations and resources, as well as the diversity within the population of individuals who are deaf-blind. The Commission seeks comment on this proposal. Should the Commission take measures to prioritize the use of funding in the event that demand for funding exceeds the $10 million funding limitation? If so, for what purpose and when should priorities be set? For example, should priorities be designed to maximize the number of equipment recipients per year or the number of new equipment recipients per year or both? Should the Commission consider taking measures to target the lowest-income individuals? For example, should the Commission consider lowering the income eligibility threshold? Should the Commission consider establishing caps on the amount of equipment or related services an individual may receive to achieve that goal? The Commission seeks comment on these or other alternatives the Commission should consider to maximize the number of low-income consumers who can receive equipment under the permanent program.

41. At the same time, the Commission acknowledges a need for greater transparency with respect to any unique criteria or priorities used by state programs for the distribution of equipment and related services. The Commission, therefore, proposes that each certified program be required to make public on its Web site, if one is maintained by the certified program, or as part of its other local outreach efforts, a brief narrative description of any criteria or priorities that it uses to distribute equipment, as well as strategies established to ensure the fair distribution of equipment to eligible applicants within its jurisdiction. The Commission seeks comment on whether this proposal would assist consumers to better understand what benefits they may be able to secure from their state programs. The Commission also seeks comment on whether the administrative burdens of such an approach would be outweighed by its benefits.

42. The Commission cautions, however, that strategies to serve eligible applicants in a state must be consistent with the NDBEDP rules. For example, a certified program whose state education department provides deaf-blind students with all of the communications equipment and related services they need may determine that it should focus its NDBEDP resources to meet the needs of low-income deaf-blind adults. The Commission believes this would be consistent with the principle, adopted in the NDBEDP Pilot Program Order, that the NDBEDP is supplementing rather than supplanting other resources. However, a program restriction disallowing the distribution of equipment to any persons under the age of 18 could exclude otherwise eligible deaf-blind individuals in need of this equipment. The Commission tentatively concludes that state programs generally should not be permitted to adopt such sweeping limitations, and seeks comment on this tentative conclusion. In addition, the Commission proposes to require certified programs to serve eligible applicants of any age whose communications equipment needs are not being met through other available resources and the Commission seeks comment on this proposal. Finally, the Commission seeks comment on whether it should address in its rules for the permanent NDBEDP any other specific state program restrictions that currently exclude individuals who may otherwise qualify for NDBEDP equipment and related services.

43. During each year of the pilot program, the Commission has set aside $500,000 of the $10 million available annually for national outreach efforts to promote the NDBEDP. Significant initial funding for outreach was necessary to launch the pilot program, because eligible individuals needed to become informed about the availability of the program before distribution of equipment could take place. Accordingly, in addition to permitting the state programs to use some of their funding for outreach to their communities, the Commission authorized national outreach efforts to supplement those local efforts. The Bureau selected Perkins to conduct this national outreach. This outreach effort by Perkins, in partnership with others, has resulted in an NDBEDP (“iCanConnect”) Web site that promotes the NDBEDP, provides information about and referral to state programs, shares news about the program and personal stories of equipment recipients, and includes an overview of the types of communications equipment the program can provide. The national outreach effort has also resulted in the establishment of an 800 number and a call center for program inquiries and referrals, marketing materials for and monthly conference calls with state programs, social media presence, and public service announcements (PSAs), as well as advertisements on billboards and in magazines.

44. Based on both the extensive efforts of the national outreach program to alert and educate consumers about the availability of NDBEDP equipment through state programs, and the generally high praise for these efforts conveyed by others, the Commission proposes to continue funding for national outreach efforts as part of the permanent program and for the NDBEDP Administrator to oversee these efforts. The Commission will consider a variety of approaches to satisfy the national outreach requirements for the program including using existing Commission staff and resources, engaging another agency with expertise in this area through an Interagency agreement, acquiring these services through a competitive procurement, evaluating whether to modify a contract with an existing contractor to satisfy the program requirements—either through direct performance by the main contractor or a subcontractor. The Commission may also wish to invite entities, via a public notice, to submit applications for the role of national outreach coordinator. The Commission will consider using a combination of any of these in-house, regulatory, or procurement strategies where efficient and lawful to do so. Regardless of the precise approach used to obtain national outreach services, the Commission seeks input on the performance goals along with performance measures that would be helpful in facilitating oversight of national outreach efforts.

45. At the same time, the Commission believes that, because national outreach efforts, combined with state and local outreach efforts conducted by certified programs, have made significant progress in publicizing the NDBEDP, less national outreach may be needed going forward. The Commission therefore proposes to reduce the amount of money spent on national outreach to $250,000 for each of the first three years of the permanent program, and seeks comment on this proposal. Do commenters agree that this reduction in the national outreach allocation is appropriate given the limited amount of annual funding available to the NDBEDP and, if so, would $250,000 per year be an appropriate level of funding? What effect would such a reduction in funds have on the types of national outreach efforts that were made under the pilot program? For example, will this amount of money be sufficient to continue the outreach activities that Perkins identifies as “critical,” including maintenance of the iCanConnect Web site; the 800 number and call center; marketing materials; monthly conference calls; and support to states to gather and promote success stories? How can the Commission ensure that these or other national outreach efforts undertaken under the permanent program are cost effective? Should the Commission conduct an assessment during the third year to determine whether and to what extent to continue such funding support beyond this period? Will two years be sufficient to gather the data necessary to make this determination during the third year? If the Commission takes this approach, it seeks comment on how it should, in the third year, evaluate the efficacy of national outreach efforts for this purpose.

46. The Commission seeks comment on whether national outreach efforts should target specific groups, such as American Sign Language users, non-English language users, and medical and elder service professionals and, if so, why. Would the proposed reduction in funding limit national outreach to these targeted groups? Should other populations be targeted? What specific methods of communication or activities should be used to reach these groups? How can the Commission ensure that outreach reaches eligible consumers who do not specifically identify as deaf-blind? The Commission also seeks comment on whether and to what national outreach should be coordinated with the state program efforts, including the costs and benefits of having to take such measures.

47. Finally, performance goals should be defined for the national outreach program along with performance measures that are clearly linked to each performance goal. Evaluating a program against quantifiable metrics is part of the Commission's normal oversight functions. As such, the Commission seeks input on the data it should collect in order to effectively oversee the outreach efforts. Should the Commission collect data on factors such as increases in the number of program participants, inquiries through the 800 number/call center, referrals through the iCanConnect Web site, consumer applications to state programs, the proportion of consumers in specified groups, such as by age or language spoken, Web site traffic, growth in social channels, and media impressions? If so, at what intervals are reports on such data useful?? What are the costs and benefits of collecting and evaluating this data? Commenters should explain the connection between performance measures proposed and clearly defined program goals.

48. In addition to setting aside $500,000 per year for national outreach during the pilot program, the Commission has required certified programs participating in the pilot program to conduct local outreach to inform state residents about the NDBEDP, and has provided reimbursement for the reasonable costs of this outreach. Given the overwhelming endorsement of such efforts in the record, the Commission tentatively concludes that it should continue to require certified programs participating in the permanent NDBEDP to conduct outreach to state residents, and to reimburse these programs for the reasonable costs of such outreach. The Commission seeks comment on this tentative conclusion.

49. The Commission also seeks comment on the level of funding for state and local outreach that should be considered reasonable for purposes of reimbursement under the permanent NDBEDP. Overall, certified programs spent a combined average of approximately 10% of their total fund allocations on state and local outreach during the second year of the pilot program. Given that outreach activities at the state level have made significant progress in publicizing the NDBEDP, the Commission proposes that such outreach expenditures be capped at 10% of each state's funding allocation during the first two years of the permanent program, after which the Commission proposes that the NDBEDP Administrator be required to reassess this level of funding authorization. The Commission seeks comment on these proposals, as well as the specific metrics and criteria that should be used to evaluate the success of these outreach efforts, such as the percentage of a state program's funding allocation actually used. How can the Commission ensure that local outreach efforts undertaken under the permanent program have met such metrics, and are cost effective? Are there other criteria, including the criteria proposed above for the assessment of national outreach activities, that can be applied to evaluating the success of state outreach efforts?

50. Finally, in the NDBEDP Pilot Program Order, the Commission explained that state and local outreach may include the development and maintenance of a program Web site that contains information about the NDBEDP certified program, contact information and information about available equipment, as well as ways to apply for that equipment and related services provided by the program. The Commission believes such Web sites have been very helpful in both informing state residents about the existence of the NDBEDP and instructing them on how to apply for equipment and related services from their local programs. The Commission tentatively concludes that its rules should continue to allow reimbursement for the development and maintenance of a program Web site. The Commission also required that the outreach information and materials that a certified program disseminates to potential equipment recipients be provided in accessible formats and it tentatively concludes that its rules should continue to require accessible outreach materials. The Commission notes that certified programs already are required to ensure accessibility under the Americans with Disabilities Act. See 42 U.S.C. 12131-12134 (state and local government services), 12181-12189 (public accommodations and services operated by private entities). The Commission seeks comment on these proposals and any other matters regarding state and local outreach.

51. Under the NDBEDP pilot program, the Commission's rules permit reimbursement for the reasonable costs of individualized assessments of a deaf-blind individual's communications needs by qualified assistive technology specialists. Reimbursable assessment costs under the pilot program include the reasonable travel costs of state program staff and contractors who conduct assessments and provide support services (such as qualified interpreters). Individual assessments are needed to ensure an appropriate match between the particular type of technology distributed and the unique accessibility needs of each consumer, given the wide range of abilities and hearing and vision disabilities across the deaf-blind population. Further, the Commission continues to believe that reimbursement of the reasonable costs of travel by program staff and contractors to conduct assessments of individuals located in rural or remote areas is necessary to achieve the goal of accessible communications under the CVAA. The Commission tentatively concludes that the permanent NDBEDP should continue to permit reimbursement for these assessment and related travel costs, and seeks comment on this tentative conclusion. The Commission asks commenters who do not believe that such funding support should be continued to explain why it should be discontinued. Further, the Commission asks how it can ensure that conducting assessments under the permanent program is cost effective or how it can improve the cost effectiveness of such assessments. The Commission also seeks comment on any other matters related to conducting individualized assessments under the NDBEDP.

52. The Commission presently does not allow reimbursement for the costs of deaf-blind consumers traveling to the assessor's location. The record shows that, in some instances, it would be preferable for consumers to travel to a location away from their homes, such as to the state program's office, to have their needs assessed before receiving equipment. The Commission proposes to allow but not require certified programs to pay for and request reimbursement for the reasonable costs of in-state travel for consumers (and their support service providers, if needed) when doing so would be more efficient and effective than conducting the assessment in the consumer's home. Would allowing such coverage benefit consumers, for example, by making a wideessors or support services? Should there be a cap on the amount a state program can spend on assessment-related cr array of communication devices available for such assessments? To what extent would allowing these costs provide consumers with access to more skilled assonsumer travel? To what extent should the Commission's rules define the permissible costs that would be considered reasonable for such travel, and what costs should be considered “reasonable”? Are there other federal programs that are instructive with respect to addressing similar travel costs? The Commission assumes that most travel could occur from the consumer's location to the NDBEDP center and back to the consumer's location within a single day, given that travel is within a single state, and seeks comment on whether this assumption is correct. For example, what is the average distance and duration for consumers to travel to the assessment location? How likely is it that a consumer would need overnight lodging for the purpose of completing such assessment, and if such lodging is necessary, should this be covered by NDBEDP funds? To what extent have consumers traveled to another location for the purpose of obtaining assessments at their own expense during the pilot program, and to what extent are they likely to need such travel in the future? Are certified programs already paying for consumer travel, without seeking reimbursement for those costs? Are state programs able to estimate projected costs for future consumer travel if the Commission's proposal to permit these costs is adopted? Are any of these expenses able to be reimbursed by other federal programs?

53. Although the Commission believes that reimbursing programs for the reasonable costs of consumer travel and support service providers, when needed and appropriate, can benefit both consumers and certified programs, given the limited NDBEDP funding available to each certified program, the Commission is hesitant to allow such compensation without the careful review and prior approval of each program pursuant to clearly defined guidelines. The Commission therefore proposes that a consumer's travel costs be reimbursed only if those costs are first pre-approved by the certified program, which should occur only after a determination by the program that the reasonable costs of this travel would be more efficient and effective than having the assessor travel to the consumer. Moreover, the Commission seeks comment on specific guidelines certified programs should follow or factors they should consider to make such determinations. For example, how should certified programs weigh possible benefits to a consumer that travels to receive an assessment (e.g., to try out a variety of equipment or receive a more timely assessment), against a comparison of program personnel travel versus consumer travel costs? Finally, the Commission proposes that pre-approval for such travel costs by the NDBEDP Administrator not be required, but may be requested by state programs, particularly if they have questions as to whether the requested travel would comport with the established guidelines. The Commission suggests this approach because it believes that state programs are in the best position to know when consumer travel is either necessary or will achieve the best efficiencies for its program. The Commission seeks comment on these and any other matters related to the reimbursement for the cost of consumers' in-state travel for purposes of obtaining assessments.

54. The Commission seeks comment on the reasons that a consumer may need to travel out-of-state for an assessment, and the number of consumers who already do so or are likely to do so, if reimbursement were allowed. Because the costs of traveling greater distances are likely to be higher than for in-state travel, should certified programs be required to seek pre-approval from the NDBEDP Administrator for out-of-state travel to ensure that the costs are reasonable? The Commission seeks comment on these and any other matters related to the need for and appropriateness of having the NDBEDP reimburse state programs for the out-of-state travel expenses of consumers relating to assessments.

55. The NDBEDP provides support for the distribution of specialized customer premises equipment needed to make telecommunications services, Internet access service, and advanced communications, including interexchange services and advanced telecommunications and information services accessible to people who are deaf-blind. Under the NDBEDP pilot program, the Commission reimburses certified programs for the reasonable cost of equipment, which may be hardware, software, or applications, separate or in combination, mainstream or specialized, as long as it meets the needs of the deaf-blind individual to achieve access to NDBEDP covered services. Certified programs may not impose restrictions on the types of communications technology that a recipient may receive, disable features or functions needed to access covered services, or accept financial arrangements from a vendor that could incentivize the purchase of particular equipment. Certified programs may lend or transfer ownership of the distributed equipment to eligible recipients, but must prohibit recipients from transferring equipment received under the NDBEDP to another person through sale or otherwise. Certified programs are permitted to distribute multiple pieces of equipment to eligible consumers, as needed. Equipment-related expenses, including maintenance, repairs, warranties, returns, maintaining an inventory of loaner equipment, as well as refurbishing, upgrading, and replacing equipment distributed to consumers are also reimbursable. When a recipient relocates to another state, certified programs must permit the transfer of the recipient's account and any control of the distributed equipment to the new state's certified program. The Commission did not establish equipment or funding caps for individual recipients during the pilot program. Rather, certified programs may distribute more than one device to an individual, within the constraints of the state's annual funding allocation and the desire to make communications accessible for as many individuals who are deaf-blind as possible.

56. The Commission tentatively concludes that it should retain all of the equipment distribution provisions of the NDBEDP pilot program noted above. The Commission believes that placing restrictions on the number of devices that each recipient should be permitted to receive or the frequency with which they should be allows to receive them at this time would be inconsistent with the goal of the program to ensure access to communications services to all eligible low-income individuals who are deaf-blind. The better approach, the Commission believes, is to continue allowing the flexibility inherent in the existing provisions, which permits each certified program to determine how many pieces of equipment to provide and with what frequency, to meet the varied needs of the individuals in their communities. The Commission seeks comment on this approach. The commission also seeks comment on how it can ensure that the purchase of equipment under the permanent program is cost effective or how it can improve the cost effectiveness of such equipment purchases. The Commission further invites comment on whether certified programs should be required to reassess the communications needs of an equipment recipient when new issues, such as developmental, medical, or other changes, result in equipment no longer meeting the recipient's needs. The Commission also seeks comment on alternatives that might address these concerns.

57. The record reflects a desire that the centralized database contain a functionality that lists and frequently updates types of compensable equipment, and that allows certified programs, consumers, and industry to post suggestions for new equipment for consideration and evaluation, as well as comments, information, instructions or suggestions regarding existing equipment. The Commission notes that the database proposed in the NPRM, if established, will be populated with information about equipment that has been distributed by certified programs across the country. If the Commission extends its pilot program reporting rules, this information will include the equipment's name, serial number, brand, function, and cost, the type of communications service with which it is used, and the type of relay service it can access. The Commission seeks comment on whether certified programs should be permitted to query the proposed database to generate a list of equipment that has been provided through the NDBEDP. In addition, the iCanConnect Web site, which is maintained as part of the NDBEDP national outreach effort, provides general information about different kinds of equipment that may be provided under the NDBEDP. The iCanConnect Web site also provides consumers with examples of specific communication devices commonly used by people who are deaf-blind, and therefore are likely to be reimbursable through the NDBEDP. Given the speed with which technology evolves, the Commission proposes that this list be kept reasonably up to date, though it need not be exhaustive. The Commission seeks comment on this approach and whether the iCanConnect Web site should provide other functionalities for state programs and consumers to aid in their equipment selection, such as the ability to compare and contrast different communication devices used by people who are deaf-blind. Should consumers be able to comment on equipment and, if so, to what extent should the comments be moderated, and by whom? How can the information about specific devices be kept up to date? Should equipment updates be provided by the Web site administrator, certified programs, consumers, industry, or all of the above? What are the costs and benefits of such functionalities, and would they be achievable with the amount of national outreach funding proposed in the NPRM?

58. The Commission cautions, however, that the appearance of a specific piece of equipment in the centralized database or on the iCanConnect Web site will not automatically make it eligible for reimbursement for all applicants. Rather, because equipment distribution determinations must be made based on individual case-by-case assessments, it is difficult, if not impossible, to identify specific types of equipment that will be reimbursable for all eligible applicants. Indeed, the same piece of equipment may be suitable for one individual, yet inappropriate for another. Thus, the Commission proposes that equipment reports produced by the centralized database, as well as equipment listings on the iCanConnect Web site, include a clear and conspicuous notice that the selection of and reimbursement for any piece of equipment distributed under the NDBEDP must be based on an individual case-by-case assessment and consistent with the NDBEDP rules. Consistent with this principle, under the pilot program, when it is not obvious that the equipment can be or is commonly used by individuals who are deaf-blind to access covered services, certified programs have been required to support their reimbursement claims with documentation that describes how the equipment they distribute makes telecommunications, advanced communications, or the Internet accessible to the individual who is deaf-blind. The Commission proposes that this requirement be carried into the permanent program. The Commission further proposes that certified programs be permitted to continue consulting with the NDBEDP Administrator about whether the NDBEDP will reimburse the cost of a particular piece of equipment for an eligible individual before purchasing the equipment. The Commission seeks comment on these proposals.

59. Finally, the Commission asks how certified programs can ensure that the individuals they serve do not sell or otherwise transfer the equipment they receive under the NDBEDP to another person. The Commission proposes that equipment recipients be required to execute a standard attestation that they will not sell, give, lend, or transfer their interest in any equipment they receive under this program. For this purpose, and to ensure the truthfulness and accuracy of each consumer's application for equipment, the Commission seeks comment on the following uniform attestation that it proposes to be included on all consumer application forms. Commenters who believe alternate attestation language is appropriate should explain why such alternatives are appropriate in lieu of this proposal:

60. Should programs be required to verify on a regular basis that the equipment continues to reside in the recipient's possession? Would a requirement for such verification be burdensome or impractical, given the rapid evolution of technology, which frequently requires equipment to be upgraded or replaced on a regular basis, such as every few years?

61. The NDBEDP pilot program permits reimbursement for the reasonable costs of installing NDBEDP distributed equipment, individualized consumer training on how to use such equipment, and the reasonable travel costs of trainers and support services. Having equipment set-up and providing training in person are essential to ensuring that deaf-blind individuals effectively benefit from the NDBEDP and to prevent the underutilization or abandonment of equipment. Given its critical importance to the success of the NDBEDP and the recognition that the amount of time it takes to train individuals who are deaf-blind on new communications equipment depends on a variety of factors, including a wide range of capabilities and experiences with communications technologies, the Commission refrained from establishing caps on such training. For these same reasons, the Commission concluded that reimbursable installation and training costs under the pilot program would include the reasonable travel costs of trainers and individuals providing support services, such as qualified interpreters. The Commission proposes to continue to permit reimbursement for the reasonable costs of equipment installation, consumer training, and travel by trainers and support services, such as qualified interpreters. The Commission seeks comment on its proposal to continue providing compensation for these costs. The Commission also seeks comment on how it can ensure that installation and training conducted under the permanent program is cost effective or how it can improve the cost effectiveness of such installation and training.

62. The Commission did not permit reimbursement under the pilot program for the costs of having consumers travel to receive training. The record shows, however, that, in some instances, it is preferable for consumers to travel to a location away from their homes to get their equipment installed or to receive training. The Commission proposes that a consumer's travel costs be reimbursed only if those costs are first pre-approved by the consumer's certified program, which should occur only after a determination by the program that the reasonable costs of this travel would be more efficient and effective than in-home installation and training. The Commission seeks comment on this approach, as well as a proposal that pre-approval by the NDBEDP Administrator not be required but may be requested. The Commission also seeks comment on specific guidelines certified programs should follow or factors they should consider to make such determinations. For example, how should certified programs weigh possible benefits to a consumer that travels to receive training, against a comparison of program personnel travel versus consumer travel costs? Would allowing reimbursement for consumer travel benefit consumers, for example, by increasing training opportunities for consumers? To what extent would allowing these costs provide consumers with access to more skilled trainers or support services? Should there be a cap on the amount a state program can spend on training-related consumer travel? To what extent should the Commission's rules define the permissible costs that would be considered reasonable for such travel, and what costs should be considered “reasonable”? Are there other federal programs that are instructive with respect to addressing similar travel costs? Would consumers need to travel on more than one day for training and, if so, why? What is the average distance and duration for consumers to travel to the training location? To the extent that training needs to occur over a series of days, or the travel distance is considerable (even within the same state), should the costs of lodging and or meals be covered, or just the costs of transportation? The Commission requests certified programs to share any information they may have on the extent to which consumers have traveled to another location at their own expense, the extent to which state programs presently reimburse consumers for these costs, and to what extent they expect consumers are likely to need such travel in the future. Are state programs able to estimate projected costs for future consumer travel if the Commission's proposal to permit these costs is adopted? Are any of these expenses able to be reimbursed by other federal programs? The Commission seeks comment on these and any other matters related to the need for and appropriateness of reimbursing state programs for consumers' travel expenses relating to installation and training.

63. The Commission seeks comment on the reasons that a consumer may need to travel out-of-state for training, and the number of consumers who already do so or would do so, if reimbursement were allowed. Because the costs of traveling greater distances are likely to be higher than for in-state travel, should certified programs be required to seek pre-approval from the NDBEDP Administrator for out-of-state travel for training to ensure that the costs are reasonable? The Commission seeks comment on these and any other matters related to the need for and appropriateness of having the NDBEDP reimburse state programs for the out-of-state travel expenses of consumers relating to training.

64. In the NDBEDP Pilot Program Order, the Commission declined to set aside NDBEDP pilot program funds to cover the cost of teaching NDBEDP personnel how to train NDBEDP equipment recipients on the use of their equipment—i.e., a “train-the-trainer” program—because of the limited funding available. At the time, the Commission understood that there was a shortage of qualified individuals who could carry out this training function, particularly with respect to training NDBEDP equipment recipients who communicate receptively and/or expressively in Braille or American Sign Language. The Commission continues to believe that training individuals who are deaf-blind how to use the equipment they receive under the NDBEDP promotes access to communication and furthers the purposes of the CVAA. The current record confirms the critical importance of having sufficient numbers of qualified trainers, but notes that the current number of qualified trainers is inadequate. To address these concerns, the Commission proposes to authorize up to 2.5% of the $10 million annual funding allocation ($250,000) for each of the first three years of the permanent program to support train-the-trainer programs, including the reasonable costs of travel for such training, and the Commission seeks comment on this proposal.

65. One of the purposes of the CVAA is to help ensure that individuals with disabilities are able to fully utilize communications services and equipment. To give full effect and meaning to this purpose, and in particular to the mandate contained in section 105 of the CVAA and section 719 of the Communications Act, directing the Commission to address the unmet communications access needs of persons who are deaf-blind through a national equipment distribution program, the Commission has allowed some of the funding support provided for this program to be used for assessments, equipment installation, and consumer training. The Commission found their financial support necessary because they are essential to the efficient and effective distribution of equipment for use by people who are deaf-blind. Similarly, because equipment training cannot be achieved in the absence of qualified personnel to conduct such training, it would appear that the Commission can use its authority to financially support programs that distribute specialized customer premises equipment to low-income individuals who are deaf-blind by mitigating the current shortage of qualified training personnel through the allocation of funding for this purpose. The Commission seeks comment on the use of its authority under section 719 of the Communications Act for such purpose. Is such financial support necessary to give full effect and meaning to the CVAA's objectives and to achieve the purpose of section 719?

66. During the pilot program, the Helen Keller National Center for Deaf-Blind Youth and Adults (HKNC) established a train-the-trainer program using a grant from a private foundation, which some certified programs are using, but others cannot afford. Are additional funds available from public or private sources other than the NDBEDP for this purpose? Besides HKNC, are any other entities offering train-the-trainer programs to more than one certified program? Do such entities provide individual training, group training, and distance training through online resources, or other forms of training? Approximately how often do these programs provide training seminars or sessions? What is the cost to certified programs to attend training sessions or access training materials?

67. The Commission believes $250,000 to be reasonable and sufficient for train-the-trainer programs, and seeks comment on whether this amount is appropriate as an initial step. The Commission proposes addressing concerns about funding train-the-trainer activities to the detriment of funding for the distribution of equipment and provision of related services by re-allocating a portion of funding previously used for national outreach, discussed above in the Notice, which is less needed now than it was at the start of the pilot program. The Commission seeks comment on whether increasing the total number of qualified trainers nationwide may result in a reduction in overall program costs because the small number of currently available trainers would no longer have to travel to multiple states to provide training. The Commission also seeks comment on whether capping the annual funding at 2.5% of NDBEDP funding is advisable to preserve remaining funds for other program activities related directly to the distribution of consumer equipment. The Commission seeks comment on any other matters related to the amount of funding that should be set aside to train trainers under the permanent program.

68. The Commission seeks comment on whether providing funding support for the first three years of the permanent program will be sufficient to accomplish the desired objectives. If the Commission moves forward with this approach, should it conduct an assessment during the third year to determine whether and to what extent to continue such funding support beyond this period? Will two years be sufficient to gather the data necessary to make this determination during the third year? If the Commission takes this approach, it seeks comment on how it should, in the third year, evaluate the efficacy of train-the-trainer programs for this purpose.

69. State Allocations for Train-the-Trainer Programs. Next, the Commission seeks comment on how NDBEDP support can be used to teach individuals how to train NDBEDP equipment recipients on the use of their equipment. The Commission proposes to allow certified programs to use a portion of their NDBEDP funding allocations for train-the-trainer activities as they deem appropriate. For example, under this approach, each certified program could use approximately 2.5% of its annual allocation, or a maximum of $250,000 annually for all certified programs, for train-the-trainer activities. The Commission seeks comment on this proposal. Should these train-the-trainer expenditures be treated as an administrative cost and, if so, should the Commission raise the cap on administrative costs from 15% by 2.5% to 17.5% for that purpose, rather than require separate accounting for train-the-trainer activities? Should the Commission permit such reimbursement for enrolling personnel in a train-the-trainer activity conducted by HKNC or another entity, as well as for train-the-trainer activities that the certified program may develop and conduct? If the $250,000 is allocated solely to and used by certified programs for training purposes, would that influx of money to existing training programs, such as the one operated by HKNC, be sufficient to motivate the development of new training activities? Should the Commission prohibit reimbursement for training that is provided by equipment manufacturers or vendors because of the risk of having certified programs favor these manufacturers or vendors in their selection of equipment?

70. Nationally Coordinated Train-the-Trainer Program. Alternatively, the Commission seeks comment on whether to establish or coordinate a train-the-trainer program at the national level, including the costs and benefits of having one or more entities provide train-the-trainer activities similar to those offered by HKNC. If the Commission adopts this approach, it seeks comment generally on how to use such funding. Should the amount of training provided to each certified program be equal across every state, should it be proportional to the program's NDBEDP annual funding allocation, or should it depend on population size, the current number of trainers in a state or region, or some other criteria? Should the funding provided cover the cost of individual participation in the train-the-trainer programs, including the reasonable costs of travel? Approximately how many hours of training can be delivered to how many personnel with a set-aside of $250,000?

71. If the Commission establishes or coordinates a train-the-trainer program at the national level, the Commission will consider a variety of approaches to satisfy the requirements for the program including using existing Commission staff and resources, engaging another agency with expertise in this area through an Interagency agreement, acquiring these services through a competitive procurement, evaluating whether to modify a contract with an existing contractor to satisfy the program requirements—either through direct performance by the main contractor or a subcontractor. The Commission may also wish to invite entities, via a public notice, to submit applications to establish or coordinate a train-the-trainer program. The Commission will consider using a combination of any of these in-house, regulatory, or procurement strategies where efficient and lawful to do.

72. If the Commission establishes or coordinates a train-the-trainer program, what are the essential criteria for the staff and/or entity selected to perform the role? HKNC recommends that the following criteria are essential: Experience with the target population; familiarity with Braille and Braille devices; familiarity with emerging communications technologies and end user equipment; staff who are skilled in American Sign Language as well as other communication methodologies; and a track record of multi-modal training and ability to maintain pace with the technology? Are these criteria appropriate and sufficient to make such selection? If not, what other criteria should the Commission use?

73. Regardless of whether the Commission supports a nationally coordinated train-the-trainer program or allocates funds to certified programs for train-the-trainer activities, or some combination of both, should the Commission require or permit training in a variety of formats, such as individual training, group training, and distance training through online resources? Should NDBEDP funding be used for that purpose? Should national or state entities providing training be required to establish a system for evaluating the outcomes of the training? It appears that train-the-trainer activities could ultimately lead to the increased employment of individuals with disabilities. Are there actions that the Commission could take to promote such efforts? Should the Commission encourage either national or state entities to train individuals who are deaf-blind, including NDBEDP equipment recipients, as trainers? The Commission invites comments on how best to establish and support train-the-trainer activities for the permanent NDBEDP.

74. In the NDBEDP Pilot Program Order, the Commission set aside $500,000 of the $10 million available annually for the NDBEDP for national outreach efforts during each year of the pilot program. The remaining $9.5 million of the $10 million was divided among each of the NDBEDP certified programs by allocating a minimum base amount of $50,000 for each jurisdiction plus an amount in proportion to each state's population. The Commission generally proposes to maintain the current mechanism for allocating NDBEDP funds—setting aside funds first for certain national efforts, allocating a minimum of $50,000 for each certified program, and allocating the remaining funds to the certified programs in proportion to each state's population. National efforts may include a centralized database, national outreach, and train-the-trainer activities. The Commission invites comment on its proposal to maintain the current allocation mechanism.

75. In addition, the Commission takes this opportunity to remind program participants and commenters that TRS funds, are permanent and indefinite appropriations and, like other appropriated funds, come with certain restrictions. While some of these restrictions are longstanding and codified in the United States Code, other restrictions on use of appropriated funds (including permanent indefinite appropriations) may be included in annual appropriation acts. Parties commenting on the proposals in this Notice should ensure that their recommendations are consistent with Government-wide statutory and regulatory restrictions on the use of appropriated funds.

76. Under the pilot program, the Commission delegated authority to the Bureau to reduce, raise, or reallocate funding allocations to any certified program as it deemed necessary and appropriate. During the first year of the pilot program, almost 70% of the $10 million available to support the NDBEDP was used by certified programs and for national outreach. Approximately 90% of the $10 million annual allocation was used during the second year of the pilot program. During each of the first two years of the pilot program, the NDBEDP Administrator reviewed funding data as it became available and worked with certified programs and the Bureau to reallocate funding between state programs when necessary to maximize the use of available funding.

77. During the first year of the pilot program, few entities reached or exceeded their annual allocation of funds. Only three entities requested and received additional funds. In the first half of the second year of the pilot program, the NDBEDP Administrator approved several requests for reallocations of funds from one certified entity to another (“voluntary” reallocations). During the third quarter of the second year, after notice, the NDBEDP Administrator reduced the allocations of certified programs that had not used at least half of their annual allocation and reallocated those funds to satisfy requests from certified programs that reached or exceeded their annual allocations (“involuntary” reallocations). Specifically, the formula currently used by the NDBEDP Administrator reduces by 50% the allocations of programs that have spent less than 25% during the first half of the year, and reduces by 25% the allocations of programs that have spent more than 25% but less than 50% during the first half of the year. Certified programs have an opportunity to request that the NDBEDP Administrator consider increasing or reducing the proposed change in allocation. The Commission seeks comment on this method and formula, or any alternative methods or formulas for making involuntary reallocations in the permanent NDBEDP. Commenters that suggest alternatives should explain how these would lead to effective results for the intended community and how such standards would add to the efficiency of the program. The Commission tentatively concludes that these reallocations have helped requesting programs meet their needs and have not prevented programs with decreased funding from satisfying the needs of their constituents.

78. Approximately one month after the first half of the Fund year ends, the Bureau has the requisite data from all certified programs to determine whether and to what extent involuntary funding reallocations may be appropriate. This is because, as discussed further the Notice, state programs have the option of filing their reimbursement claims on a monthly, quarterly, or semi-annual basis. The Bureau needs full information on the amounts requested by every program through the first half of the Fund year to determine the amount of remaining funds available for involuntary reallocations. Accordingly, the Commission proposes to allow voluntary reallocations between certified programs at any time during the Fund year with the approval of the NDBEDP Administrator, in consultation with the TRS Fund Administrator, as needed. The Commission also proposes to continue making involuntary reallocations as necessary when individual program performance indicates that NDBEDP funds could be more fully utilized by other certified programs. Further, the Commission proposes to continue its current practice of notifying and coordinating with the potentially impacted certified programs prior to making involuntary reallocations of funding. The Commission seeks comment on these reallocation proposals.

79. When it established the NDBEDP pilot program, the Commission considered two funding mechanisms: (1) Distributing funds to certified programs at the start of each Fund year and letting the programs use the funds as they saw fit; or (2) reimbursing programs up to each state's allocation for the equipment they distribute. The Commission concluded that the reimbursement approach was more appropriate both because it would provide incentives for certified programs to actively locate eligible participants and would achieve greater accountability and protection against fraud, waste, and abuse. Under the NDBEDP pilot program, the Commission reimburses programs for the costs incurred for authorized equipment and related services, up to each certified program's initial or adjusted allocation. Each reimbursement claim must be accompanied by a declaration made under penalty of perjury attesting to the truth and accuracy of the submission. Certified programs may elect to seek reimbursement monthly, quarterly, or semi-annually.

80. The Commission proposes to continue using the present reimbursement mechanism to fund equipment distribution and related services under the permanent NDBEDP because a system that advances funds presents challenges relating to returning or reallocating unspent funds and would result in more complicated recordkeeping, and a reimbursement mechanism is more likely to keep certified programs accountable and deter fraud, waste, and abuse. The Commission further proposes that the current requirement for certified programs to support their reimbursement claims with documentation, a reasonably detailed explanation of incurred costs, and a declaration be carried into the permanent program. The Commission seeks comment on these proposals and other guidelines that may be needed with respect to the submission and processing of reimbursement claims to ensure that certified programs operate in a cost-efficient manner and maintain the financial integrity of the program. The record reflects that there was some frustration with delays in the processing of reimbursement claims at the start of the pilot program, but the timeliness of payments has since improved. The Commission does not propose a specific period by which reimbursement claims must be paid, but notes that, when a claim is submitted with sufficient documentation and does not require further clarification, it expects the Bureau and the TRS Fund Administrator to be able to process that claim within 30 days, and claims requiring additional documentation or clarification generally will be processed within 60 days. As discussed in the Notice, the Commission proposes to permit each certified program to populate a centralized database with claim-related data, from which it may generate its reimbursement claims. Timely reimbursement is more likely to occur for claims submitted in such a uniform manner.

81. To continue meeting the individualized needs of these programs, the Commission proposes to continue allowing certified entities to elect, upon certification and at the beginning of each Fund year, whether to submit claims on a monthly, quarterly, or semi-annual basis and to require submission within 30 days after each elected period. The TRS Fund Administrator recommends that certified programs be required to submit monthly claims and to request a waiver to submit claims less frequently. Only 10 programs have elected to submit claims monthly, with the other 43 programs opting for quarterly or semi-annual schedules. The Commission seeks comment on the reasons that these 43 programs have not elected to submit claims on a monthly basis and whether all programs should be required to begin filing monthly, for example, for the sake of program consistency. Alternatively, is each certified program best suited to determine the frequency with which it needs to be reimbursed? The Commission seeks comment on the advantages and disadvantages of maintaining the current practice or whether the Commission should revise its rules to require all programs to adhere to a single schedule for filing reimbursement claims. In particular the Commission asks parties to comment on the extent to which a requirement to follow a single filing schedule would be more efficient or impose difficulties on programs with limited resources.

82. Under the Commission's rules for the NDBEDP pilot program, certified programs may be compensated for administrative costs up to 15% of their total reimbursable costs (i.e., not their total allocation) for equipment and related services. The Commission has defined administrative costs to include reporting requirements, accounting, regular audits, oversight, and general administration. To track and ensure that appropriate administrative costs are reimbursed, the TRS Fund Administrator has procedures to “bank” reimbursement claims for administrative costs that exceed 15% of reimbursable costs and to pay those claims later if the amount of reimbursable costs increases with later submissions.

83. Given the general accomplishments of the 53 certified programs in distributing communications equipment to their deaf-blind residents, the Commission is no longer concerned that basing the cap of administrative costs on the full funding allocation for each certified program will eliminate the necessary incentives to carry out the NDBEDP's objectives. Accordingly, the Commission proposes to reimburse administrative costs as they are incurred and claimed, based on the annual allocation rather than the amount of reimbursable costs, thereby eliminating the need for the TRS Fund Administrator to “bank” unearned administrative costs. The Commission seeks comment on that proposal.

84. The Commission further acknowledges that some programs have reported operating at a loss as a result of the 15% cap on administrative expenses, and recognizes that this could potentially act as a disincentive to participate in the NDBEDP. During the second year of the pilot program, certified programs that exceeded the 15% cap had about 3% more administrative costs than were allowed by the cap. To respond to these concerns, rather than raise the cap by the 3% needed to cover those overages, the Commission believes that its proposal to create a centralized database for certified programs to generate reports and reimbursement claims may alleviate the administrative burdens for certified programs operating in the permanent NDBEDP. If adopted, certified programs that have been incurring costs associated with the use of a database, such as the Perkins database discussed in the NPRM, would no longer need to do so, nor have those costs assessed against their 15% cap on administrative costs. Other programs that have expended funds to develop databases on their own to generate reports and reimbursement claims may also similarly experience a reduction in the costs associated with these tasks. The Commission seeks comment on this proposal and, in particular, asks whether it will help to meet the financial needs of certified programs, particularly programs that have found the 15% cap on administrative costs to be a barrier to their effective participation in the NDBEDP. The Commission also seeks comment on whether its proposal regarding administrative costs, including the types of costs included in this category of expenses (such as costs associated with reporting requirements, accounting, regular audits, oversight, and general administration) is consistent with other similar programs. Similarly, the Commission seeks comment on whether there are any best practices that should be employed in this area.

85. The NDBEDP pilot program rules require all certified programs to report certain information to the Commission in an electronic format every six months. The report must include, among other things, information about NDBEDP equipment recipients; distributed equipment; the cost, time and other resources allocated to outreach activities, assessment, equipment installation and training, and for equipment maintenance, repair, refurbishment, and upgrades; equipment requests that have been rejected; complaints; and waiting lists. Each report must be accompanied by a declaration made under penalty of perjury attesting to the truth and accuracy of the submission. In the NDBEDP Pilot Program Order, the Commission concluded that such reporting is necessary for the effective administration of the NDBEDP pilot program, to assess the effectiveness of the program, to ensure the integrity of the TRS Fund, to ensure compliance with the NDBEDP pilot program rules, and to inform the Commission's rulemaking for the permanent NDBEDP.

86. The Commission proposes to retain the six-month reporting requirement. During the pilot program, it has been useful for the Commission to gather the required information to effectively evaluate NDBEDP operations. The Commission believes that continuing to receive this data will be useful to the permanent program as well, because this will allow the Commission to ensure that NDBEDP certified programs continue to operate efficiently and that they effectively meet consumer needs. As discussed in the NPRM, the Commission proposes to require certified programs to submit report-related data to and generate reports from a centralized database, which will enable the Commission to examine the data from all certified programs in the aggregate. With all program data bundled together in a uniform report generated by the database, the Commission believes that it will be better able to assess and manage the NDBEDP. The Commission invites comment on its proposal to retain the reporting requirement.

87. The Commission seeks comment on whether it should modify the information these reports should include. In particular, are there differences in the pilot and permanent programs that should cause the Commission to change the nature of the data required by these reporting obligations? The Commission also seeks comment on ways that the provision of data required for reimbursement claims and reporting requirements can be streamlined through the design of a centralized database or by other means. For example, should state programs be permitted to submit reports at the same frequency as reimbursement claims to streamline these requirements further? What are the advantages or disadvantages of allowing certified programs to submit reimbursement claims and reports on a monthly, quarterly, or biannual basis? Should the reporting period be the same for all certified programs to ensure consistency of data? If so, what should that period be? Alternatively, now that the Commission is transitioning the NDBEDP to a permanent program, would it serve the program just as well if submission of the reports were required annually instead of every six months?

88. Under the NDBEDP pilot program, the Commission requires certified programs to submit a certification with each report executed by “the chief executive officer, chief financial officer, or other senior executive of the certified program, such as a director or manager, with first-hand knowledge of the accuracy and completeness of the information provided in the report,” as follows:

89. Consistent with the Commission's Universal Service low-income program rules, and to clarify what “affairs” means in this context, the Commission propose to amend the certification as follows:

90. Similarly, the Commission proposes to amend the certification required with reimbursement claims to clarify that the “affairs” of the certified program means the “business activities conducted pursuant to the NDBEDP” by the certified program. The Commission seeks feedback on this and any other matters pertaining to the reporting obligations not discussed above, including the costs and benefits of retaining these requirements.

91. During the pilot program, certified programs have been required to engage an independent auditor to perform annual audits designed to detect and prevent fraud, waste, and abuse. Certified programs must also make their NDBEDP-related records available for review or audit by appropriate officials of the Commission. The Commission proposes to continue to require certified programs to engage an independent auditor to perform annual audits. As recommended by the TRS Fund Administrator, the Commission also proposes that each certified program submit a copy of its annual audit to the TRS Fund Administrator and the NDBEDP Administrator. The Commission seeks comment on these proposals.

92. Further, the Commission proposes to clarify that NDBEDP certified programs are not required to conduct their annual audits using a more rigorous audit standard, such as a forensic standard, specifically designed to prevent and detect fraud, waste, and abuse. The Commission seeks comment on its proposal to affirm the following guidance provided by the Bureau in November 2012 to certified programs regarding their annual audit requirement:

93. Commenters note that the Commission should provide guidance with respect to whether certified programs must comply with OMB Circular A-133 audit requirements. Because the program audit criteria described above are similar to that of an OMB Circular A-133 audit, the Commission proposes to require that audits under the permanent NDBEDP be performed in accordance with OMB Circular A-133. The Commission invites comment on this proposal. Commenters that disagree with this proposal are asked to explain why.

94. In addition, the Commission proposes to continue to require each program to submit to an audit at any time deemed necessary by the Commission or its delegated authorities. This proposal is consistent with the Commission's TRS rules. This approach could also be implemented by performing audits either as needed or on a regular basis at intervals longer that one year. A full audit of an NDBEDP certified entity, as directed by the Commission or a delegated authority may be appropriate, for example, to obtain financial information needed for the FCC's consolidated annual financial audit, which also includes the financial results for the TRS Fund. As another example, a full audit may also be appropriate when the TRS Fund Administrator and the NDBEDP Administrator agree that reimbursement claims submitted by a certified program contain a pattern of errors or indicia reflecting a lack of accountability, fraud, waste, or abuse. The Commission further proposes that any program that fails to fully cooperate in such audits, for example, by failing to provide documentation necessary for verification upon reasonable request, be subject to an automatic suspension of NDBEDP payments until sufficient documentation is provided. The Commission believes that this automatic suspension policy, which is currently applied to the TRS program, would promote transparency and accountability in the compensation process. The Commission seeks comment on the costs and benefits of adopting this approach.

95. To further prevent and detect fraud, waste, and abuse, and ensure compliance with the NDBEDP rules, the Commission proposes to retain the provision in the pilot program rules requiring certified programs to submit documentation demonstrating ongoing compliance with the Commission's rules. Because the Commission may choose to initiate an investigation at its discretion and on its own motion, the Commission proposes to eliminate the example that appears in the pilot program rules from the permanent NDBEDP rules that suggests that “evidence that a state program may not be in compliance with those rules” is a prerequisite to such an investigation. 47 CFR 64.610(j)(3). The Commission seeks comment on these proposals.

96. Finally, to further prevent and detect fraud, waste, and abuse, the Commission proposes to retain the whistleblower protections in the NDBEDP rules. Those protections require certified programs to permit individuals to disclose to appropriate officials, without reprisal, known or suspected violations of the Commission's rules or any other activity the individual believes to be unlawful, wasteful, fraudulent, or abusive, or that could result in the improper distribution of equipment, provision of services, or billing to the TRS Fund. Certified programs must include these whistleblower protections with the information they provide about the program in any employee handbooks or manuals, on their Web sites, and in other appropriate publications. The Commission seeks comment on this proposal.

97. As part of the pilot program, the Commission adopted a rule requiring all certified programs to retain all records associated with the distribution of equipment and provision of related services under the pilot program for two years following the termination of the pilot program, without specifying the format in which they must be retained, but with the goal of promoting greater transparency and accountability. Consistent with the Commission's TRS rules, the Commission proposes to require certified programs to retain all records associated with the distribution of equipment and provision of related services under the permanent program for a minimum of five years. The Commission seeks comment on this proposal and whether such records should be retained for a longer or shorter period of time. Certified programs need such records to support their reimbursement claims, to generate reports required to be filed with the Commission, and to comply with audit requirements. The Commission has also found that such records are needed for responding to inquiries and complaints. As such, and consistent with the Commission's Universal Service low-income program rules and the NDBEDP pilot program rules, the Commission also proposes that certified programs document compliance with all Commission requirements governing the NDBEDP and provide this documentation to the Commission upon request. Record retention is also necessary in the event that questions arise about a program's compliance with NDBEDP rules or the propriety of requests for payment. The Commission seeks comment on this proposal.

98. The Commission believes that records also are needed to transfer information to another certified program when an eligible consumer moves to another state or to transfer information to a newly-certified program when a certified entity either relinquishes its certification or decides not to seek re-certification. Should the Commission's rules require NDBEDP applications to include a release that would permit disclosure of information about the applicant by the certified program, as needed, to minimize any interruption in service if such individual moves to another state or a new entity takes over certification for that individual's state? Alternatively, if the Commission adopts a centralized database for processing reimbursement claims or reporting purposes, the Commission seeks comment on whether it will continue to be necessary for certified programs to retain a copy of these records. If so, which records should be retained by certified programs and for what period of time? Should the Commission specify that records must be retained in paper or electronic format, or should it allow each certified program to decide the format in which to retain its records? The Commission seeks comment on these and any other matters related to the retention of records under the permanent program.

99. The Bureau designated an NDBEDP Administrator, who has been responsible for, among other things, reviewing applications from entities for certification to receive NDBEDP funding, allocating NDBEDP funding, reviewing reimbursement claims, maintaining the NDBEDP Web site, resolving stakeholder issues, and serving as the Commission point of contact for the NDBEDP. The NDBEDP Administrator has worked with the current TRS Fund Administrator, who has been responsible for, among other things, reviewing cost submissions and releasing funds under the NDBEDP for distributed equipment and related services, including outreach efforts.

100. The Commission seeks comment on whether the Bureau should continue to implement and administer the permanent NDBEDP, and to retain authority over NDBEDP policy matters and the functions of the NDBEDP Administrator. For example, the Bureau may task the NDBEDP Administrator with oversight of the development and maintenance of a centralized database, as well as the support for train-the-trainer programs that may be authorized under the Commission's final rules in this proceeding. The Commission also seeks comment on whether the administration of the NDBEDP should be consolidated with the administration of the other TRS programs in order to achieve greater efficiencies and cost savings. The Commission recognizes that after adoption of rules establishing the pilot program in 2011, in 2013, the Commission delegated financial oversight of the TRS Fund to the Office of Managing Director (OMD). Thus, the Commission also seeks comment on ensuring that administration of the permanent NDBEDP be conducted in a manner that ensures the Bureau's continued oversight over policy matters relating to the program while at the same time ensuring that the Commission satisfies its financial management responsibilities for the TRS program as a whole, complies with all Government-wide financial requirements, and achieves efficiencies and savings in the administrative costs of the NDBEDP.

101. For the permanent NDBEDP, like other TRS programs, financial oversight must be consistent with TRS orders, rules, and policies, and that OMD should consult with the Bureau on issues that potentially could impact the availability, provision, and continuity of services to consumers. Consistent with such direction, the Commission proposes that financial oversight of the NDBEDP be required to be consistent with NDBEDP orders, rules, and policies, and that OMD and the Bureau closely coordinate on any issues that could potentially impact the distribution of equipment or provision of related services to consumers under the NDBEDP. Finally, consistent with the current practice under the NDBEDP pilot program, the Commission proposes that the Bureau remain responsible for advising the TRS Fund Administrator on funding allocations and reallocations; payments; and any payment withholdings under the permanent NDBEDP, to the extent that such actions can be made consistently with Government-wide financial requirements and existing contractual obligations and requirements. Currently, the TRS Fund Administrator conducts a quantitative review to determine if the requested dollar amount is accurate and recommends payment, and the NDBEDP Administrator conducts a qualitative review to ensure that the claimed costs are consistent with the NDBEDP rules and approves payment. The Commission seeks comment on these proposals. The Commission also seeks comment on whether it should establish a process for certified programs to appeal payment withholdings, denials, or suspensions by the NDBEDP Administrator. If so, what should that process be? For example, should a certified program be permitted to appeal such decisions to the Chief of the Consumer and Governmental Affairs Bureau? The Commission presently maintains a process for the handling of appeals in response to the suspension or withholding of TRS payments, and asks commenters whether a similar or alternative appeals process should be applied to compensation withheld, suspended, or denied under the NDBEDP.

102. Under the NDBEDP pilot program, the NDBEDP Administrator is responsible for responding to consumer complaints filed directly with the Commission. Complaints might be filed for various reasons, such as complaints about unskilled trainers or interpreters, or to appeal a certified program's eligibility determination or denial of equipment. The Commission proposes to adopt rules for the permanent NDBEDP to facilitate the receipt and processing of such consumer complaints and appeals.

103. For this purpose, the Commission proposes to adopt informal and formal complaint procedures, modeled after the Commission's processes for the handling of complaints against telecommunications and TRS providers, as follows. First, the Commission proposes that an informal complaint filed with the Commission must include the name and contact information of the complainant; the name of the NDBEDP certified program; a statement describing how the NDBEDP certified program violated the Commission's rules; what the complainant wants the NDBEDP certified program to do to resolve the complaint; and the complainant's preferred format or method of response, such as by letter, fax, telephone, TTY, or email. The Commission will forward complete complaints to the NDBEDP certified program for a response. When it appears that an informal complaint has been resolved, the Commission may consider the matter closed. In all other cases, the Commission will inform the complainant and the NDBEDP certified program about its review and disposition of the complaint. If a complainant is not satisfied with the NDBEDP certified program's response and the Commission's disposition of the informal complaint, the complainant may file a formal complaint with the Commission in accordance with the Commission's rules for filing formal complaints. See 47 CFR 1.720-1.736. The Commission may also conduct inquiries and hold proceedings that it deems necessary to enforce the NDBEDP requirements. The Commission seeks comment on these proposed informal and formal complaint procedures.

104. In the NDBEDP Pilot Program Order, the Commission declined to allocate funds for research and development (R&D) efforts. Although the Commission recognized the need to stimulate innovation to fill existing equipment and technology gaps to meet the communications technology access needs of individuals who are deaf-blind, it concluded that R&D funding was not appropriate because of insufficient information about those gaps and the kinds of research and funding needed to fill them. Likewise, because the amount of NDBEDP funding available each year is very limited, and because the potential gaps between existing technology and technology needed to meet the communications needs of individuals who are deaf-blind are not apparent on the record at this time, the Commission tentatively concludes that funding is more appropriately allocated to the distribution of equipment to consumers and related services than to R&D and seeks comment on this tentative conclusion.

105. The Commission recently announced the formation of a Disability Advisory Committee, which will provide advice and recommendations to the Commission on a wide array of disability matters, including the NDBEDP. In addition, the Commission's rulemaking proceedings are open to the public for comment, and feedback from administrators of certified programs is always welcome. For example, during the NDBEDP pilot program, the sharing of expertise and ideas for the NDBEDP has been accomplished through informal monthly conference calls among certified programs that the Commission proposes to continue under the permanent program. For these reasons, the Commission does not see the need to establish a separate workgroup of state NDBEDP programs to advise the Commission at this time. The Commission seeks comment on this approach.

106. The Regulatory Flexibility Act (RFA) requires that an agency prepare a regulatory flexibility analysis for notice-and-comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 5 U.S.C. 605(b). The RFA generally defines “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). 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.

107. In the NPRM, the Commission seeks comment on its proposal to further implement section 105 of the CVAA that requires the Commission to take various measures to ensure that people with disabilities have access to emerging communications technologies in the 21st Century. Section 105 of the CVAA adds section 719 to the Communications Act of 1934, as amended, and is codified at 47 U.S.C. 620. Pursuant to section 105, in 2011, the Commission established the NDBEDP as a pilot program to provide up to $10 million annually from the TRS Fund for the distribution of communications devices to low-income individuals who are deaf-blind. 47 CFR 64.610 (NDBEDP pilot program rules). A person who is “deaf-blind” has combined vision and hearing loss, as defined in the Helen Keller National Center Act. 47 U.S.C. 620(b); 29 U.S.C. 1905(2). The Commission authorized up to 53 certified programs to participate in the pilot program—one entity to distribute equipment in each state, plus the District of Columbia, Puerto Rico, and the U.S. Virgin Islands—and selected Perkins School for the Blind as the national outreach coordinator to support the outreach and distribution efforts of these state programs. Through the pilot program, thousands of low-income individuals who are deaf-blind have received equipment used for distance communications or the Internet and training on how to operate this equipment.

108. On August 1, 2014, the Commission released a Public Notice inviting comment on which rules governing the NDBEDP pilot program should be retained and which should be modified to make the permanent NDBEDP more effective and more efficient. On May 21, 2015, the Commission extended the pilot program until June 30, 2016. Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Section 105, Relay Services for Deaf-Blind Individuals, CG Docket No. 10-210, Order, FCC 15-57 (rel. May 27, 2015). The Commission commits to continue the pilot NDBEDP as long as necessary to ensure a seamless transition between the pilot and permanent programs to ensure the uninterrupted distribution of equipment to this target population. When the Commission adopts final rules for the permanent program it will consider the extent to which the pilot program needs to be extended further.

109. Currently, programs are certified to distribute equipment in all the states and the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. The NPRM proposes to expand NDBEDP programs and funding to the U.S. territories of American Samoa, Guam, and the Northern Mariana Islands because residents of these territories are also eligible for services supported by the TRS Fund.

110. The NPRM proposes that current programs and other entities that want to apply for certification seek certification for a five-year period and every five years after that. The NPRM proposes that, if a current program seeks to renew its certification or another entity wants to apply for certification, it must, one year prior to the expiration of a certification, submit an application explaining why it is still eligible to participate in the NDBEDP.

111. The NPRM proposes that the Commission create, by itself or by engaging a third party, a centralized database that would assist the programs in performing two functions. First, all programs would be able to submit information into the database and use the database to generate the reports that must be submitted to the Commission every six months. Second, all programs would be able to submit data regarding their expenses into the database and generate reimbursement claims that must be submitted to the TRS Fund Administrator. Submission of data into a central database in a uniform manner would diminish administrative costs for the programs. Collecting data in a uniform manner from the programs would enable the Commission to analyze aggregate data. The NPRM invites comment on the development and functions of the database, and estimates that the database will cost between $285,000 and $380,000 annually.

112. The NPRM proposes that each certified program be required to make public on its Web site, if one is maintained by the certified program, or as part of its other local outreach efforts a brief narrative description of any criteria, priorities, or strategies it uses to ensure the fair distribution of equipment to low-income residents who are deaf-blind. The NPRM invites comment on whether any burdens placed on the program by such a requirement would be outweighed by the benefits.

113. In the NDBEDP Pilot Program Order, the Commission concluded that without training recipients on how to use the communications equipment they receive, such as Braille readers, recipients will not be able to use the equipment, and the equipment will be underutilized or abandoned. The NDBEDP pilot program permits reimbursement for the reasonable costs of installing NDBEDP-distributed equipment and individualized consumer training on how to use such equipment. To help address a shortage of qualified trainers, the NPRM proposes to set aside 2.5% of the $10 million annual funding allocation ($250,000) for each of the first three years of the permanent program to support train-the-trainer activities, including the reasonable costs of travel for such training, and seeks comment on this proposal. The Notice invites comment on whether to support train-the-trainer programs provided by one or more entities, or to reimburse state programs for train-the-trainer activities they select.

114. Under the Commission's rules for the NDBEDP pilot program, certified programs are compensated for 100% of their expenses, up to each program's annual allocation set by the NDBEDP Administrator. Within this annual allocation amount, the Commission did not establish any caps for costs associated with outreach, assessments, equipment, installation, or training, but did establish a cap for administrative costs. The NPRM proposes to limit local outreach conducted by certified programs to 10% of their annual allocations. The Commission, in a previous NDBEDP order, defined administrative costs to include reporting requirements, accounting, regular audits, oversight, and general administration. Programs may be compensated for administrative costs up to 15% of their total reimbursable costs (i.e., not their total allocation) for equipment and related services actually provided. The 15% cap does not apply to, and there is no cap for, costs associated with outreach, assessments, equipment, installation, or training. The NPRM proposes to reimburse certified programs for administrative costs up to 15% of their annual allocation, regardless of the amount of equipment and related services they actually provide. The NPRM recognizes that during the first two years of the NDBEDP pilot, some programs' administrative costs exceeded the allowable 15% reimbursable amount. To respond to these concerns, the NPRM proposes the creation of a centralized database to be used by certified programs for generating reports and reimbursement claims, which may alleviate the administrative burdens for certified programs operating in the permanent NDBEDP by making it easier to operate without a loss within the 15% administrative cap. If adopted, certified programs would no longer have these costs and therefore would have more money under their 15% cap on administrative costs.

115. During each year of the pilot program, the Commission has set aside $500,000 of the $10 million available annually for Perkins School for the Blind, as the outreach coordinator selected by the Consumer and Governmental Affairs Bureau (CGB or Bureau), to perform national outreach to promote the NDBEDP. As the Commission explained in the NDBEDP Pilot Program Order, significant initial funding for outreach was necessary to inform eligible individuals about the availability of the program so that distribution of equipment could take place. Based on the successful efforts of the national outreach program, the NPRM proposes to continue funding for national outreach efforts at a reduced level. The NPRM therefore proposes to reduce the amount of money spent on national outreach to $250,000 for each of the first three years of the permanent program, and seeks comment on this proposal.

116. The NDBEDP pilot program rules require all certified programs to report their status every six months. The NPRM finds that continuing to receive this data will be useful to the permanent program as well because this will allow the Commission to ensure that NDBEDP certified programs continue to operate efficiently and that they effectively meet consumer needs. The NPRM finds that any current reporting burden on the certified programs will be diminished by the creation of a centralized database.

117. During the pilot program, certified programs have been required to engage an independent auditor to perform annual audits designed to detect and prevent fraud, waste, and abuse. The NPRM proposes to continue to require certified programs to engage an independent auditor to perform annual audits. It also proposes that each certified program submit a copy of its annual audit to the TRS Fund Administrator and the NDBEDP Administrator and to continue to require each program to submit to an audit at any time deemed necessary by the Commission or its delegated authorities. The NPRM invites comments on this proposal and any alternative proposals.

118. Under the current NDBEDP, 53 certified programs provide communications equipment to low-income individuals who are deaf-blind. Under the NPRM, this number may be expanded to 56 certified programs. One entity performs national outreach to promote the NDBEDP and serve as a resource to the certified programs. The NPRM proposes to create a centralized database and the Commission may engage a third-party for that purpose. The NPRM also proposes that the Commission may select an entity to train the certified programs' trainers. The Commission will pay all of these entities for their costs to perform these duties from the TRS Fund so that all their NDBEDP costs are reimbursed up to the annual funding allocations established for these purposes.

119. The Commission finds that the rules proposed in the NPRM will not have a significant economic impact on these entities because the Commission will reimburse them for all of their NDBEDP expenses from the TRS Fund, up to their annual funding allocations. The proposals in the NPRM are intended to reduce the administrative burden on certified programs. The changes the Commission proposes are of an administrative nature, and will not have a significant economic impact on small entities. If there is an economic impact on small entities as a result of these proposals, however, the Commission expects the impact to be a positive one.

120. The Commission therefore certifies, pursuant to the RFA, that the proposals in the NPRM, if adopted, will not have a significant economic impact on a substantial number of small entities.

121. The Commission will send a copy of the NPRM, including a copy of this initial certification, to the Chief Counsel for Advocacy of the SBA

Pursuant to the authority contained in sections 1, 4(i), 4(j), and 719 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), and 620, that document FCC 15-58 IS ADOPTED.

The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of document FCC 15-58, including the Initial Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons stated in the preamble, the Federal Communications Commission proposes to amend Title 47 of the Code of Federal Regulations as follows:

I. Background

DoD, GSA, and NASA are proposing to revise the FAR to implement regulatory changes made by the Small Business Administration (SBA) in its final rule at 78 FR 42391, dated July 16, 2013, concerning small business subcontracting. Among other things, SBA's final rule implements the statutory requirements set forth at sections 1321 and 1322 of the Small Business Jobs Act of 2010 (Jobs Act), (Pub. L. 111-240).

• Section 1321 of the Jobs Act requires promulgation of regulations on subcontracting compliance relating to small business concerns, including assignment of compliance responsibilities between contracting offices, small business offices, and program offices and periodic oversight and review activities.

• Section 1322 of the Jobs Act amends the Small Business Act (15 U.S.C. 637(d)(6)) to require as part of a subcontracting plan that a prime contractor make a good faith effort to utilize a small business subcontractor during performance of a contract to the same degree the prime contractor relied on the small business in preparing and submitting its bid or proposal. If a prime contractor does not utilize a small business subcontractor as described above, the prime contractor is required to explain, in writing, to the contracting officer the reasons why it is unable to do so.

SBA's final rule revised 13 CFR 125.3, and also implemented changes aimed at improving subcontracting regulations to increase small business opportunities. These changes include:

• Authorizing contracting officers to establish subcontracting goals in terms of total contract dollars in addition to the required goals in terms of total subcontracted dollars, for individual plans.

• Providing contracting officers discretion to require a subcontracting plan in instances where a prime contractor's size status changes from small to other than small business as a result of rerepresentation.

• Requiring subcontracting plans, to the extent that subcontracting opportunities exist, when a modification causes the overall contract value to exceed the subcontracting plan threshold, even if the modification's value is less than the threshold.

• Requiring prime contractors to assign North American Industry Classification System (NAICS) codes to subcontracts.

• Providing that prime contractors cannot prohibit a subcontractor from discussing payment or utilization matters with the contracting officer.

• Requiring prime contractors to resubmit a corrected subcontracting report within 30 days of receiving the contracting officer's notice of report rejection.

• Clarifying a requirement that prime contractors notify unsuccessful offerors for subcontracts in writing.

• Requiring prime contractors with individual subcontracting plans to report order level subcontracting information.

• Clarifying that failure to comply in good faith with the subcontracting plan shall be a material breach of the contract and may be considered in any past performance evaluation of the prime contractor.

The proposed rule will implement a change in the method that Federal agencies will receive small business subcontracting credit. Historically, the agency that awards the contract also receives the small business subcontracting credit. The proposed rule changes this model by allowing the funding agency to receive the small business credit. SBA implemented this change of providing funding agency credit in its final rule in deference to the concerns expressed by the users of multi-agency contracts (MACs) and Government-wide acquisition contracts (GWACs), who have long been of the opinion that the agencies using these vehicles, i.e., the funding agencies, should receive the small business subcontracting credit. For consistency, this proposed FAR rule implements the requirement for funding agencies receiving small business subcontracting credit for all contract vehicles, not just MACs and GWACs.

This proposed FAR rule also changes the requirement for a prime contractor to submit Summary Subcontract Reports (SSRs) for DoD and NASA contracts to be annually rather than semi-annually, and deletes the requirement for a prime contractor to submit a separate report to each DoD component for construction and related maintenance and repair contracts.

Amendments to FAR subparts 1.1, 2.1, 15.3, 19.3, 19.7, and 52.2 are proposed by this rule. The proposed changes are summarized in the following paragraphs.

A. FAR Subpart 1.1, Purpose, Authority, Issuance. Section 1.106 under this subpart is amended to reflect the new Paperwork Burden OMB clearance number associated with the requirement of section 1322 of the Jobs Act.

B. FAR Subpart 2.1, Definitions. This subpart is amended to revise the definitions of HUBZone contract and HUBZone small business concern to clarify that HUBZone status is not a self-certification. The clarification is necessary due to instances of some small business concerns located in HUBZones identifying themselves as HUBZone small business concerns without realizing that business concerns may not self-certify as a HUBZone small business concern. A certified HUBZone small business concern is one on the List of Qualified HUBZone Small Business Concerns maintained by the Small Business Administration. This subpart is also amended to revise the definition of “small business subcontractor.”

C. FAR Subpart 15.3, Source Selection.

• FAR 15.304, Evaluation factors and significant subfactors. This section is amended to make minor editorial changes.

D. FAR Subpart 19.3, Determination of Small Business Status for Small Business Programs.

• FAR 19.301-2, Rerepresentation by a contractor that represented itself as a small business concern. This subsection is amended to give contracting officers the discretionary authority to require a subcontracting plan in the event a prime contractor's size changes from small to other than small as a result of a size rerepresentation on a contract that contains FAR clause 52.219-9, Small Business Subcontracting Plan.

E. FAR Subpart 19.7, The Small Business Subcontracting Program.

• FAR 19.701, Definitions. This section is amended to reflect the common usage name of “individual subcontracting plans” instead of “individual contract plans” and clarify that a “master plan” refers to a “master subcontracting plan.” This section also adds a definition for the term “total contract dollars” which is introduced in 19.704 in this case.

• FAR 19.702, Statutory requirements. This section is amended to be more consistent with SBA's revised regulations on requiring subcontracting plans when a modification causes the value of a contract without a subcontracting plan to exceed the subcontracting threshold. This section is also amended to remove an outdated reference to clauses in contracts awarded before 1978.

• FAR 19.703, Eligibility requirements for participating in the program. This section is amended to implement SBA's regulatory changes regarding prime contractors' responsibility in assigning NAICS codes and corresponding size standards to subcontracts. In addition, new guidance is added regarding acceptable sources of information a prime contractor may use to determine a subcontractor's size and socioeconomic status and the old language is removed. This section is also amended to correct outdated information and to move language regarding protest of the disadvantaged status of a proposed subcontractor to new paragraph (e).

• FAR 19.704, Subcontracting plan requirements. This section is amended to implement various SBA regulatory changes and clarifications including—

○ Explicitly authorizing contracting officers to establish additional subcontract goals in terms of total contract dollars for individual subcontracting plans;

○ A requirement for prime contractors to report order-level subcontracting information for multiple-award contracts intended for use by multiple agencies;

○ A requirement for prime contractors to resubmit a corrected subcontracting report within 30 days of receiving the contracting officer's notice of report rejection;

○ Changing the requirement for semi-annual submission of the SSR for DoD and NASA to be annual;

○ A requirement that prime contractors make good faith efforts to utilize the small business subcontractors to the same or greater extent they were used in preparing the bid or proposal;

○ A requirement for the prime contractor to provide the contracting officer with a written explanation if it does not use a small business subcontractor to the same extent as described in the prime contractor's bid or proposal; and

○ Restricting prime contractors from prohibiting a subcontractor from discussing payment or utilization matters with the contracting officer.

• FAR 19.705, Responsibilities of the contracting officer under the subcontracting assistance program.

○ FAR 19.705-1, General support of the program. This subsection is amended to revise the title of the subsection and to implement SBA's regulatory requirements regarding subcontracting plans for indefinite-delivery, indefinite-quantity contracts exceeding the subcontracting threshold and discretion of ordering contracting officers to establish subcontracting goals for individual orders.

○ FAR 19.705-2, Determining the need for a subcontracting plan. This subsection is amended to implement SBA's regulatory requirement to establish a subcontracting plan when a modification of any value causes the contract to exceed the subcontracting plan threshold, and there are potential subcontracting opportunities. Language is added to explicitly require the rationale to be placed in the contract file for determining that no subcontracting opportunities exist. This subsection is also amended to clarify that while changes made to an existing subcontracting plan do not apply retroactively, the contractor's achievements prior to the modification will be factored into its overall achievement on the plan. This subsection also adds language clarifying that when a subcontracting plan is required for a contract as a result of a size rerepresentation or a modification which causes the value of the contract to exceed the threshold for a subcontracting plan, the goals in the subcontracting plan apply from the date of incorporation of the plan into the contract and the contractor is to report its subcontracting achievement from the date the plan is incorporated into the contract.

○ FAR 19.705-4, Reviewing the subcontracting plan. This subsection makes conforming changes to paragraphs (b) and (c).

○ FAR 19.705-6, Postaward responsibilities of the contracting officer. This subsection implements the SBA's regulatory requirements for contracting officers to ensure prime contractors meet their obligations under their subcontracting plan. This subsection is amended as follows—

New language is added clarifying that upon receipt of the prime contractor's subcontracting reports into eSRS, the contracting officer shall review the submitted reports within 60 days of the report ending date and ensure that an explanation is provided in the event the contracting officer rejects a submitted report; and

New language is added to require the contracting officer to evaluate a prime contractor's written explanation concerning its failure to use a small business concern in the performance of a contract when that small business concern was used to prepare the bid or proposal.

• FAR 19.708, Contract Clauses. This section is amended to add a prescription for the newly-created Alternate IV to clause 52.219-9 Small Business Subcontracting Plan.

F. FAR Subpart 52.2, Text of Provisions and Clauses.

• FAR 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders-Commercial Items. This clause is amended to reflect the updated 52.219-8 and 52.219-9.

• FAR 52.219-8, Utilization of Small Business Concerns. This clause is amended to make conforming changes based on changes to FAR 2.101 and 19.703.

• FAR 52.219-9, Small Business Subcontracting Plan. This clause is amended to incorporate corresponding guidance and policy changes made to section 19.704 and SBA's regulatory guidance regarding inclusion of indirect costs and awards made by affiliates in ISRs and SSRs. This clause is also amended to reflect the change of DoD's and NASA's semi-annual submission requirement for Summary Subcontract Reports (SSR) and eliminate a unique DoD requirement for a separate SSR for construction contracts. In addition, an Alternate IV to the clause is created for use in contracts where a subcontracting plan will be required when a modification causes the contract to exceed the threshold for a subcontracting plan and there are subcontracting opportunities.

This rule proposes to amend the clauses at 52.219-8, Utilization of Small Business Concerns, and 52.219-9, Small Business Subcontracting Plan, in order to implement sections 1321 and 1322 of the Small Business Jobs Act of 2010. The Federal Acquisition Regulatory Council, pursuant to the authority granted in 41 U.S.C. 1906 and the Administrator, Office of Federal Procurement Policy, pursuant to the authority granted in 41 U.S.C. 1907, have determined that the application of these statutory provisions to contracts for commercial items and commercially available off-the-shelf items, is in the best interests of the Federal Government.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This proposed rule is not a major rule under 5 U.S.C. 804.

The change may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act 5 U.S.C. 601, et seq. The Initial Regulatory Flexibility Analysis (IRFA) is summarized as follows:

The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule consistent with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2014-003), in correspondence.

The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. This proposed rule contains information collection requirements. Accordingly, the Regulatory Secretariat Division has submitted a request for approval of one new and two revised information collection requirements concerning FAR Case 2014-003 Small Business Subcontracting Improvements to the Office of Management and Budget.

A1. Request for approval of new information collection requirement 9000-00xx. Public reporting burden for the collection of information regarding a contractor's utilization of small business subcontractors to the same degree the prime contractor relied on the small business in preparing and submitting its bid or proposal is estimated to be $202,464. FPDS for FY 2013 lists 5,327 actions with small business subcontracting plans. However, it is estimated that at most 50 percent of these contracts with subcontracting plans may have instances of the prime contractor not using a small business subcontractor to the same extent used in preparing the bid or proposal. Using this method provides the number of respondents as 2,664. It is estimated that the average time required to read and prepare information for this collection is two hours. It is also estimated that the responses per respondent would be once a year since prime contractors have until 30 days of contract completion to submit the written explanation.

The annual reporting burden is estimated as follows:

Respondents: 2,664.

Responses per respondent: 1.

Total annual responses: 2,664.

Preparation hours per response: 2.

Total response burden hours: 5,328.

Cost per hour: $38.

Total annual burden: $202,464.

A2. Revision to existing OMB Clearance 9000-0006. Based on the proposed revisions to the FAR as well as a more accurate basis for estimation, an upward adjustment is being made to the average burden hours for reporting and recordkeeping per response but a downward adjustment is being made to the number of respondents (i.e., subcontracting plans and the individual subcontracting reports associated with them). As a result, a downward adjustment is being made to the estimated annual reporting burden since the notice regarding an extension to this clearance published in the Federal Register at 78 FR 17668, on March 22, 2013.

Respondents: 59,336.

Responses per respondent: 3.

Total annual responses: 178,008.

Preparation hours per response: 13.5.

Total response burden hours: 2,403,108.

Cost per hour: $30.

Total annual burden: $72,093,240.

A3. Revision to existing OMB Clearance 9000-0007. Based on the proposed revisions to the FAR as well as a more accurate basis for estimation, a downward adjustment is being made to the number of respondents (i.e., summary subcontracting reports). Since the proposed revisions to the FAR do not require additional information in the Summary Subcontract Report, the estimated preparation hours per response remains unchanged. As a result, a downward adjustment is being made to the estimated annual reporting burden since the notice regarding an extension to this clearance published in the Federal Register at 78 FR 17668, on March 22, 2013.

Respondents: 59,336.

Responses per respondent: 1.

Total annual responses: 59,336.

Preparation hours per response: 9.0.

Total response burden hours: 534,024.

Cost per hour: $30.

Total annual burden: $16,020,720.

B. Request for Comments Regarding Paperwork Burden. Submit comments, including suggestions for reducing this burden, no later than August 10, 2015 to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, Regulatory Secretariat Division (MVCB), ATTN: Ms. Flowers, 1800 F. Street NW., 2nd Floor, Washington, DC 20405.

Public comments are particularly invited on: Whether these collections of information are necessary for the proper performance of functions of the FAR, and will have practical utility; whether our estimate of the public burden of these collections of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, or clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.

Requesters may obtain a copy of the supporting statements from the General Services Administration, Regulatory Secretariat Division (MVCB), ATTN: Ms. Flowers, 1800 F. Street NW., 2nd Floor, Washington, DC 20405. Please cite OMB Control Number 9000-00XX, Utilization of Small Business Subcontractors, 9000-0006, Subcontracting Plans/Subcontract Report For Individual Contracts, or 9000-0007, Summary Subcontract Report, as applicable, in all correspondence.

Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR parts 1, 2, 15, 19, and 52, as set forth below:

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We will accept written comments and information during this reopened comment period on our proposed designation of critical habitat for 135 species on the Hawaiian Islands of Molokai, Lanai, Maui, and Kahoolawe (collectively, “Maui Nui”) that was published in the Federal Register on June 11, 2012 (77 FR 34464). In that proposed rule, we proposed to list 38 species as endangered, reaffirm the listing of 2 endemic Hawaiian plants currently listed as endangered, and designate critical habitat for 39 of these 40 plant and animal species on the Hawaiian Islands of Molokai, Lanai, and Maui; and to designate critical habitat for 11 plant and animal species that are already listed as endangered, and revise critical habitat for 85 plant species that are already listed as endangered or threatened on the Hawaiian Islands of Molokai, Lanai, Maui, and Kahoolawe. On May 28, 2013, we published a final rule listing 38 Maui Nui species (35 plants and 3 tree snails) as endangered and reaffirming the listing of 2 plant species as endangered (78 FR 32014). Critical habitat has not yet been finalized. We have previously extended or reopened the comment period on the proposed critical habitat twice: once for 30 days, on August 9, 2012 (77 FR 47587), and again for 30 days on January 31, 2013 (78 FR 6785).

In particular we are seeking public comment on the areas that we are considering for exclusion from the final designation of critical habitat. Although we had previously indicated that we were considering the possible exclusion of non-Federal lands, especially areas in private ownership, and asked for comment on the broad public benefits of encouraging collaborative conservation efforts with local and private partners, we are now offering an additional opportunity for public comment on this issue. We will consider information and recommendations from all interested parties.

We are particularly interested in comments concerning whether the benefits of excluding any particular area from critical habitat outweigh the benefits of including that area as critical habitat under section 4(b)(2) of the Act (16 U.S. C. 1531 et se.), after considering the potential impacts and benefits of the proposed critical habitat designation. We are considering the possible exclusion of non-Federal lands, especially areas in private ownership, and whether the benefits of exclusion may outweigh the benefits of inclusion of those areas. We, therefore, request specific information on:

• The benefits of including any specific areas in the final designation and supporting rationale.

• The benefits of excluding any specific areas from the final designation and supporting rationale.

• Whether any specific exclusions may result in the extinction of the species and why.

For non-Federal lands in particular, we are interested in information regarding the potential benefits of including such lands in critical habitat versus the benefits of excluding such lands from critical habitat. This information does not need to include a detailed technical analysis of the potential effects of designated critical habitat on non-Federal property. In weighing the potential benefits of exclusion versus inclusion of non-Federal lands, the Service may consider whether existing partnership agreements provide for the management of the species. This consideration may include, for example, the status of conservation efforts, the effectiveness of any conservation agreements to conserve the species, and the likelihood of the conservation agreement's future implementation. In addition, we may consider the formation or fostering of partnerships with non-Federal entities that result in positive conservation outcomes for the species, as evidenced by the development of conservation agreements, as a potential benefit of exclusion. We request comment on the broad public benefits of encouraging collaborative efforts and encouraging local and private conservation efforts.

Our final determination concerning the designation of critical habitat for 135 species on the Hawaiian Islands of Molokai, Lanai, Maui, and Kahoolawe will take into consideration all written comments and information we receive during all comment periods; from peer reviewers; and during the public information meeting, as well as comments and public testimony we received during the public hearing, that we held in Kihei, Maui, on February 21, 2013 (see 78 FR 6785; January 31, 2013). The comments will be included in the public record for this rulemaking, and we will fully consider them in the preparation of our final determination. On the basis of peer reviewer and public comments, as well as any new information we may receive, we may, during the development of our final determination concerning critical habitat, find that areas within the proposed critical habitat designation do not meet the definition of critical habitat, that some modifications to the described boundaries are appropriate, or that areas may or may not be appropriate for exclusion under section 4(b)(2) of the Act.

If you submitted comments or information on the proposed rule (June 11, 2012; 77 FR 34464) during any of the previous open comment periods from June 11, 2012, through September 10, 2012 (77 FR 34464 and 77 FR 47587), from January 31, 2013, through March 4, 2013 (78 FR 6785), or at the public information meeting or hearing on February 21, 2013, please do not resubmit them. We will fully consider them in the preparation of our final determinations.

You may submit your comments by one of the methods listed in the ADDRESSES section. We will post your entire comment—including your personal identifying information—on http://www.regulations.gov. If you submit your comment via U.S. mail, you may request at the top of your document that we withhold personal information such as your street address, phone number, or email address from public review; however, we cannot guarantee that we will be able to do so.

Comments and materials we receive will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R1-ES-2013-0003, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

The topics discussed below are relevant to designation of critical habitat for 135 species on the Hawaiian Islands of Molokai, Lanai, Maui, and Kahoolawe. For more information on previous Federal actions concerning these species, refer to the proposed listing and designation of critical habitat published in the Federal Register on June 11, 2012 (77 FR 34464), and the final listing rule for 38 species on Molokai, Lanai, and Maui published in the Federal Register on May 28, 2013 (78 FR 32014), both of which are available online at http://www.regulations.gov (at Docket Number FWS-R1-ES-2011-0098), or from the Pacific Islands Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

On June 11, 2012, we published a proposed rule (77 FR 34464) to list 38 species as endangered and designate or revise critical habitat for 135 plant and animal species. We proposed to designate a total of 271,062 acres (ac) (109,695 hectares (ha)) on the Hawaiian Islands of Molokai, Lanai, Maui, and Kahoolawe (collectively called Maui Nui) as critical habitat. Approximately 47 percent of the area proposed as critical habitat is already designated as critical habitat for other species, including 85 plant species for which critical habitat was designated in 1984 (49 FR 44753; November 9, 1984) and 2003 (68 FR 1220, January 9, 2003; 68 FR 12982, March 18, 2003; 68 FR 25934, May 14, 2003). Within that proposed rule, we announced a 60-day comment period, which we subsequently extended for an additional 30 days (77 FR 47587; August 9, 2012); in total, the comment period began on June 11, 2012, and ended on September 10, 2012. On January 31, 2013, we announced the availability of the draft economic analysis on the proposed designation of critical habitat, and reopened the comment period on our proposed rule, the draft economic analysis, and amended required determinations for another 30 days, through March 4, 2013 (78 FR 6785). On January 31, 2013, we also announced a public information meeting in Kihei, Maui, which we held on February 21, 2013, followed by a public hearing on that same day.

Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency unless it is exempted pursuant to the provisions of the Act (16 U.S. C. 1536(e)-(n) and (p)). Federal agencies proposing actions affecting critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.

Consistent with the best scientific data available, the standards of the Act, and our regulations, we have initially identified, for public comment, a total of 271,062 ac (109,695 ha) in 100 units for the 130 plants, 44 units for each of the 2 forest birds, 5 units for each of the Lanai tree snails, and 1 unit for the Maui tree snail, located on the Hawaiian Islands of Molokai, Lanai, Maui, and Kahoolawe, that meet the definition of critical habitat for the 135 plant and animal species. In addition, the Act provides the Secretary with the discretion to exclude certain areas from the final designation after taking into consideration economic impacts, impacts on national security, and any other relevant impacts of specifying any particular area as critical habitat.

Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.

When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of mapping areas containing essential features that aid in the recovery of the listed species, and any benefits that may result from designation due to State or Federal laws that may apply to critical habitat. In the case of the 135 Maui Nui species, the benefits of critical habitat include public awareness of the presence of one or more of these species and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for the species due to protection from adverse modification or destruction of critical habitat. In practice, situations with a Federal nexus exist primarily on Federal lands or for projects undertaken by Federal agencies.

Under section 4(b)(2) of the Act, when considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of conservation partnerships; or implementation of a management plan. We also consider the potential economic impacts that may result from the designation of critical habitat.

In weighing the benefits of exclusion versus inclusion, we consider a number of factors, including whether the landowners have developed any habitat conservation plans (HCPs) or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. We consider the establishment and encouragement of strong conservation partnerships with non-Federal landowners to be especially important in the State of Hawaii, where there are relatively few lands under Federal ownership; we cannot achieve the conservation and recovery of listed species in Hawaii without the help and cooperation of non-Federal landowners. We consider building partnerships and promoting voluntary cooperation of landowners essential to understanding the status of species on non-Federal lands and necessary to implement recovery actions, such as the reintroduction of listed species, habitat restoration, and habitat protection.

Many non-Federal landowners derive satisfaction from contributing to endangered species recovery. Conservation agreements with non-Federal landowners, safe harbor agreements, other conservation agreements, easements, and State and local regulations enhance species conservation by extending species protections beyond those available through section 7 consultations. We encourage non-Federal landowners to enter into conservation agreements based on a view that we can achieve greater species conservation on non-Federal lands through such partnerships than we can through regulatory methods alone, particularly for listed plants which are not subject to the Act's section 9 prohibition on taking (USFWS and NOAA 1996c (61 FR 63854; December 2, 1996)).

Because so many important conservation areas for the Maui Nui species occur on lands managed by non-Federal entities, collaborative relationships are essential for their recovery. The Maui Nui species and their habitat are expected to benefit substantially from voluntary land management actions that implement appropriate and effective conservation strategies, or that add to our knowledge of the species and their ecological needs. The conservation benefits of critical habitat, on the other hand, are primarily regulatory or prohibitive in nature. Where consistent with the discretion provided by the Act, the Service believes it is both desirable and necessary to implement policies that provide positive incentives to non-Federal landowners and land managers to voluntarily conserve natural resources and to remove or reduce disincentives to conservation (Wilcove et al. 1996, pp. 1-14; Bean 2002, p. 2). Thus, we believe it is imperative for the recovery of the Maui Nui species to support ongoing conservation activities such as those with non-Federal partners, and to provide positive incentives for other non-Federal land managers who might be considering implementing voluntary conservation activities but have concerns about incurring incidental regulatory, administrative, or economic impacts. Many landowners perceive critical habitat as an unnecessary and duplicative regulatory burden, particularly if those landowners are already developing and implementing conservation and management plans that benefit listed species on their lands. In certain cases, we believe the exclusion of non-Federal lands that are under positive conservation management is likely to strengthen the partnership between the Service and the landowner, which may encourage other conservation partnerships with that landowner in the future. As an added benefit, by modeling positive conservation partnerships that may result in exclusion from critical habitat, such exclusion may also help encourage the formation of new partnerships with other landowners, with consequent benefits to the listed species. For all of these reasons, we place great weight on the value of conservation partnerships with non-Federal landowners when considering the potential benefits of inclusion versus exclusion of areas in critical habitat.

In the proposed rule (June 11, 2012; 77 FR 34464), we identified several specific areas under consideration for exclusion from critical habitat, totaling approximately 40,973 ac (16,582 ha) of private lands under perpetual conservation easement, voluntary conservation agreement, conservation or watershed preserve designation, or similar conservation protection. The areas initially identified for potential exclusion, as detailed in our proposed rule, included lands owned or managed by The Nature Conservancy (TNC), Maui Land and Pineapple Company, Ulupalakua Ranch, Haleakala Ranch Company, and East Maui Irrigation Company.

In the document reopening the comment period on our proposed rule, published January 31, 2013 (78 FR 6785), we specifically noted that we are considering the possible exclusion of non-Federal lands, especially areas in private ownership, and whether the benefits of exclusion may outweigh the benefits of inclusion of those areas. We asked for public comment on such potential exclusions, and for information regarding the potential benefits of including private lands in critical habitat versus the benefits of excluding such lands from critical habitat. We further noted that exclusions in the final rule would not necessarily be limited to those we had initially identified in the proposed rule. Subsequent to publication of the proposed rule on June 11, 2012 (77 FR 34464), we have identified additional private or non-Federal lands that we are considering for exclusion from critical habitat. These include lands owned or managed by Nuu Mauka Ranch; Kaupo Ranch; Wailuku Water Company; County of Maui, Department of Water Supply; Kamehameha Schools; Makila Land Company; Kahoma Land Company; and Lanai Resorts (Pulama Lanai) and Castle and Cooke Properties. In total, the areas being considered for exclusion from the final critical habitat amount to roughly 85,000 ac (34,400 ha), including approximately 59,500 ac (24,080 ha) on the islands of Maui and Molokai, and 25,413 ac (10,284 ha) on the island of Lanai (which would result in the exclusion of all lands proposed as critical habitat on Lanai). No lands are currently under consideration for exclusion on Kahoolawe. Here we present brief descriptions of the additional non-Federal lands under consideration for exclusion from critical habitat.

We are considering exclusion of 2,094 ac (848 ha) of lands that are owned by Nuu Mauka Ranch. The ongoing management under the Native Watershed Forest Restoration Conservation Plan, Leeward Haleakala Watershed Restoration Partnership (LHWRP) management plan, and the Southern Haleakala Forest Restoration Project agreement for Nuu Mauka Ranch lands on east Maui provides for the conservation of 46 plants and the 2 forest birds and their habitat, and demonstrates the positive benefits of the conservation partnership that has been established with Nuu Mauka Ranch.

Nuu Mauka Ranch is involved in several important voluntary conservation agreements with the Service and other agencies, and is currently carrying out activities on their lands for the conservation of rare and endangered species and their habitats. In 2008, the Ranch worked with the United States Geological Survey (USGS)-Pacific Island Ecosystem Research Center and Natural Resources Conservation Service (NRCS) to develop cost-effective, substrate appropriate restoration methodologies for establishment of native koa (Acacia koa) forests in degraded pasturelands. Nuu Mauka Ranch is a current partner of the LHWRP, with the main goal of protection and restoration of leeward Haleakala's upland watershed. In 2012, Nuu Mauka Ranch obtained a conservation district use permit for a watershed protection project. The ultimate goal of this project is to improve water quality and groundwater recharge through the restoration of degraded agricultural land to a native forest community. Nuu Mauka Ranch has contributed approximately $500,000 of their own funds, and received additional funding through the Service and NRCS, for construction of a 7.6-mile (12-kilometer) long deer-proof fence to prevent access by deer and goats into a 1,023-ac (414-ha), upper elevation watershed area on the south slopes of leeward Haleakala (Southern Haleakala Forest Restoration Project). Nuu Mauka Ranch has also prepared a conservation plan, “Native Watershed Forest Restoration at Nuu Mauka” (2012), and has appended it to the LHWRP management plan. Restoration activities outlined in the plan include mechanical and chemical control of invasive plant species, which are known threats to the 48 species and their habitat. Currently, Nuu Mauka Ranch conducts removal of feral ungulates from all fenced areas, along with fence monitoring and follow-up monitoring to assess erosion rates. Also, with fencing and ungulate removal completed, the plan includes continued restoration activities such as replanting and seed scattering of common native plant species.

We are considering exclusion of 931 ac (377 ha) of lands that are owned or managed by Kaupo Ranch. Kaupo Ranch has undertaken voluntary conservation measures on their lands, demonstrating their value as a partner through participation in the LHWRP management plans and the appended written commitments by Kaupo Ranch, and the Southern Haleakala Forest Restoration Project for Kaupo Ranch lands on east Maui. These actions provide positive conservation benefits for 25 plant species and their habitat.

Kaupo Ranch is a current partner of the LHWRP, with the main goal of protection and restoration of leeward Haleakala's upland. Kaupo Ranch has identified the following conservation actions that will be appended to the LHWRP: (1) Fence existing native koa forest and remove ungulates. Kaupo Ranch also plans to expand koa forest restoration on their lands. These actions will benefit adjacent koa forest managed by the State (Kipahulu Forest Reserve (FR)). (2) Continue nonnative plant control, not only to improve their pasturelands, but to benefit adjacent conservation lands (Haleakala National Park (HNP) and Kipahulu FR) by serving as a buffer area. (3) Fence areas dominated by native vegetation on Kaupo Ranch lands, with some fencing already completed in cooperation with HNP and Nuu Mauka Ranch. (4) Fence some of their coastal lands and control feral goats.

In addition, Kaupo Ranch has been a long time cooperator with HNP, providing access to the park's Kaupo Gap hiking trail across their private lands. This trail extends from the park's boundary near the summit of Haleakala through Kaupo Ranch lands to the coast. The Ranch was also a cooperator with the Service in the creation of Nuu Makai Wetland Reserve, contributing 87 ac(35 ha) of their ranch lands in the coastal area to support landscape-scale wetland protection. In addition, Kaupo Ranch participated in the construction of an ungulate exclusion fence on the upper portion of their lands, bordering HNP, that protects 50 ac (20 ha) of native montane dry forest habitat (Southern Haleakala Forest Restoration Project) and acts as a buffer to the lower boundary of the montane mesic ecosystem that provides habitat for forest birds. Additional conservation actions in this fenced area include weed control and outplanting of native plants.

We are considering exclusion of 7,410 ac (2,999 ha) of lands owned or managed by Wailuku Water Company on west Maui, and under management as part of the West Maui Mountains Watershed Partnership (WMMWP). Ongoing conservation actions through the WMMWP management plan and Partners for Fish and Wildlife Agreements for Wailuku Water Company lands on west Maui provide important conservation benefits for 51 plants and 2 forest birds and their habitat, and demonstrate the positive benefits of the conservation partnership that has been established with Wailuku Water Company.

Wailuku Water Company is one of the founding members and a funder of the WMMWP, created in 1998. This partnership serves to protect over 47,000 ac (19,000 ha) of forest and watershed vegetation on the summit and slopes of the west Maui mountains (WMMWP 2013). Management priorities of the watershed partnership are: (1) Feral animal control; (2) nonnative plant control; (3) human activities management; (4) public education and awareness; (5) water and watershed monitoring; and (6) management coordination (WMMWP 2013). Four principal streams, Waihee, Waiehu, Iao, and Waikapu, are part of the watershed area owned by the Wailuku Water Company on west Maui, which primarily provide water for agricultural use. Conservation actions described in the WMMWP management plan are partly funded by Service grants through the Partners for Fish and Wildlife Program, with at least three grants recently funding projects on Wailuku Water Company lands. Wailuku Water Company's conservation commitments include the following conservation actions: (1) Strategic fencing and removal of ungulates; (2) regular monitoring for ungulates after fencing; (3) monitoring of habitat recovery through photopoints and vegetation succession analyses; and (4) continued surveys for rare taxa prior to fence installations. In 2009, four strategic fences were installed in Waiehu on Wailuku Water Company lands through a Service Partnership agreement. Wailuku Water Company allows surveys for rare taxa on their lands. Additional conservation actions in this area include weed control and outplanting of native plants.

We are considering exclusion of 3,690 ac (1,493 ha) of lands owned by the County of Maui DWS on west Maui, and under management as part of the WMMWP. The County of Maui DWS is a founding partner and funder of the WMMWP, which provides for important conservation actions that benefit the Maui Nui species through implementation of the WMMWP management plan on west Maui. The management plans and projects supported by the County of Maui DWS provide for the conservation of 38 plants and the 2 forest birds and their habitat on their lands, and demonstrate their value as a conservation partner.

Maui County DWS provides water to approximately 35,000 customers on Maui and Molokai combined. The DWS is a founding partner and funder of the WMMWP, with the main goal of protection and restoration of west Maui's upland watershed. The Maui County DWS provides financial support to both the Maui and Molokai watershed partnerships, and to other organizations, private landowners, Federal, and State agencies. Conservation actions by Maui County DWS conducted through the WMMWP are also partly funded by Service grants through the Partners for Fish and Wildlife Program. Maui County DWS's conservation commitments include the following conservation actions: (1) Strategic fencing and removal of ungulates and removal of invasive nonnative plants; (2) regular monitoring to detect changes in management programs; (3) reduce the threat of fire; and (4) gain community support for conservation programs. In addition, the DWS received funding for installation of an ungulate exclusion fence on the upper portion of their lands on west Maui that protects native habitat and acts as a buffer to the lower boundary of the habitat for plants and the two forest birds. The DWS also received funding in 2010 for feral animal removal from their lands. Other conservation actions in this fenced area include weed control and outplanting of native plants.

We are considering excluding 1,217 ac (492 ha) of lands owned or managed by Kamehameha Schools on west Maui, and under management as part of the WMMWP. Kamehameha Schools is an established conservation partner, and has participated the development, implementation, and funding of management plans and projects that benefit the Maui Nui species and other listed species throughout the Hawaiian Islands. In this case, the ongoing conservation actions through the WMMWP management plan for Kamehameha Schools' lands on west Maui provide for the conservation of 42 plants and 2 forest birds and their habitat.

Kamehameha Schools was established in 1887, through the will of Princess Bernice Pauahi Paki Bishop. The trust is used primarily to operate a college preparatory program; however, part of Kamehameha School's mission is to protect Hawaii's environment through recognition of the significant cultural value of the land and its unique flora and fauna. Kamehameha Schools has established a policy to guide the sustainable stewardship of its lands including natural resources, water resources, and ancestral places. Kamehameha Schools is a founder and funder of the WMMWP, and also participates in the watershed partnerships for Oahu, Molokai, Kauai, and the island of Hawaii. Conservation actions conducted by the WMMWP are partly funded by Service grants through the Partners for Fish and Wildlife Program. Kamehameha Schools' conservation commitments include the following conservation actions: (1) Strategic fencing and removal of ungulates; (2) regular monitoring for ungulates after fencing; (3) monitoring of habitat recovery; and (4) continued surveys for rare taxa prior to new fence installations. In addition, Kamehameha Schools participated in the construction of strategic ungulate exclusion fences on the upper elevations of their lands on west Maui, that protect native habitat and act as a buffer to the lower boundary of the lowland mesic, montane wet, and wet cliff ecosystems. Other conservation actions in this area include weed control and outplanting of native plants. Kamehameha Schools is also conducting voluntary actions to promote the conservation of rare and endangered species and their lowland dry ecosystem habitats on the island of Hawaii, including installing fencing to exclude ungulates, restoring habitat, conducting actions to reduce rodent populations, reestablishing native plant species, and conducting activities to reducing the threat of wildfire.

We are considering exclusion of 3,150 ac (1,275 ha) of lands owned and managed by Makila Land Company on west Maui, and under management as part of the WMMWP. The Makila Land Company is an established partner in the WMMWP, and ongoing conservation actions through the WMMWP management plan for Makila Land Company lands on west Maui provide for the conservation of 47 plants and 2 forest birds and their habitat.

Makila Land Company has set aside upper elevation areas of their property at Puehuehunui and Kauaula on west Maui for conservation and protection of rare dry to mesic forest communities. Makila Land Company is a long-time cooperator with the WMMWP. Conservation actions conducted by the WMMWP are partly funded by Service grants through the Partners for Fish and Wildlife Program. Makila Land Company's conservation commitments include the following conservation actions: (1) Strategic fencing and removal of ungulates; (2) regular monitoring for ungulates after fencing; (3) vegetation monitoring; and (4) allowing surveys for rare taxa by the State and Service's Plant Extinction Prevention Program (PEPP) staff. Much of the area is accessible only by helicopter due to waterfalls and steep terrain. The installation of strategic ungulate exclusion fences on the higher elevation portions of its lands protects native habitat and acts as a buffer to the boundaries of the montane wet and wet cliff ecosystem habitat. Additional conservation actions in these fenced areas include weed control and outplanting of native plants.

We are considering exclusion of 46 ac (19 ha) of lands owned or managed by Kahoma Land Company on west Maui, and under management as part of the WMMWP. The ongoing conservation actions through the WMMWP management plan for Kahoma Land Company lands on west Maui provide for the conservation of 25 plants and 2 forest birds and their habitat, and demonstrate their value as a conservation partner.

Kahoma Land Company is a coalition of Maui residents formed in June, 2000, to acquire former sugar cane land adjacent to Kahoma Valley on west Maui. Kahoma Land Company's long-term management goals for this area include development of land tracts, diversified agriculture, and ecotourism ventures. Approximately 690 ac (279 ha) of the coalition's lands are within the WMMWP boundaries between two State Natural Area Reserves, and 46 ac (19 ha) are within proposed critical habitat. Kahoma Land Company is also a current member of the WMMWP. Kahoma Land Company's conservation actions conducted by the WMMWP are partly funded by Service grants through the Partners for Fish and Wildlife Program. Its conservation commitments include the following conservation actions: (1) Strategic fencing and removal of ungulates; (2) regular monitoring for ungulates after fencing; (3) monitoring of habitat recovery through vegetation succession analyses; and (4) continued surveys for rare taxa prior to new fence installations. The WMMWP management plan includes actions taken on Kahoma lands to control ungulates, including construction of strategic fencing. Ungulate control checks are currently underway on Kahoma lands, with addition of new check installations. Additional conservation actions in this area include weed control and outplanting of native plants.

We are considering exclusion of 25,413 ac (10,284 ha) of lands from critical habitat, under section 4(b)(2) of the Act, that are owned by Lanai Resorts, also known as Pulama Lanai (PL) and Castle & Cooke Properties, Inc. (CCPI). Our partnership with PL and CCPI provides significant conservation benefits to 38 plant and 2 Lanai tree snail species on Lanai, as demonstrated by the ongoing conversation efforts on the island, the commitment to develop the Lanai Natural Resources Plan (LNRP), and the recently signed memorandum of understanding (MOU) between the Service and PL and CCPI.

In 2001, the Board of Land and Natural Resources (BLNR) approved its department's (Department of Land and Natural Resources (DLNR)) participation in a Lanai watershed management program that included the Service (through a private stewardship grant), the Hawaii Department of Health, and CCPI. In 2002, the Service and CCPI entered into a memorandum of agreement (MOA) for construction of ungulate-proof fence at Lanaihale, intended to prevent entry by ungulates and to protect the watershed and the listed species within the area. The term of the MOA was for 10 years. The fencing of the summit at Lanaihale was planned to be constructed in three stages or “increments.” In 2004, the DLNR also provided funding through the Landowner Incentive Program to the Bishop Museum to remove nonnative plants and outplant and establish a population of more than 500 individuals of Bidens micrantha ssp. kalealaha and Pleomele fernaldii in Waiapaa Gulch at Lanaihale. Museum staff were to also collect seed for long-term storage and provide educational experiences for local Lanai students. In 2006, a fire resulted in the loss of half of the remaining wild individuals of B. micrantha ssp. kalealaha, and by 2007, none remained. Outplanting was conducted within an ungulate-free exclosure at Awehi Gulch. Also in 2007, the west side (Increment II) of the Lanaihale summit fence perimeter was completed; however, ungulates were able to access the fenced area because the gates were not completed. In 2008, more wild individuals of B. micrantha ssp. kalealaha were discovered in Waiapaa Gulch, and many seedlings were grown for outplanting by a student group at the local high school, with a second outplanted population established in 2009. This population was fenced by the Lanai Institute for the Environment (LIFE).

The Service and PL and CCPI signed an expansive MOU on January 26, 2015, with a term that extends through 2028. Among the commitments made by PL and CCPI in this MOU are the following: (1) The completion of a Lanai natural resources plan (LNRP) within 18 months of the date of the agreement. Implementation of the LNRP will include identification of priority ecosystems and species, prioritization of management actions required, and commitment of funding; (2) maintenance and monitoring of the completed existing Lanaihale predator-proof fences; (3) ungulate eradication within the Lanaihale fences and other priority areas as identified in the LNRP; (4) cooperation with, and support of management and monitoring within, TNC's Kanepuu Preserve units; (5) protection of rare plant clusters; (6) Lanai tree snail protection, management, and monitoring; (7) identification of rare species for immediate protective intervention efforts; (8) protection of coastal areas; (9) establishment of nearly 7,000 ac (2,800 ha) of “no development areas” as determined by the LNRP, within which enhancement of overall ecological condition and conservation of listed species will be emphasized; and (10) an overall commitment to ensuring a net conversation benefit for listed species on Lanai. PL and CCPI additionally agree to provide more than $200,000 annually in funding toward achievement of the conservation measures described in the MOU.

Under the terms of the MOU, PL and CCPI are currently developing the LNRP. This plan will include a description of detailed management actions with timelines that will benefit and provide protection for 38 plant species, the two Lanai tree snails, and their habitat on the island of Lanai. The Service is a member of the LNRP planning and implementation team, and will therefore be an active participant in the ongoing conservation efforts on the island of Lanai.

PL has committed to implementing certain protective measures in advance of the LNRP to ensure species conversation. Actions currently being implemented include: (1) Planning and construction of an enclosure for the protection of the two Lanai tree snails; (2) planning, construction, and maintenance of fences around three rare plant populations; (3) out-planting of rare species in protected locations; (4) implementation of bio-security measures to avoid the incursion and spread of invasive species; (5) maintenance of all existing fences; (6) predator control where necessary and appropriate to protect listed species; and (7) identification of other priority actions and sites. These measures are currently underway and being conducted in coordination with the Service.

We are considering exclusion of these non-Federal lands because we believe the exclusion would be likely to result in the continuation, strengthening, or encouragement of important conservation partnerships that will contribute to the long-term conservation of the Maui Nui species. The development and implementation of management plans, and ability to access private lands necessary for surveys or monitoring designed to promote the conservation of these federally listed plant species and their habitat, as well as provide for other native species of concern, are important outcomes of these conservation partnerships.

These specific exclusions will be considered on an individual basis or in any combination thereof. In addition, the final designation may not be limited to these exclusions, but may also consider other exclusions as a result of continuing analysis of relevant considerations (scientific, economic, and other relevant factors, as required by the Act) and the public comment process. In particular, we solicit comments from the public on whether to make the specific exclusions we are considering, and whether there are other areas that are appropriate for exclusion.

The final decision on whether to exclude any area will be based on the best scientific data available at the time of the final designation, including information obtained during the comment periods and information about the economic impact of the designation.

The primary authors of this notice are the staff members of the Pacific Islands Fish and Wildlife Office, Pacific Region, U.S. Fish and Wildlife Service.

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).