Federal Register Vol. 80, No.151,

Federal Register Volume 80, Issue 151 (August 6, 2015)

Page Range46789-47398
FR Document

80_FR_151
Current View
Page and SubjectPDF
80 FR 46848 - Fisheries of the Northeastern United States; Atlantic Bluefish Fishery; Quota TransferPDF
80 FR 46959 - Evaluation of National Estuarine Research ReservePDF
80 FR 46988 - Agency Information Collection Activities; Proposed Collection; Comment Request; ExtensionPDF
80 FR 47021 - Notice of Public Meetings for Unmanned Aircraft Systems Test Sites and Center of ExcellencePDF
80 FR 46954 - Foreign-Trade Zone 84-Houston, Texas, Application for Subzone Expansion, Subzone 84P, Houston Refining LP, Houston and Pasadena, TexasPDF
80 FR 46995 - Agency Information Collection Activities: Customs Modernization Act Recordkeeping RequirementsPDF
80 FR 46996 - Agency Information Collection Activities: Ship's Store DeclarationPDF
80 FR 46795 - Suspension of Benefits Under the Multiemployer Pension Reform Act of 2014; CorrectionPDF
80 FR 46882 - Suspension of Benefits Under the Multiemployer Pension Reform Act of 2014; CorrectionPDF
80 FR 46955 - Carbazole Violet Pigment 23 From India and the People's Republic of China: Final Results of Expedited Second Sunset Reviews of Antidumping Duty OrdersPDF
80 FR 46956 - Polyethylene Terephthalate Film, Sheet, and Strip From India: Preliminary Results and Partial Recission of Countervailing Duty Administrative Review; 2013PDF
80 FR 46957 - Polyethylene Terephthalate Film, Sheet, and Strip From India: Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review; 2013-2014PDF
80 FR 46954 - Certain Crepe Paper Products From the People's Republic of China: Final Results of Expedited Sunset Review of the Antidumping Duty OrderPDF
80 FR 46793 - Dates of Application of Amendments to the Antidumping and Countervailing Duty Laws Made by the Trade Preferences Extension Act of 2015PDF
80 FR 46985 - Pender Plating Site; Burgaw, Pender County, North Carolina; Notice of SettlementPDF
80 FR 46985 - Proposed Consent Decree, Clean Air Act Citizen SuitPDF
80 FR 46960 - Proposed Information Collection; Comment Request; Atlantic Highly Migratory Species Tournament Registration and ReportingPDF
80 FR 46994 - National Institute on Alcohol Abuse and Alcoholism: Notice of Closed MeetingsPDF
80 FR 46994 - National Institute on Alcohol Abuse and Alcoholism: Notice of Closed MeetingPDF
80 FR 46994 - Center for Scientific Review; Notice of Closed MeetingsPDF
80 FR 46951 - International Trade Data System Test Concerning the Electronic Submission to the Automated Commercial Environment of the Lacey Act Import Declaration Form Using the Partner Government Agency Message SetPDF
80 FR 46853 - Multi-Family Housing Program Requirements To Reduce Financial Reporting RequirementsPDF
80 FR 46928 - Creation of Interstitial 12.5 kHz Channels in the 800 MHz Band Between 809-817/854-862 MHzPDF
80 FR 46965 - President's Advisory Commission on Educational Excellence for African AmericansPDF
80 FR 47020 - Culturally Significant Objects Imported for Exhibition Determinations: “Berlin Metropolis: 1918-1933” ExhibitionPDF
80 FR 47020 - Culturally Significant Objects Imported for Exhibition Determinations: “Kongo: Power and Majesty” ExhibitionPDF
80 FR 47020 - Culturally Significant Objects Imported for Exhibition Determinations: “Breguet: Art and Innovation in Watchmaking” ExhibitionPDF
80 FR 47021 - 60-Day Notice of Proposed Information Collection: U.S. Passport Application Drop-Off ListPDF
80 FR 47024 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
80 FR 47031 - Parts and Accessories Necessary for Safe Operation; Application for an Exemption From TowMate, LLC.PDF
80 FR 47023 - Agency Information Collection Activities; Extension of a Currently-Approved Information Collection Request: Annual Report of Class I and Class II Motor Carriers of Property (OMB 2139-0004)PDF
80 FR 46966 - Texas LNG Brownsville LLC; Application for Long-Term, Multi-Contract Authorization To Export Liquefied Natural Gas to Non-Free Trade Agreement Nations for a 25-Year PeriodPDF
80 FR 46970 - Cameron LNG, LLC; Application for Long-Term, Multi-Contract Authorization To Export Liquefied Natural Gas to Non-Free Trade Agreement Nations for a Period of 20 YearsPDF
80 FR 46967 - Cameron LNG, LLC; Application for Long-Term, Multi-Contract Authorization To Export Liquefied Natural Gas to Non-Free Trade Agreement Nations for a 20-Year PeriodPDF
80 FR 46969 - Floridian Natural Gas Storage Company, LLC; Application for Long-Term, Multi-Contract Authorization To Export Liquefied Natural Gas to Non-Free Trade Agreement Nations for a 20-Year PeriodPDF
80 FR 46947 - International Trade Data System Test Concerning the Electronic Submission Through the Automated Commercial Environment of Notification of Importation of Fruits, Vegetables, and Specialty Crops Required by the Agricultural Marketing Service Using the Partner Government Agency Message SetPDF
80 FR 46789 - Processed Raspberry Promotion, Research, and Information Order; Late Payment and Interest Charges on Past Due AssessmentsPDF
80 FR 46997 - Notice of Public Meeting for Proposed Withdrawal; OregonPDF
80 FR 46981 - Combined Notice of FilingsPDF
80 FR 47023 - Environmental Impact Statement: Alexander, Johnson, Massac, Pulaski, and Union Counties, Illinois; Ballard and McCracken Counties, Kentucky; and Cape Girardeau, Scott, and Mississippi Counties, MissouriPDF
80 FR 47000 - Certain Passenger Vehicle and Light Truck Tires From ChinaPDF
80 FR 47388 - Migratory Bird Hunting; Proposed 2016-17 Migratory Game Bird Hunting Regulations (Preliminary) With Requests for Indian Tribal Proposals; Notice of MeetingsPDF
80 FR 46953 - Hood-Willamette Resource Advisory CommitteePDF
80 FR 46987 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
80 FR 46988 - Notice of Proposals to Engage in or To Acquire Companies Engaged in Permissible Nonbanking ActivitiesPDF
80 FR 46939 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Northeast Fisheries Science Center Fisheries Research; CorrectionPDF
80 FR 46977 - Grand River Dam Authority; Notice of Application for Temporary Variance and Soliciting Comments, Motions To Intervene, and ProtestsPDF
80 FR 46975 - Aspirity Energy Mid-States LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
80 FR 46978 - Aspirity Energy Northeast LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
80 FR 46978 - ORNI 37 LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
80 FR 46983 - Bonneville Power Administration; Notice of FilingPDF
80 FR 46982 - Hiland Partner Holdings, LLC; Notice of ApplicationPDF
80 FR 46973 - Combined Notice of Filings #3PDF
80 FR 46974 - Combined Notice of Filings #1PDF
80 FR 46972 - Combined Notice of Filings #3PDF
80 FR 46983 - Combined Notice of Filings #2PDF
80 FR 46976 - Combined Notice of Filings #1PDF
80 FR 46984 - Combined Notice of Filings #2PDF
80 FR 47032 - Pipeline Safety: Meeting of the Gas Pipeline Safety Advisory Committee and the Liquid Pipeline Safety Advisory CommitteePDF
80 FR 47006 - Advisory Committee for Environmental Research and Education: Notice of MeetingPDF
80 FR 46961 - Applications for New Awards; Demonstration and Training: Career Pathways for Individuals With DisabilitiesPDF
80 FR 46799 - Final Priority and Definitions; Demonstration and Training Program: Career Pathways for Individuals With DisabilitiesPDF
80 FR 46979 - Coordination of the Scheduling Processes of Interstate Natural Gas Pipelines and Public UtilitiesPDF
80 FR 47000 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Independent Contractor Registration and IdentificationPDF
80 FR 47014 - Self-Regulatory Organizations; Chicago Mercantile Exchange Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Expand Performance Bond Collateral Program To Include Australian Government Debt, Singapore Government Debt, and Ontario and Quebec Canadian Provincial DebtPDF
80 FR 47018 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Order Approving a Proposed Rule Change To Provide a Web-Based Delivery Method for Completing the Regulatory Element of the Continuing Education RequirementsPDF
80 FR 47008 - Self-Regulatory Organizations; New York Stock Exchange, LLC; Order Granting Approval of a Proposed Rule Change Making Permanent the Rules of the NYSE New Market Model Pilot and the NYSE Supplemental Liquidity Providers PilotPDF
80 FR 46998 - Certain Vision-Based Driver Assistance System Cameras, Components Thereof, and Products Containing the Same: Commission's Determination To Review-in-Part a Final Initial Determination Finding No Violation of Section 337; Request for Written Submissions; Extension of the Target DatePDF
80 FR 47003 - Required Elements for Submission of the Unified or Combined State Plan and Plan Modifications Under the Workforce Innovation and Opportunity ActPDF
80 FR 47006 - Request for Steering Committee NominationsPDF
80 FR 46997 - Establishment of the U.S. Immigration and Customs Enforcement Advisory Committee on Family Residential Centers and Solicitation of Nominations for Membership; CorrectionPDF
80 FR 46953 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment AssistancePDF
80 FR 46824 - Expanding the Economic and Innovation Opportunities of Spectrum through Incentive AuctionsPDF
80 FR 46791 - Elimination of the Air Traffic Control Tower Operator Certificate for Controllers Who Hold a Federal Aviation Administration Credential With a Tower RatingPDF
80 FR 46883 - Proposed Establishment of the Tip of the Mitt Viticultural AreaPDF
80 FR 46950 - Office of Tribal Relations; Council for Native American Farming and RanchingPDF
80 FR 46949 - Submission for OMB Review; Comment RequestPDF
80 FR 47004 - Agency Information Collection Activities; Comment Request; Information Collections Pertaining to Special Employment Under the Fair Labor Standards ActPDF
80 FR 47001 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Employer Perceptions Study for the Evaluation of Round 4 of the Trade Adjustment Assistance Community College Career Training (TAACCCT) Grants ProgramPDF
80 FR 46848 - Fisheries of the Northeastern United States; Atlantic Bluefish Fishery; 2015 Atlantic Bluefish SpecificationsPDF
80 FR 46852 - Fisheries Off West Coast States; West Coast Salmon Fisheries; 2015 Management Measures; CorrectionPDF
80 FR 46997 - Notice of Intent To Repatriate Cultural Items: Heard Museum, Phoenix, AZPDF
80 FR 46941 - Magnuson-Stevens Act Provisions; Refinance of the Pacific Coast Groundfish Fishing Capacity Reduction Loan; Pacific Coast Groundfish Federal Limited-Entry Trawl, Washington Coastal Dungeness Crab and California Pink Shrimp Fisheries; Refinanced Reduction Loan Terms and Industry Fee SystemPDF
80 FR 46993 - Program Expansion for the National Center for Medical Home Implementation Cooperative Agreement at the American Academy of PediatricsPDF
80 FR 46996 - Kentucky; Amendment No. 3 to Notice of a Major Disaster DeclarationPDF
80 FR 46987 - Agency Information Collection Activities: Proposed Collection Renewal; Comment Request (3064-0072 and 3064-0093)PDF
80 FR 46990 - Brief Summary and Adequate Directions for Use: Disclosing Risk Information in Consumer-Directed Print Advertisements and Promotional Labeling for Prescription Drugs; Revised Draft Guidance for Industry (Revision 2); AvailabilityPDF
80 FR 47033 - Survey of Foreign Ownership of U.S. Securities as of June 30, 2015PDF
80 FR 46960 - Fisheries of the South Atlantic; Southeast Data, Assessment, and Review (SEDAR); Public MeetingPDF
80 FR 46870 - Energy Conservation Program: Test Procedures for Small, Large, and Very Large Air-Cooled Commercial Package Air Conditioning and Heating EquipmentPDF
80 FR 46930 - Pipeline Safety: Miscellaneous Changes to Pipeline Safety Regulations; Administrative Significance: Petitions for ReconsiderationPDF
80 FR 46888 - Schedule for Rating Disabilities: The Hematologic and Lymphatic SystemsPDF
80 FR 46796 - Civilian Health and Medical Program of the Uniformed Services (CHAMPUS)/TRICARE: Refills of Maintenance Medications Through Military Treatment Facility Pharmacies or National Mail Order Pharmacy ProgramPDF
80 FR 46930 - Preliminary Theft Data; Motor Vehicle Theft Prevention StandardPDF
80 FR 46855 - Energy Conservation Program: Test Procedures for Battery ChargersPDF
80 FR 46804 - Approval and Promulgation of Air Quality Implementation Plans; Missouri; Update to Materials Incorporated by ReferencePDF
80 FR 47142 - Medicare Program; FY 2016 Hospice Wage Index and Payment Rate Update and Hospice Quality Reporting RequirementsPDF
80 FR 47350 - Securement of Unattended EquipmentPDF
80 FR 47036 - Medicare Program; Inpatient Rehabilitation Facility Prospective Payment System for Federal Fiscal Year 2016PDF
80 FR 46816 - Fluazifop-P-Butyl; Pesticide TolerancePDF
80 FR 47210 - Milk in California; Notice of Hearing on a Proposal To Establish a Federal Milk Marketing OrderPDF
80 FR 46847 - Pipeline Safety: Periodic Updates of Regulatory References to Technical Standards and Miscellaneous Amendments; CorrectionsPDF
80 FR 47340 - Equal Protection of the Laws for Faith-Based and Community OrganizationsPDF
80 FR 46900 - Equipment Authorization and Electronic Labeling for Wireless DevicesPDF
80 FR 46822 - Organization and Functions of the Chemical Safety and Hazard Investigation BoardPDF
80 FR 47254 - Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards; Direct Grant Programs; and State-Administered ProgramsPDF
80 FR 47244 - Equal Opportunity for Religious Organizations in USDA Programs: Implementation of E.O. 13559PDF
80 FR 47238 - Amendment To Participation by Religious Organizations in USAID Programs To Implement Executive Order 13559PDF
80 FR 47328 - Equal Treatment in Department of Labor Programs for Faith-Based and Community Organizations; Protection of Religious Liberty of Department of Labor Social Service Providers and BeneficiariesPDF
80 FR 47316 - Partnerships With Faith-Based and Other Neighborhood OrganizationsPDF
80 FR 47302 - Equal Participation of Faith-Based Organizations in HUD Programs: Implementation of E.O. 13559PDF
80 FR 47284 - Nondiscrimination in Matters Pertaining to Faith-Based OrganizationsPDF
80 FR 47272 - Implementation of Executive Order 13559 Updating Participation in Department of Health and Human Services Programs by Faith-Based or Religious Organizations and Providing for Equal Treatment of Department of Health and Human Services Program ParticipantsPDF

Issue

80 151 Thursday, August 6, 2015 Contents Agency Agency for International Development PROPOSED RULES Participation by Religious Organizations in USAID Programs; Amendments, 47238-47241 2015-18261 Agricultural Marketing Agricultural Marketing Service RULES Processed Raspberry Promotion, Research, and Information Orders: Late Payment and Interest Charges on Past Due Assessments, 46789-46791 2015-19325 PROPOSED RULES Milk in California: Proposal To Establish a Federal Milk Marketing Order; Public Hearing, 47210-47235 2015-18704 NOTICES International Trade Data System Tests: Electronic Submission Through the Automated Commercial Environment of Notification of Importation of Fruits, Vegetables, and Specialty Crops, etc., 46947-46949 2015-19326 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Animal and Plant Health Inspection Service

See

Food and Nutrition Service

See

Forest Service

See

Rural Housing Service

PROPOSED RULES Equal Opportunity for Religious Organizations, 47244-47252 2015-18262 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 46949-46950 2015-19275 Meetings: Council for Native American Farming and Ranching, 46950-46951 2015-19276
Alcohol Tobacco Tax Alcohol and Tobacco Tax and Trade Bureau PROPOSED RULES Viticultural Areas: Tip of the Mitt; Establishment, 46883-46888 2015-19277 Animal Animal and Plant Health Inspection Service NOTICES International Trade Data System Test: Electronic Submission to the Automated Commercial Environment of the Lacey Act Import Declaration Form Using the Partner Government Agency Message Set, 46951-46953 2015-19343 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicare Program: FY 2016 Hospice Wage Index and Payment Rate Update and Hospice Quality Reporting Requirements, 47142-47207 2015-19033 Inpatient Rehabilitation Facility Prospective Payment System for Federal Fiscal Year 2016, 47036-47139 2015-18973 Chemical Chemical Safety and Hazard Investigation Board RULES Organization and Functions, 46822-46824 2015-18318 Children Children and Families Administration PROPOSED RULES Updating Participation in Programs by Faith-Based or Religious Organizations and Providing for Equal Treatment of Program Participants, 47272-47282 2015-18256 NOTICES Required Elements for Submission of the Unified or Combined State Plan and Plan Modifications Under the Workforce Innovation and Opportunity Act, 47003-47004 2015-19286 Commerce Commerce Department See

Economic Development Administration

See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Defense Department Defense Department RULES Civilian Health and Medical Program of the Uniformed Services: TRICARE: Refills of Maintenance Medications Through Military Treatment Facility Pharmacies or National Mail Order Pharmacy Program, 46796-46799 2015-19196 Economic Development Economic Development Administration NOTICES Trade Adjustment Assistance Eligibility Petitions, 46953-46954 2015-19283 Education Department Education Department RULES Final Priorities and Definitions: Demonstration and Training Program: Career Pathways for Individuals With Disabilities, 46799-46804 2015-19293 PROPOSED RULES Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards; Direct Grant Programs; and State-Administered Programs, 47254-47269 2015-18263 NOTICES Applications for New Awards: Demonstration and Training: Career Pathways for Individuals With Disabilities, 46961-46965 2015-19294 Meetings: President's Advisory Commission on Educational Excellence for African Americans, 46965-46966 2015-19340 Required Elements for Submission of the Unified or Combined State Plan and Plan Modifications Under the Workforce Innovation and Opportunity Act, 47003-47004 2015-19286 Energy Department Energy Department See

Federal Energy Regulatory Commission

PROPOSED RULES Energy Conservation Program: Test Procedures for Battery Chargers, 46855-46870 2015-19105 Test Procedures for Small, Large, and Very Large Air-Cooled Commercial Package Air Conditioning and Heating Equipment, 46870-46882 2015-19232 NOTICES Applications To Export Liquefied Natural Gas: Cameron LNG, LLC; 20-Year Period, 46967-46972 2015-19329 2015-19330 Floridian Natural Gas Storage Co., LLC; 20-Year Period, 46969-46970 2015-19328 Texas LNG Brownsville, LLC; 25-Year Period, 46966-46967 2015-19331
Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Missouri; Update to Materials Incorporated by Reference, 46804-46816 2015-19092 Pesticide Tolerances: Fluazifop-P-butyl, 46816-46822 2015-18825 NOTICES Proposed Consent Decrees, Clean Air Act Citizen Suits, 46985-46987 2015-19349 Settlements: Pender Plating Site, Burgaw, Pender County, NC, 46985 2015-19350 Federal Aviation Federal Aviation Administration RULES Elimination of the Air Traffic Control Tower Operator Certificate for Controllers Who Hold a Federal Aviation Administration Credential With a Tower Rating, 46791-46793 2015-19278 NOTICES Meetings: Unmanned Aircraft Systems Test Sites and Center of Excellence, 47021-47023 2015-19375 Federal Communications Federal Communications Commission RULES Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions, 46824-46847 2015-19281 PROPOSED RULES Creation of Interstitial 12.5 kHz Channels in the 800 MHz Band Between 809-817/854-862 MHz, 46928-46930 2015-19341 Equipment Authorization and Electronic Labeling for Wireless Devices, 46900-46928 2015-18402 Federal Deposit Federal Deposit Insurance Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 46987 2015-19245 Federal Emergency Federal Emergency Management Agency NOTICES Major Disaster Declarations: Kentucky; Amendment No. 3, 46996-46997 2015-19256 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Grand River Dam Authority, 46977-46978 2015-19309 Hiland Partner Holdings, LLC, 46982-46983 2015-19304 Combined Filings, 46972-46977, 46981-46985 2015-19298 2015-19299 2015-19300 2015-19301 2015-19302 2015-19303 2015-19322 Filings: Bonneville Power Administration, 46983 2015-19305 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Aspirity Energy Mid-States LLC, 46975-46976 2015-19308 Aspirity Energy Northeast LLC, 46978 2015-19307 ORNI 37, LLC, 46978-46979 2015-19306 Orders: Coordination of the Scheduling Processes of Interstate Natural Gas Pipelines and Public Utilities, 46979-46981 2015-19292 Federal Highway Federal Highway Administration NOTICES Environmental Impact Statements; Availability, etc.: Alexander, Johnson, Massac, Pulaski, and Union Counties, IL; Ballard and McCracken Counties, KY; and Cape Girardeau, Scott, and Mississippi Counties, MO, 47023 2015-19320 Federal Motor Federal Motor Carrier Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Annual Report of Class I and Class II Motor Carriers of Property, 47023-47024 2015-19332 Parts and Accessories Necessary for Safe Operation; Exemption Applications: TowMate, LLC, 47031-47032 2015-19333 Qualification of Drivers; Exemption Applications: Diabetes Mellitus, 47024-47030 2015-19334 Federal Railroad Federal Railroad Administration RULES Securement of Unattended Equipment, 47350-47386 2015-19002 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 46987-46988 2015-19314 Proposals To Engage in or To Acquire Companies Engaged in Permissible Nonbanking Activities, 46988 2015-19313 Federal Trade Federal Trade Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 46988-46990 2015-19378 Fish Fish and Wildlife Service PROPOSED RULES Migratory Bird Hunting: Proposed 2016-17 Migratory Game Bird Hunting Regulations (Preliminary) With Requests for Indian Tribal Proposals; Meetngs, 47388-47398 2015-19318 Food and Drug Food and Drug Administration NOTICES Guidance: Brief Summary and Adequate Directions for Use: Disclosing Risk Information in Consumer-Directed Print Advertisements and Promotional Labeling for Prescription Drugs, 46990-46993 2015-19244 Food and Nutrition Food and Nutrition Service NOTICES Required Elements for Submission of the Unified or Combined State Plan and Plan Modifications Under the Workforce Innovation and Opportunity Act, 47003-47004 2015-19286 Foreign Trade Foreign-Trade Zones Board NOTICES Subzone Expansions; Applications: Houston Refining LP, Foreign-Trade Zone 84, Houston, TX, 46954 2015-19372 Forest Forest Service NOTICES Meetings: Hood-Willamette Resource Advisory Committee, 46953 2015-19315 Health and Human Health and Human Services Department See

Centers for Medicare & Medicaid Services

See

Children and Families Administration

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

PROPOSED RULES Updating Participation in Programs by Faith-Based or Religious Organizations and Providing for Equal Treatment of Program Participants, 47272-47282 2015-18256
Health Resources Health Resources and Services Administration NOTICES Single-Case Deviation From Competition Requirement for Program Expansion: American Academy of Pediatrics, 46993-46994 2015-19260 Homeland Homeland Security Department See

Federal Emergency Management Agency

See

U.S. Customs and Border Protection

PROPOSED RULES Nondiscrimination in Matters Pertaining to Faith-Based Organizations, 47284-47299 2015-18257 NOTICES Requests for Nominations: U.S. Immigration and Customs Enforcement Advisory Committee on Family Residential Centers; Correction, 46997 2015-19284
Housing Housing and Urban Development Department PROPOSED RULES Equal Participation of Faith-Based Organizations in HUD Programs, 47302-47313 2015-18258 NOTICES Required Elements for Submission of the Unified or Combined State Plan and Plan Modifications Under the Workforce Innovation and Opportunity Act, 47003-47004 2015-19286 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

National Park Service

Internal Revenue Internal Revenue Service RULES Suspension of Benefits Under the Multiemployer Pension Reform Act; Correction, 46795-46796 2015-19364 2015-19366 PROPOSED RULES Suspension of Benefits Under the Multiemployer Pension Reform Act; Correction, 46882 2015-19365 International Trade Adm International Trade Administration RULES Dates of Application of Amendments to the Antidumping and Countervailing Duty Laws Made by the Trade Preferences Extension Act, 46793-46795 2015-19353 NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Carbazole Violet Pigment 23 From India and the People's Republic of China, 46955-46956 2015-19358 Certain Crepe Paper Products From the People's Republic of China, 46954-46955 2015-19355 Polyethylene Terephthalate Film, Sheet, and Strip From India, 46956-46959 2015-19356 2015-19357 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Passenger Vehicle and Light Truck Tires From China, 47000 2015-19319 Certain Vision-Based Driver Assistance System Cameras, Components Thereof, and Products Containing the Same, 46998-47000 2015-19287 Justice Department Justice Department PROPOSED RULES Partnerships with Faith-Based and Other Neighborhood Organizations, 47316-47326 2015-18259 Labor Department Labor Department See

Veterans Employment and Training Service

See

Wage and Hour Division

PROPOSED RULES Equal Treatment in Programs for Faith-Based and Community Organizations; Protection of Religious Liberty of Social Service Providers and Beneficiaries, 47328-47338 2015-18260 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Employer Perceptions Study for the Evaluation of Round 4 of the Trade Adjustment Assistance Community College Career Training Grants Program, 47001-47002 2015-19270 Independent Contractor Registration and Identification, 47000-47001 2015-19291
Land Land Management Bureau NOTICES Proposed Withdrawals of Public Lands: Oregon; Meeting, 46997 2015-19324 National Highway National Highway Traffic Safety Administration PROPOSED RULES Motor Vehicle Theft Prevention Standard: Preliminary Theft Data, 46930-46939 2015-19118 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 46994 2015-19344 National Institute on Alcohol Abuse and Alcoholism, 46994-46995 2015-19345 2015-19346 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Northeastern United States: Atlantic Bluefish Fishery; 2015 Atlantic Bluefish Specifications, 46848-46852 2015-19269 Atlantic Bluefish Fishery; Quota Transfer, 46848 2015-19486 Fisheries Off West Coast States: West Coast Salmon Fisheries; 2015 Management Measures; Correction, 46852 2015-19268 PROPOSED RULES Refinance of the Pacific Coast Groundfish Fishing Capacity Reduction Loan: Pacific Coast Groundfish Federal Limited-Entry Trawl, Washington Coastal Dungeness Crab and California Pink Shrimp Fisheries; Refinanced Reduction Loan Terms and Industry Fee System, 46941-46946 2015-19261 Taking and Importing Marine Mammals: Northeast Fisheries Science Center Fisheries Research; Correction, 46939-46941 2015-19310 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Atlantic Highly Migratory Species Tournament Registration and Reporting, 46960 2015-19347 Evaluation of National Estuarine Research Reserve, 46959 2015-19444 Meetings: Fisheries of the South Atlantic Southeast Data, Assessment, and Review, 46960-46961 2015-19234 National Park National Park Service NOTICES Repatriation of Cultural Items: Heard Museum, Phoenix, AZ, 46997-46998 2015-19265 National Science National Science Foundation NOTICES Meetings: Advisory Committee for Environmental Research and Education, 47006 2015-19295 Pipeline Pipeline and Hazardous Materials Safety Administration RULES Pipeline Safety: Periodic Updates of Regulatory References to Technical Standards and Miscellaneous Amendments; Corrections, 46847-46848 2015-18565 PROPOSED RULES Petitions for Reconsideration: Miscellaneous Changes to Pipeline Safety Regulations Administrative Significance, 46930 2015-19227 NOTICES Meetings: Gas Pipeline Safety and Liquid Pipeline Safety Advisory Committees, 47032-47033 2015-19296 Reagan-Udall Reagan-Udall Foundation for the Food and Drug Administration NOTICES Requests for Nominations: Steering Committee for the Foundation's Big Data for Patients Program, 47006-47007 2015-19285 Rural Housing Service Rural Housing Service PROPOSED RULES Multi-Family Housing Program Requirements to Reduce Financial Reporting Requirements, 46853-46855 2015-19342 Securities Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Chicago Mercantile Exchange, Inc., 47014-47018 2015-19290 Financial Industry Regulatory Authority, Inc., 47018-47020 2015-19289 New York Stock Exchange, LLC, 47008-47014 2015-19288 State Department State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: U.S. Passport Application Drop-Off List, 47021 2015-19336 Culturally Significant Objects Imported for Exhibition: Berlin Metropolis: 1918-1933, 47020 2015-19339 Breguet: Art and Innovation in Watchmaking, 47020-47021 2015-19337 Kongo: Power and Majesty, 47020 2015-19338 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Motor Carrier Safety Administration

See

Federal Railroad Administration

See

National Highway Traffic Safety Administration

See

Pipeline and Hazardous Materials Safety Administration

Treasury Treasury Department See

Alcohol and Tobacco Tax and Trade Bureau

See

Internal Revenue Service

NOTICES Survey of Foreign Ownership of U.S. Securities as of June 30, 2015, 47033 2015-19236
Customs U.S. Customs and Border Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Customs Modernization Act Recordkeeping Requirement, 46995-46996 2015-19370 Ship's Store Declaration, 46996 2015-19368 Veteran Affairs Veterans Affairs Department PROPOSED RULES Equal Protection of the Laws for Faith-Based and Community Organizations, 47340-47347 2015-18492 Schedule for Rating Disabilities: Hematologic and Lymphatic Systems, 46888-46900 2015-19197 Veterans Employment Veterans Employment and Training Service NOTICES Required Elements for Submission of the Unified or Combined State Plan and Plan Modifications Under the Workforce Innovation and Opportunity Act, 47003-47004 2015-19286 Wage Wage and Hour Division NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Special Employment Under the Fair Labor Standards Act, 47004-47006 2015-19272 Separate Parts In This Issue Part II Health and Human Services Department, Centers for Medicare & Medicaid Services, 47036-47139 2015-18973 Part III Health and Human Services Department, Centers for Medicare & Medicaid Services, 47142-47207 2015-19033 Part IV Agriculture Department, Agricultural Marketing Service, 47210-47235 2015-18704 Part V Agency for International Development, 47238-47241 2015-18261 Part VI Agriculture Department, 47244-47252 2015-18262 Part VII Education Department, 47254-47269 2015-18263 Part VIII Health and Human Services Department, Children and Families Administration, 47272-47282 2015-18256 Health and Human Services Department, 47272-47282 2015-18256 Part IX Homeland Security Department, 47284-47299 2015-18257 Part X Housing and Urban Development Department, 47302-47313 2015-18258 Part XI Justice Department, 47316-47326 2015-18259 Part XII Labor Department, 47328-47338 2015-18260 Part XIII Veterans Affairs Department, 47340-47347 2015-18492 Part XIV Transportation Department, Federal Railroad Administration, 47350-47386 2015-19002 Part XV Interior Department, Fish and Wildlife Service, 47388-47398 2015-19318 Reader Aids

Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.

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80 151 Thursday, August 6, 2015 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 1208 [Document Number AMS-FV-14-0042] Processed Raspberry Promotion, Research, and Information Order; Late Payment and Interest Charges on Past Due Assessments AGENCY:

Agricultural Marketing Service.

ACTION:

Final rule.

SUMMARY:

This rule prescribes late payment and interest charges on past due assessments under the Processed Raspberry Promotion, Research, and Information Order (Order). The Order is administered by the National Processed Raspberry Council (Council) with oversight by the U.S. Department of Agriculture (USDA). Under the Order, assessments are collected from domestic producers and importers and used for research and promotion projects designed to maintain and expand the market for processed raspberries. This rule implements authority contained in the Order that allows the Council to collect late payment and interest charges on past due assessments. Three additional changes are being made to reflect current practices and update the Order and regulations. The changes will contribute to effective administration of the program and were unanimously recommended by the Council.

DATES:

Effective: September 8, 2015.

FOR FURTHER INFORMATION CONTACT:

Tarun Harit, Program Management Specialist, Promotion and Economics Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., Room 1406-S, Stop 0244, Washington, DC 20250-0244; telephone: (202) 720-9915; facsimile (202) 205-2800; or electronic mail: [email protected].gov.

SUPPLEMENTARY INFORMATION:

This rule is issued under the Order (7 CFR part 1208). The Order is authorized under the Commodity Promotion, Research, and Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).

Executive Order 12866 and Executive Order 13563

Executive Orders 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules and promoting flexibility. This action has been designated as a “non-significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has waived the review process.

Executive Order 13175

This action 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.

Executive Order 12988

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the 1996 Act (7 U.S.C. 7423) provides that it shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.

Under section 519 of the 1996 Act (7 U.S.C. 7418), a person subject to an order may file a written petition with USDA stating that an order, any provision of an order, or any obligation imposed in connection with an order, is not established in accordance with the law, and request a modification of an order or an exemption from an order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, shall be filed within two years after the effective date of an order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, USDA will issue a ruling on the petition. The 1996 Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of USDA's final ruling.

Background

This rule prescribes late payment and interest charges on past due assessments under the Order. The Order is administered by the Council with oversight by USDA. Under the Order, assessments are collected from domestic producers and importers and used for research and promotion projects designed to maintain and expand markets for processed raspberries. Processed raspberries include raspberries that have been frozen, dried, pureed, made into juice, or altered by mechanical processes. This rule implements authority contained in the Order and the 1996 Act that allows the Council to collect late payment and interest charges on past due assessments. This action was unanimously recommended by the Council and will contribute to effective administration of the program.

Section 1208.52(a) of the Order specifies that the funds to cover the Council's expenses shall be paid from assessments on producers and importers, donations from persons not subject to assessments, and from other funds available to the Council. Paragraph (b) specifies that the collection of assessments on domestic processed raspberries is the responsibility of the first receiving handler of the raspberries for processing. Section 1208.52(e) specifies that “a late payment charge shall be imposed on any handler or importer who fails to remit to the Council, the total amount for which any such first handler or importer is liable on or before the due date established by the Council. In addition to the late payment charge, an interest charge shall be imposed on the outstanding amount for which the first handler or importer is liable. The rate of interest shall be prescribed in regulations issued by the Secretary.”

The Order was implemented in May 2012. Assessment collection began in September 2012. Domestic assessments are due to the Council once annually by October 31. Import assessments are collected monthly by the U.S. Customs and Border Protection (Customs). If Customs does not collect the assessment, the importer must pay the assessment directly to the Council. Entities that produce less than 20,000 pounds of raspberries for processing annually or import less than 20,000 pounds of processed raspberries annually are exempt from assessment.

Assessment funds are used by the Council for activities designed to benefit all industry members. Thus, it is important that all assessed entities pay their assessments in a timely manner. Entities who fail to pay their assessments on time could reap the benefits of Council programs at the expense of others. In addition, they could utilize funds for their own use that should otherwise be paid to the Council to finance Council programs.

Council Recommendation

Thus, the Council met on January 15, 2014, and unanimously recommended specifying rates of late payment charges and interest on past due assessments in the Order's regulations. Specifically, the Council recommended that a late payment charge be imposed on any handler or importer who fails to make timely remittance to the Council of the total assessments for which the handler or importer is liable. The late payment will be imposed on any assessments not received within 30 calendar days of the date they are due. This will be a one-time late payment charge equal to 10 percent of the assessments due before interest charges have accrued. The Council also recommended that 1 percent per month interest on the outstanding balance, including any late payment and accrued interest, be added to any accounts for which payment has not been received within 30 calendar days after the date assessments are due. Interest will continue to accrue monthly until the unpaid balance is paid to the Council.

This action will help facilitate program administration by providing an incentive for entities to remit assessments in a timely manner, with the intent of creating a fair and equitable process among all assessed entities. Accordingly, a new Subpart C is added to the Order for Provisions Implementing the Processed Raspberry Order, and a new section 1208.520 is added to Subpart C. (The proposed rule published on November 12, 2014 (79 FR 67 67103) concerning this action has been modified to revise the name of the new Subpart C to meet Federal Register guidelines.)

This rule also makes three additional changes to the Order. It revises the terms crop and fiscal years as defined in sections 1208.3 and 1208.7, respectively. The crop and fiscal years are changed in the Order from the 12-month period April 1 through March 31 to October 1 through September 30. The new time frames help facilitate program operations because domestic assessments are due by October 31, so those funds can be used to support current year activities. Revising the terms will bring the Order in line with current practices.

This rule also changes the OMB control numbers in sections 1208.78 and 1208.108. In section 1208.78, the OMB control number 0581-0257 is omitted because it is no longer relevant. In sections 1208.108, the OMB control number is changed from 0581-NEW to 0581-0093, the control number assigned by the OMB.

Final Regulatory Flexibility Act Analysis

In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS is required to examine the impact of the rule on small entities. Accordingly, AMS has considered the economic impact of this action on such entities.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. The Small Business Administration defines, in 13 CFR part 121, small agricultural producers as those having annual receipts of no more than $750,000 and small agricultural service firms (first handlers and importers) as those having annual receipts of no more than $7.0 million.

According to the Council, it is estimated that there are 160 producers of raspberries for processing and 30 first handlers of processed raspberries in the United States. Dividing the processed raspberry crop value for 2013 reported by the National Agricultural Statistics Service (NASS) of $60,883,000 1 by the number of producers yields an average annual producer revenue of $380,520. It is estimated that in 2013, 75 percent of first handlers shipped under $7.0 million worth of processed raspberries.

1 Noncitrus Fruits and Nuts 2013 Summary, July 2014, USDA, National Agricultural Statistics Service, p. 37.

Likewise, based on Customs data, it is estimated there are 140 importers of processed raspberries. Using 2013 Customs data, nearly all importers, or 99 percent, import less than $7.0 million worth of processed raspberries annually. Thus, the majority of domestic producers, first handlers and importers of processed raspberries would be considered small entities.

Regarding the value of the commodity, as mentioned above, based on 2013 NASS data, the value of the domestic processed raspberry crop was about $61 million. According to Customs data, the value of 2013 imports was about $65 million.

This rule prescribes late payment and interest charges on past due assessments under the Order. The Order is administered by the Council with oversight by USDA. Under the Order, assessments are collected from domestic producers of raspberries for processing and importers of processed raspberries. Processed raspberries include raspberries that have been frozen, dried, pureed, made into juice, or altered by mechanical processes. This rule adds a new section 1208.520 that will specify a late payment charge of 10 percent of the assessments due and interest at a rate of 1 percent per month on the outstanding balance, including any late payment and accrued interest. This section will be included in a new Subpart C—Provisions for Implementing the Processed Raspberry Promotion, Research, and Information Order. This action was unanimously recommended by the Council and is authorized under section 1208.52(e) of the Order and section 517(e) of the 1996 Act.

Regarding the economic impact of this rule on affected entities, this action imposes no costs on handlers and importers who pay their assessments on time. It merely provides an incentive for entities to remit their assessments in a timely manner. For all entities who are delinquent in paying assessments, both large and small, the charges will be applied the same. As for the impact on the industry as a whole, this action will help facilitate program administration by providing an incentive for entities to remit their assessments in a timely manner, with the intent of creating a fair and equitable process among all assessed entities.

Additionally, as previously mentioned, the Order provides for an exemption for entities that produce or import less than 20,000 pounds of processed raspberries annually. About 140 producers of raspberries for processing and 80 importers of processed raspberries pay assessments under the Order.

Regarding alternatives, one option to the proposed action would be to maintain the status quo and not prescribe late payment and interest charges for past due assessments. However, the Council determined that implementing such charges will help facilitate program administration by encouraging entities to pay their assessments in a timely manner. The Council reviewed rates of late payment and interest charges prescribed in other research and promotion programs and concluded that a 10 percent late payment charge and interest at a rate of 1 percent per month on the outstanding balance would be appropriate.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements that are imposed by the Order have been approved under OMB control number 0581-0093. This rule results in no change to the information collection and recordkeeping requirements previously approved and imposes no additional reporting and recordkeeping burden on domestic producers, first handlers, and importers of processed raspberries.

As with all Federal promotion programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. Finally, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

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.

Regarding outreach efforts, the Council met on January 15, 2014, and unanimously made its recommendation. All of the Council's meetings, including meetings held via teleconference, are open to the public and interested persons are invited to participate and express their views.

As previously mentioned, a proposed rule concerning this action was published in the Federal Register on November 12, 2014 (79 FR 67103). The proposal was made available through the Internet by USDA and the Office of the Federal Register. A 30-day comment period ending December 12, 2014 was provided to allow interested persons to submit comments. No comments were received. One change was made to section 1208.520(2) for clarification purposes, the addition of the word “charge” after the words “late payment”.

After consideration of all relevant matters presented, including the information and recommendation submitted by the Council and other available information, it is hereby found that this rule, as hereinafter set forth, is consistent with and will effectuate the purposes of the 1996 Act.

List of Subjects in 7 CFR Part 1208

Administrative practice and procedure, Advertising, Consumer information, Marketing agreements, Raspberry promotion, Reporting and recordkeeping requirements.

For the reasons set forth in the preamble, 7 CFR part 1208 is amended as follows:

PART 1208—PROCESSED RASPBERRY PROMOTION, RESEARCH, AND INFORMATION ORDER 1. The authority citation for 7 CFR part 1208 continues to read as follows: Authority:

7 U.S.C. 7411-7425; 7 U.S.C. 7401.

2. Section 1208.3 is revised to read as follows:
§ 1208.3 Crop year.

Crop year means the 12-month period from October 1 through September 30 or such other period approved by the Secretary.

3. Section 1208.7 is revised to read as follows:
§ 1208.7 Fiscal period.

Fiscal period means the 12-month period from October 1 through September 30 or such other period as approved by the Secretary.

4. Section 1208.78 is revised to read as follows:
§ 1208.78 OMB control numbers.

The control number assigned to the information collection requirements by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, is OMB control number 0505-0001, and OMB control number 0581-0093.

5. Section 1208.108 is revised to read as follows:
§ 1208.108 OMB control number.

The control number assigned to the information collection requirement in this subpart by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, is OMB control number 0581-0093.

6. Add Subpart C, consisting of § 1208.520, to read as follows: Subpart C—Provisions Implementing the Processed Raspberry Promotion, Research, and Information Order
§ 1208.520 Late payment and interest charges for past due assessments.

(a) A late payment charge shall be imposed on any handler or importer who fails to make timely remittance to the Council of the total assessments for which such handler or importer is liable. The late payment will be imposed on any assessments not received within 30 calendar days of the date they are due. This one-time late payment charge shall be 10 percent of the assessments due before interest charges have accrued.

(b) In addition to the late payment charge, 1 percent per month interest on the outstanding balance, including any late payment charge and accrued interest, will be added to any accounts for which payment has not been received by the Council within 30 calendar days after the date the assessments are due. Such interest will continue to accrue monthly until the outstanding balance is paid to the Council.

Dated: August 3, 2015. Rex A. Barnes, Associate Administrator.
[FR Doc. 2015-19325 Filed 8-5-15; 8:45 am] BILLING CODE 3410-02-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 65 [Docket No. FAA-2014-1000; Amdt. No. 65-56A] RIN 2120-AK40 Elimination of the Air Traffic Control Tower Operator Certificate for Controllers Who Hold a Federal Aviation Administration Credential With a Tower Rating AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule; disposition of comments.

SUMMARY:

On December 16, 2014, the FAA published a final rule with a request for comments that eliminated the requirement for an air traffic control tower operator to hold a control tower operator certificate if the individual also holds a Federal Aviation Administration Credential with a tower rating (FAA Credential). This action addresses the public comment the FAA received.

DATES:

The final rule effective date remains February 17, 2015.

ADDRESSES:

The docket may be read at http://www.regulations.gov at any time. Follow the online instructions for accessing the docket. The docket may also be accessed at the Docket Operations in Room W12-140 of the West Building Ground Floor, Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

For technical questions concerning this action, contact Michele Cappelle, Air Traffic Safety Oversight Service, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-5205; email [email protected]

For legal questions concerning this action, contact Neal O'Hara, Attorney, Office of the Chief Counsel, Regulations Division, AGC-240, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-3073; email neal.o'[email protected]

SUPPLEMENTARY INFORMATION:

Background

On December 16, 2014, the FAA published a final rule that eliminated the requirement for an air traffic control tower operator to hold a control tower operator (CTO) certificate if the individual also holds an FAA Credential (79 FR 74607). The requirement to hold both the CTO certificate and the FAA Credential was redundant since the underlying requirements for the FAA Credential encompass those of the CTO certificate. The action will reduce the FAA's burden of administering redundant programs for those individuals who hold an FAA Credential.

Discussion of Comments

The FAA received one comment from the National Air Traffic Controllers Association—AFL-CIO (NATCA). NATCA had several concerns with the rule.

NATCA opposes the elimination of the CTO certificate. NATCA believes that if the FAA eliminates the requirement for the CTO certificate, important training requirements risk elimination, which will result in a significant lack of appropriate oversight and create disparities between FAA and non-FAA tower Air Traffic Control Specialists.

The FAA notes the training requirements for air traffic controllers have not changed because of this rulemaking. All FAA air traffic controllers must adhere to the requirements in FAA Order JO 3120.4, Air Traffic Technical Training. The final rule simply eliminated duplicative programs that only applied to a portion of the FAA controller workforce. Before February 17, 2015 (the effective date of the final rule), air traffic controllers assigned to control towers were required to possess a CTO certificate issued in accordance with 14 Code of Federal Regulations (14 CFR) part 65, subpart B. CTO certificates were only required for air traffic controllers working in a control tower; no such requirement existed for air traffic controllers assigned to approach control or en-route air traffic control facilities. In addition, once a CTO certificate was issued, it remained valid with no recurrent or refresher training requirements to ensure the holder still possessed the skills demonstrated at the time the CTO certificate was awarded.

When the FAA Credentialing program was introduced in 2006, it included all FAA controllers, not just tower controllers as in the CTO program. In addition, the emphasis was shifted to ensuring safety-related personnel retained the skills necessary to perform their responsibilities. Under the FAA Credentialing program, the individual must: (1) Complete all required training in accordance with FAA standards; (2) undergo required certification; and (3) successfully complete the initial skills evaluation to be issued an FAA Credential with an appropriate rating. Once issued, the rating associated with the FAA Credential is valid for 2 years, after which the individual undergoes another skills evaluation similar to the one used for the initial certification. The biennial skills evaluation is required for all air traffic controllers, regardless of their assignment to a tower, approach control, or en-route air traffic control facility.

NATCA is also concerned that the knowledge, skill, and experience requirements in part 65 for CTO certificate holders have not been properly incorporated into FAA Orders and that no analysis was performed.

During the rulemaking process, the FAA reviewed part 65, subpart B, and made appropriate changes to FAA Order 8000.90 upon issuance of the final rule. As noted in FAA Order 8000.90, the FAA Credentialing program incorporates the current training, certification, and qualification requirements that form the basis from which the Air Traffic Safety Oversight Service issues, amends, withdraws, and removes FAA Credentials. The Air Traffic Organization must adhere to the requirements in FAA Orders regarding the training, proficiency, and certification of personnel. These orders include FAA Order JO 3120.4, Air Traffic Technical Training and FAA Order JO 3000.57, Air Traffic Organization Technical Operations Training and Personnel Certification Programs. The Air Traffic Organization also must ensure that changes to FAA Orders JO 3120.4 and JO 3000.57 or other directives related to training, proficiency, and certification, are submitted for Air Traffic Safety Oversight Office (AOV) review and acceptance.

NATCA states that if “the requirements are eliminated for FAA credentialed Air Traffic Control Specialists, they need to be retained in another provision of Regulation or Statute to ensure proper oversight.” NATCA believes FAA Orders may be changed at-will and are not subject to the Administrative Procedure Act (APA). NATCA states there is no check and balance to oversee the FAA's changes to these critical matters that are currently covered by regulation and subject to oversight.

FAA Orders serve as the primary means within the FAA to issue, establish, and describe agency policies, organization, responsibilities, methods, and procedures governing FAA employees. FAA Order 1320.1 contains the requirements to issue Orders. Also, in 1997, the National Civil Aviation Review Commission (NCARC) recommended that the air traffic service provider in FAA be subject to the safety policies of a separate part of the FAA to provide independent safety oversight. In addition, in 2001, the International Civil Aviation Organization (ICAO) adopted an amendment requiring states to implement formal safety management procedures for their air traffic services systems.

FAA Order 1100.161 specifies the manner by which AOV, within the Office of the Associate Administrator for Aviation Safety (AVS), will oversee the Air Traffic Organization (ATO), and other organizations within the Federal Aviation Administration (FAA) regarding safety management of the air traffic system. AOV's safety oversight responsibilities remain the same whether certain Air Traffic requirements are contained in 14 CFR or in FAA Orders. Thus, there is no erosion of oversight of these important training and certification requirements.

NATCA notes that military and Department of Defense civilian controllers, as well as controllers working in Federal Contract Towers, are issued CTO certificates. NATCA states that these air traffic controllers, as well FAA air traffic controllers, regularly transfer between these employers. NATCA is concerned these transfers will be stifled or new bureaucracies will need to be created to ensure equivalent qualifications before transfer.

The underlying requirements for the FAA Credential encompass those of the CTO certificate. In addition, the FAA Credential includes the biennial skills evaluation discussed previously. Therefore, the FAA does not expect movement between employers to be stifled.

NATCA states that the FAA's final rule does not address how the FAA will maintain CTO certificates for incumbent employees for whom they will not be eliminated.

The procedures for current CTO certificate holders have not changed. Therefore, no additional changes were needed to 14 CFR part 65.

NATCA states that FAA should have collaborated with them on the development of any changes to the CTO certification process.

The FAA followed the procedures and requirements of the Administrative Procedure Act as well as those prescribed by FAA Order 1320.1.

Finally, NATCA requested that the FAA withdraw the rule and include FAA Credential holders in 14 CFR part 65. NATCA notes that under such an amendment, all certified controllers, whether holding a CTO certificate or an FAA Credential would be subject to the same rules, any subsequent rule changes would be subject to due process because they would require amendments to 14 CFR, and it would eliminate redundant processes.

The FAA followed the requirements in the Administrative Procedure Act and FAA Order 1320.1. Because FAA Orders serve as the primary means within the FAA to issue, establish, and describe agency policies, organization, responsibilities, methods, and procedures for FAA employees, the FAA has determined its actions are appropriate and have eliminated redundant processes.

Conclusion

After consideration of the comment submitted in response to the final rule, the FAA has determined that no revisions to the rule are warranted.

Issued in Washington, DC on July 27, 2015. Anthony S. Ferrante, Director, Air Traffic Safety Oversight Service.
[FR Doc. 2015-19278 Filed 8-5-15; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF COMMERCE International Trade Administration 19 CFR Part 351 RIN 0625-AB04 [Docket No.: 150731663-5663-01] Dates of Application of Amendments to the Antidumping and Countervailing Duty Laws Made by the Trade Preferences Extension Act of 2015 AGENCY:

Enforcement and Compliance, International Trade Administration, Department of Commerce.

ACTION:

Interpretive Rule; Notice of Determination.

SUMMARY:

On June 29, 2015, President Obama signed into law the Trade Preferences Extension Act of 2015. The Act provides a number of amendments to the antidumping duty (“AD”) and countervailing duty (“CVD”) laws but does not specify dates of application for those amendments. This notice of determination establishes a date of application for each statutory revision pertaining to the Department of Commerce and provides notice thereof to all interested parties to AD and CVD proceedings and to the public.

DATES:

The date of application of this interepretive rule is August 6, 2015.

FOR FURTHER INFORMATION CONTACT:

Robert Heilferty, Deputy Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, 1401 Constitution Ave. NW., Washington, DC 20230, 202-482-0082.

SUPPLEMENTARY INFORMATION: Background

The Trade Preferences Extension Act of 2015, Public Law 114-27 (the “Act”) provides five amendments to the AD and CVD laws: (1) Section 502 amends Section 776 of the Tariff Act of 1930, 19 U.S.C. 1677e, to modify the provisions addressing the selection and corroboration of certain information that may be used as facts otherwise available with an adverse inference in an AD or CVD proceeding; (2) Section 503 amends Section 771(7) of the Tariff Act of 1930, 19 U.S.C. 1677(7), to modify the definition of “material injury” in AD and CVD proceedings; (3) Section 504 amends Section 771(15) of the Tariff Act of 1930, 19 U.S.C. 1677(15), and Section 773 of the Tariff Act of 1930, 19 U.S.C. 1677b, to modify the definition of “ordinary course of trade” and the provisions governing the treatment of a “particular market situation” in AD proceedings; (4) Section 505 amends Section 773(b)(2) of the Tariff Act of 1930, 19 U.S.C. 1677b(b)(2), to modify the treatment of distorted prices or costs in AD proceedings; and (5) Section 506 amends Section 782(a) of the Tariff Act of 1930, 19 U.S.C. 1677m(a), to modify the provision regarding accepting voluntary respondents in AD and CVD proceedings.

The Act does not contain dates of application for any of these amendments. As explained below, it would be impracticable for the Department to apply at least one of the amendments, Section 505, immediately, and extremely difficult to apply the others immediately. Accordingly, the Department is establishing dates of application for each section, except for Section 503 (which relates to determinations of material injury by the U.S. International Trade Commission).

As an initial matter, we are cognizant of the Supreme Court's ruling in Landgraf v. USI Film Prods., 511 U.S. 244 (1994), that, absent clear Congressional intent that a statute be applied retroactively, a statute may not attach new legal consequences to events completed before its enactment. Landgraf, 511 U.S. at 280; see also, AT&T Corp. v. Hulteen, 556 U.S. 701 (2009). In determining whether the Landgraf prohibition has been breached, important considerations are whether the new law takes away or impairs vested rights or creates new obligations, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past. Landgraf, 511 U.S. at 269. Another important consideration is whether the prior provision was reasonably relied upon, so that application of the new provision would be manifestly unfair. INS v. St. Cyr, 533 U.S. 289 (2001).

In considering whether application of the amended statutes to merchandise entered into the United States before the passage of the Act would disturb vested rights, create new obligations or upset a reasonable reliance, our starting point is the holding of the Supreme Court in Buttfield v. Stranahan, 192 U.S. 470, 493 (1904), that “no individual has a vested right to trade with foreign nations. . . .” and that importing merchandise is not a fundamental right that is protected by other constitutional privileges such as due process. See also NEC Corp. v. United States, 151 F.3d 1361, 1369 (Fed. Cir. 1998). More specifically, the Supreme Court held in Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 318 (1933), that no party has a legal right to a particular rate of duty.

It follows that, even assuming that one or more of the Act's amendments were to result in a higher rate of duty being applied to imported merchandise than otherwise would have been applied, application of that higher rate would not disturb a vested right, attach a new disability to transactions or considerations already past, or upset any legitimate expectation. In other words, the Act does not attach any “new” legal consequences to past events, because those events had no settled legal consequences to begin with and, therefore, created no legitimate expectations concerning duty rates. As the Court of Appeals for the Federal Circuit (“Federal Circuit”) recently observed in GPX Int'l Tire Corp. v. United States, 780 F.3d 1136, 1144 (Fed. Cir. 2015) “[a]lthough trade duties are forward-looking in part, the government also has a clear interest in fashioning a remedy for damaging past acts, `level[ing] the playing field for particular American manufacturers,' and `remedy[ing] the harm American manufacturers and their workers experience as a result of unfair trade practices' ” (quoting Guangdong Wireking Housewares & Hardware Co. v. United States, 745 F.3d 1194, 1206 (Fed. Cir. 2014)).

Other decisions of the Federal Circuit are in accord. In Parkdale Int'l v. United States, 475 F.3d 1375 (Fed. Cir. 2007), the Federal Circuit ruled that the application of the Department's new policy for resellers sales that preceded the announcement of that change in policy was not impermissibly retroactive. The Federal Circuit based its decision primarily on the fact that, under the U.S. system of duty assessment, final duty liability is not set until the entries of the imported merchandise are liquidated, which is often many years after the date of entry. See, e.g., 19 U.S.C. 1675(a)(2)(C). Thus, importers bring goods into the United States with full knowledge that the rates of estimated duties deposited with U.S. Customs and Border Protection upon importation may change. In Travenol Labs., Inc. v. United States, 118 F.3d 749, 753-54 (Fed. Cir. 1997), the Federal Circuit ruled that the application of an amendment to customs law that changed the time period in which interest was calculated for overpayment of duties to goods that entered the United States prior to enactment of the law was not impermissibly retroactive.

Many decisions of the Court of International Trade agree. In GPX Int'l Tire Corp. v. United States, 893 F. Supp. 2d 1296, 1314 (Ct. Int'l. Trade 2013), the court observed that “customs duties are to an extent unique from other government assessments in that there is no right to import, and where unfair trade remedies apply those with goods that may be imported rarely can predict with accuracy what the duty will be [referencing Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 318 (1933)]. For example, when goods become the subject of an AD/CVD investigation, liquidation is suspended while the initial investigation is undertaken, and generally while a review is conducted, prior to a final rate determination and duty assessment. See Parkdale Int'l v. United States, 475 F.3d 1375, 1376-77 (Fed. Cir. 2007).” Similarly, in Yamani Fishing Net Co. v. United States, 830 F. Supp. 1502, 1507 (Ct. Int'l Trade 1993), the Court ruled that the application of a new regulation creating additional requirements for the submission of information to Commerce to a segment of an AD proceeding initiated before the promulgation of that regulation was not impermissibly retroactive.

Based on these precedents, we have determined that implementing these statutory amendments immediately, including to merchandise which entered into the United States before the passage of the Act, would not be impermissibly retroactive. In determining dates of application, therefore, we have been guided by Congress's intention that each amendment be implemented as soon as practicably possible. Accordingly, we have determined the earliest date at which each amendment practicably could be implemented and established that date as the date of application of that particular revision to the statute. This approach results in individual dates of application for different provisions of the Act, as explained below.

Section 502 of the Act amends Section 776 of the Tariff Act of 1930, 19 U.S.C. 1677e, to revise the provisions addressing the selection and corroboration of certain information that may be used as an adverse inference in applying facts available in an AD or CVD proceeding. These amendments provide that the Department may rely on, and is not required to adjust, certain information used as an adverse inference in applying facts available in an AD or CVD proceeding. They do not impose any new requirements on the parties to such proceedings that would require them to submit additional information or argument. Accordingly, we will apply this provision to determinations made on or after August 6, 2015.

We note that Section 502 provides that, in making AD and CVD determinations on the basis of the facts available, the Department is not required to corroborate, in certain circumstances, the information employed, to make certain estimates or demonstrations concerning that information, or to address certain claims regarding the “alleged commercial reality” of non-cooperating parties. Because this section addresses the Department's discretion and, thus, does not require the Department to take any specific actions with respect to facts available determinations, it will be applied to determinations made on or after August 6, 2015. Although the amendment does not interfere with the operation of 19 CFR 351.308(d), the Department intends to consider whether to amend that regulation as a result of the amendment to the statute.

Section 504 of the Act amends Sections 771(15) of the Tariff Act of 1930, 19 U.S.C. 1677(15), and Section 773 of the Tariff Act of 1930, 19 U.S.C. 1677b, to modify the definition of “ordinary course of trade” and the provisions governing the treatment of a “particular market situation” in AD proceedings. Because this section codifies the Department's discretion and does not require the Department to take any action with respect to particular market situations, we will apply this provision to determinations made on or after August 6, 2015. The Department's regulation, 19 CFR 351.301(c)(2)(i), establishes a deadline for “particular market situation” allegations of “10 days after the respondent interested party files the response to the relevant section of the questionnaire, unless the Secretary alters this time limit.” The amendment does not require the alteration of this deadline, and so the regulation will continue to apply as before.

Section 505 of the Act amends Section 773(b)(2) of the Tariff Act of 1930, 19 U.S.C. 1677b(b)(2), to modify the treatment of distorted prices or costs in AD proceedings. It has two parts. Under the first part of the amendment of Section 773(b)(2) of the Tariff Act of 1930, 19 U.S.C. 1677b(b)(2), the Department will request constructed value and cost of production information from respondent companies in all AD proceedings. The Department recognizes that it can cannot ask for such information in ongoing proceedings in which the time for doing so has passed. Accordingly, the Department will apply the new law to determinations in which the complete initial questionnaire has not been issued as of August 6, 2015.

The second part of Section 505 amends Section 773(c)(5) of the Tariff Act of 1930, 19 U.S.C. 1673b(c)(5), to permit the Department to disregard price or cost values without further investigation if it has determined that certain subsidies have existed with respect to those values, or if those price or cost values were subject to an AD order. This amendment clarifies the Department's authority for its existing practice, and does not impose any new requirements on the parties to AD proceedings that would require them to submit additional information or argument. Accordingly, we will apply this provision to determinations made on or after August 6, 2015.

Section 506 of the Act amends Section 782(a) of the Tariff Act of 1930, 19 U.S.C. 1677m(a), to identify the factors that the Department may take into account in determining whether accepting voluntary responses would be unduly burdensome. This amendment compliments the Department's voluntary respondent analysis and does not require parties to AD and CVD proceedings to submit additional information or argument. Accordingly, we will apply this provision to determinations made on or after August 6, 2015.

Classification

Pursuant to 5 U.S.C. 553(b)(A), notice and comment are not required for this rule because its intent is to interpret the Trade Preferences Extension Act to apply as explained above and to provide notice to the public. This interpretation is meant to lend clarity to the statutory terms and will reduce or eliminate any possible confusion about the application of the Act without creating any new law, rights or duties. See General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984) (en banc) (finding that EPA's rule was interpretive because “the agency regarded its rule as interpretive”; “[its] entire justification for the rule is comprised of reasoned statutory interpretation, with reference to the language, purpose and legislative history of the [provision]”; and “most importantly, the rule did not create any new rights or duties . . .”). Because notice and an opportunity for comment are not required, no regulatory flexibility analysis is required and none has been prepared. The rule has been determined to be not significant for purposes of Executive Order 12866.

Dated: July 31, 2015. Ronald K. Lorentzen Acting Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2015-19353 Filed 8-5-15; 8:45 am] BILLING CODE 3510-DS-P
DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9723] RIN 1545-BM73 Suspension of Benefits Under the Multiemployer Pension Reform Act of 2014; Correction AGENCY:

Internal Revenue Service (IRS), Treasury.

ACTION:

Correcting amendment.

SUMMARY:

This document contains corrections to temporary regulations (TD 9723) that were published in the Federal Register on Friday, June 19, 2015 (80 FR 35207). The temporary regulations relate to multiemployer pension plans that are projected to have insufficient funds, at some point in the future, to pay the full benefits to which individuals will be entitled under the plans (referred to as plans in “critical and declining status”).

DATES:

This correction is effective August 6, 2015 and applicable June 19, 2015.

FOR FURTHER INFORMATION CONTACT:

Department of the Treasury MPRA guidance information line at (202) 622-1559 (not a toll-free number).

SUPPLEMENTARY INFORMATION:

Background

The temporary regulations (TD 9723) that are the subject of this correction are under section 432(e)(9) of the Internal Revenue Code.

Need for Correction

As published, the temporary regulations (TD 9723) contain an error that may prove to be misleading and are in need of clarification.

List of Subjects in 26 CFR Part 1

Income taxes, Reporting and recordkeeping requirements.

Correction of Publication

Accordingly, 26 CFR part 1 is amended by making the following correcting amendments:

PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority:

26 U.S.C. 7805 * * *

Par. 2. Section 1.432(e)(9)-1T is amended by revising the first sentence of paragraph (g)(1)(v) to read as follows:
§ 1.432(e)(9)-1T Benefit suspensions for multiemployer plans in critical and declining status (temporary).

(g) * * *

(1) * * *

(v) * * * An application for suspension that is not submitted in combination with an application to PBGC for a plan partition under section 4233 of ERISA generally will not be accepted unless the proposed effective date of the suspension is at least nine months from the date on which the application is submitted. * * *

Martin V. Franks, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration).
[FR Doc. 2015-19364 Filed 8-5-15; 8:45 am] BILLING CODE 4830-01-P
DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Parts 1 and 602 [TD 9723] RIN 1545-BM73 Suspension of Benefits Under the Multiemployer Pension Reform Act of 2014; Correction AGENCY:

Internal Revenue Service (IRS), Treasury.

ACTION:

Temporary regulations; correction.

SUMMARY:

This document contains corrections to temporary regulations (TD 9723) that were published in the Federal Register on Friday, June 19, 2015 (80 FR 35207). The temporary regulations relate to multiemployer pension plans that are projected to have insufficient funds, at some point in the future, to pay the full benefits to which individuals will be entitled under the plans (referred to as plans in “critical and declining status”).

DATES:

This correction is effective August 6, 2015 and applicable June 19, 2015.

FOR FURTHER INFORMATION CONTACT:

Department of the Treasury MPRA guidance information line at (202) 622-1559 (not a toll-free number).

SUPPLEMENTARY INFORMATION:

Background

The temporary regulations (TD 9723) that are the subject of this correction are under section 432(e)(9) of the Internal Revenue Code.

Need for Correction

As published, the temporary regulations (TD 9723) contain errors that may prove to be misleading and are in need of clarification.

Correction of Publication Accordingly, the temporary regulations (TD 9723), that are subject to FR Doc. 2015-14945, are corrected as follows: 1. On page 35207, in the preamble, third column, third line, under paragraph heading “Paperwork Reduction Act,” the language “procedure pursuant to the” is corrected to read “comment pursuant to the”. 2. On page 35210, in the preamble, second column, ninth line, under paragraph heading “Suspension Applications,” the language “is eligible for the suspensions and has” is corrected to read “is eligible for the suspension and has”. 3. On page 35215, in the preamble, third column, third line, under paragraph heading “Contact Information,” the language “Department of the Treasury at (202)” is corrected to read “Department of the Treasury MPRA guidance information line at (202)”. Martin V. Franks, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration).
[FR Doc. 2015-19366 Filed 8-5-15; 8:45 am] BILLING CODE 4830-01-P
DEPARTMENT OF DEFENSE Office of the Secretary 32 CFR Part 199 [Docket ID: DOD-2015-HA-0062] RIN 0720-AB64 Civilian Health and Medical Program of the Uniformed Services (CHAMPUS)/TRICARE: Refills of Maintenance Medications Through Military Treatment Facility Pharmacies or National Mail Order Pharmacy Program AGENCY:

Office of the Secretary, Department of Defense (DoD).

ACTION:

Interim final rule.

SUMMARY:

This interim final rule implements Section 702 (c) of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 which states that beginning October 1, 2015, the pharmacy benefits program shall require eligible covered beneficiaries generally to refill non-generic prescription maintenance medications through military treatment facility pharmacies or the national mail-order pharmacy program. Section 702(c) of the National Defense Authorization Act for Fiscal Year 2015 also terminates the TRICARE For Life Pilot Program on September 30, 2015. The TRICARE For Life Pilot Program described in Section 716 (f) of the National Defense Authorization Act for Fiscal Year 2013, was a pilot program which began in March 2014 requiring TRICARE For Life beneficiaries to refill non-generic prescription maintenance medications through military treatment facility pharmacies or the national mail-order pharmacy program. TRICARE for Life beneficiaries are those enrolled in the Medicare wraparound coverage option of the TRICARE program. This interim rule includes procedures to assist beneficiaries in transferring covered prescriptions to the mail order pharmacy program. This regulation is being issued as an interim final rule in order to comply with the express statutory intent that the program begin October 1, 2015. Public comments, however, are invited and will be considered for possible revisions to this rule for the second year of the program.

DATES:

This rule is effective August 6, 2015. Written comments received at the address indicated below by October 5, 2015 will be considered and addressed in the final rule.

ADDRESSES:

You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) number and title, by any of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate for Oversight and Compliance, Regulatory and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-9010.

Instructions: All submissions received must include the agency name and docket number or RIN for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT:

Dr. George Jones, Chief, Pharmacy Operations Division, Defense Health Agency, telephone 703-681-2890.

SUPPLEMENTARY INFORMATION: A. Executive Summary 1. Purpose

The legal authority for this rule is Section 702 of the National Defense Authorization Act for Fiscal Year 2015.

This interim final rule implements Section 702 (c) of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 which states that beginning October 1, 2015, the pharmacy benefits program shall require eligible covered beneficiaries generally to refill non-generic prescription maintenance medications through military treatment facility pharmacies or the national mail-order pharmacy program. Eligible covered beneficiaries are defined in sections 1072 (5) and 1086 of title 10, United States Code.

2. Summary of the Major Provisions of the Interim Final Rule

TRICARE beneficiaries are generally required to obtain all prescription refills for select non-generic maintenance medications from the TRICARE mail order program (where beneficiary copayments are much lower than in retail pharmacies) or military treatment facilities (where there are no copayments). Covered maintenance medications are those prescribed for chronic, long-term conditions that are taken on a regular, recurring basis, but do not include medications to treat acute conditions. TRICARE will follow best commercial practices, including that beneficiaries will be notified of the new rules and mechanisms to allow them to receive adequate medication during their transition to mail for their refills. The statute and rule authorize a waiver of the mail order requirement based on patient needs and other appropriate circumstances.

3. Costs and Benefits

The effect of the statutory requirement, implemented by this rule, is to shift a volume of prescriptions from retail pharmacies to the mail order pharmacy program. This will produce savings to the Department of approximately $88M per year and savings to beneficiaries of approximately $16.5 million per year in reduced copayments.

B. Background

In Fiscal Year 2014, 61 million prescriptions were filled for TRICARE beneficiaries through the TRICARE retail pharmacy benefit at a net cost of $5.1 billion to the government. On average, the government pays 32% less for brand name maintenance medication prescriptions filled in the mail order program or military treatment facility pharmacies than through the retail program. Not all prescriptions filled through the retail program are maintenance/chronic medications. However, there is potential for significant savings to the government by shifting a portion of TRICARE prescription refills to the mail order program or military treatment facility pharmacies. In addition, there will be significant savings to TRICARE beneficiaries who will receive up to a 90 day refill at no charge for generics in the mail order program compared to $8 copay for up to a 30 day in retail. The savings is even greater for brand-name prescriptions: $16 for up to 90 days in mail versus $20 for up to 30 days in retail, meaning that for a 90-day supply the copayment comparison is $16 in mail to $60 in retail. The non-formulary copayment comparison is $46 for up to 90 days in mail compared to $46 for up to 30 days in retail.

C. Provisions of the Interim Final Rule

The interim final rule revises paragraph (r) to 32 CFR 199.21. Paragraph (r) establishes rules for the new program of refills of maintenance medications for TRICARE through the mail order pharmacy program. Paragraph (r)(1) requires that for covered maintenance medications, TRICARE beneficiaries are generally required to obtain their prescription refills through the national mail order pharmacy program or through military treatment facility pharmacies. TRICARE beneficiaries are defined in sections 1072 (5) and 1086 of title 10, United States Code, including those enrolled in the Medicare wraparound coverage option of the TRICARE program.

Paragraph (r)(2) provides that the Director, Defense Health Agency will establish, maintain, and periodically revise and update a list of covered maintenance medications, which will be accessible through the TRICARE Pharmacy Program Web site and by telephone through the TRICARE Pharmacy Program Service Center. Each medication included on the list will be a medication prescribed for a chronic, long-term condition that is taken on a regular, recurring basis. It will be clinically appropriate and cost effective to dispense the medication from the mail order pharmacy. It will be available for an initial filling of a 30-day or less supply through retail pharmacies, and will be generally available at military treatment facility pharmacies for initial fill and refills. It will be available for refill through the national mail-order pharmacy.

Paragraph (r)(3) provides that a refill is a subsequent filling of an original prescription under the same prescription number or other authorization as the original prescription, or a new original prescription issued at or near the end date of an earlier prescription for the same medication for the same patient.

Paragraph (r)(4) provides that a waiver of the general requirement to obtain maintenance medication prescription refills from the mail order pharmacy or military treatment facility pharmacy will be granted in several circumstances. There is a blanket waiver for prescription medications that are for acute care needs. There is also a blanket waiver for prescriptions covered by other health insurance. There is a case-by-case waiver to permit prescription maintenance medication refills at a retail pharmacy when necessary due to personal need or hardship, emergency, or other special circumstance, for example, for nursing home residents. This waiver is obtained through an administrative override request to the TRICARE pharmacy benefits manager under procedures established by the Director, Defense Health Agency.

Paragraph (r)(5) establishes procedures for the effective operation of the program. The Department will implement the program by utilizing best commercial practices to the extent practicable. An effective communication plan that includes efforts to educate beneficiaries in order to optimize participation and satisfaction will be implemented. Beneficiaries with active prescriptions for a medication on the maintenance medication list will be notified that their medication is covered under the program. Beneficiaries will be advised that they may receive up to two 30 day fills at retail while they transition their prescription to the mail order program. The beneficiary will be contacted after each of these two fills reminding the beneficiary that the prescription must be transferred to mail. Requests for a third fill at retail will be blocked and the beneficiary advised to call the pharmacy benefits manager (PBM) for assistance. The PBM will provide a toll free number to assist beneficiaries in transferring their prescriptions from retail to the mail order program. With the beneficiary's permission, the PBM will contact the physician or other health care provider who prescribed the medication to assist in transferring the prescription to the mail order program. In any case in which a beneficiary is required to obtain a maintenance medication prescription refill from the national mail-order pharmacy program and attempts instead to refill such medications at a retail pharmacy, the PBM will also maintain the toll free number to assist the beneficiary. This assistance may include information on how to request a waiver or in taking any other appropriate action to meet the beneficiary's needs and to implement the program. The PBM will ensure that a pharmacist is available at all times through the toll-free telephone number to answer beneficiary questions or provide other appropriate assistance.

Paragraph (r)(6) provides that the program will remain in effect indefinitely with any adjustments or modifications required by law.

D. Regulatory Procedures Executive Order 12866, “Regulatory Planning and Review” and Executive Order 13563, “Improving Regulation and Regulatory Review”

Executive Orders (EOs) 12866 and 13563 require that a comprehensive regulatory impact analysis be performed on any economically significant regulatory action, defined primarily as one that would result in an effect of $100 million or more in any one year. The DoD has examined the economic and policy implications of this interim rule and has concluded that this is not an economically significant regulatory action under the Executive Order. The program rule will produce savings to the Department of approximately $88M per year and savings to beneficiaries of approximately $16.5 million per year in reduced copayments. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB).

Congressional Review Act, 5 U.S.C. 801, et seq.

Under the Congressional Review Act, a major rule may not take effect until at least 60 days after submission to Congress of a report regarding the rule. A major rule is one that would have an annual effect on the economy of $100 million or more or have certain other impacts. This interim rule is not a major rule under the Congressional Review Act.

Section 202, Pub. L. 104-4, “Unfunded Mandates Reform Act”

This rule does not contain a Federal mandate that may result in the expenditure by State, local and tribunal governments, in aggregate, or by the private sector, of $100 million or more (adjusted for inflation) in any one year.

Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601)

The Regulatory Flexibility Act (RFA) requires that each Federal agency prepare and make available for public comment, a regulatory flexibility analysis when the agency issues a regulation which would have a significant impact on a substantial number of small entities. This interim rule does not have a significant impact on a substantial number of small entities.

Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

This interim rule contains no new information collection requirements subject to the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3511).

Executive Order 13132, “Federalism”

This interim rule does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on the States; the relationship between the National Government and the States; or the distribution of power and responsibilities among the various levels of Government.

Public Comments Invited

This rule is being issued as an interim final rule based on the statutory requirement of an October 1, 2015 start date. DoD invites public comments on all provisions of the rule. They will be considered for possible revisions to the program for the second and subsequent years of operation.

List of Subjects in 32 CFR Part 199

Administrative practice and procedure, Claims, Dental health, Fraud, Health care, Health insurance, Individuals with disabilities, Military personnel.

Accordingly, 32 CFR part 199 will be amended as follows:

PART 199—[AMENDED] 1. The authority citation for part 199 continues to read as follows: Authority:

5 U.S.C. 301; 10 U.S.C. chapter 55.

2. Section 199.21 is amended by revising paragraph (r), to read as follows:
§ 199.21 TRICARE Pharmacy Benefits Program.

(r) Refills of maintenance medications for eligible covered beneficiaries through the mail order pharmacy program—(1) In general. Consistent with section 702 of the National Defense Authorization Act for Fiscal Year 2015, this paragraph requires that for covered maintenance medications, beneficiaries are generally required to obtain their prescription through the national mail-order pharmacy program or through military treatment facility pharmacies. For purposes of this paragraph, eligible covered beneficiaries are those defined under sections 1072 and 1086 of title 10, United States Code.

(2) Medications covered. The Director, DHA, will establish, maintain, and periodically revise and update a list of covered maintenance medications subject to the requirement of paragraph (r)(1) of this section. The current list will be accessible through the TRICARE Pharmacy Program Internet Web site and by telephone through the TRICARE Pharmacy Program Service Center. Each medication included on the list will meet the following requirements:

(i) It will be a medication prescribed for a chronic, long-term condition that is taken on a regular, recurring basis.

(ii) It will be clinically appropriate to dispense the medication from the mail order pharmacy.

(iii) It will be cost effective to dispense the medication from the mail order pharmacy.

(iv) It will be available for an initial filling of a 30-day or less supply through retail pharmacies.

(v) It will be generally available at military treatment facility pharmacies for initial fill and refills.

(vi) It will be available for refill through the national mail-order pharmacy program.

(3) Refills covered. For purposes of the program under paragraph (r)(1) of this section, a refill is:

(i) A subsequent filling of an original prescription under the same prescription number or other authorization as the original prescription; or

(ii) A new original prescription issued at or near the end date of an earlier prescription for the same medication for the same patient.

(4) Waiver of requirement. A waiver of the general requirement to obtain maintenance medication prescription refills from the mail order pharmacy or military treatment facility pharmacy will be granted in the following circumstances:

(i) There is a blanket waiver for prescription medications that are for acute care needs.

(ii) There is a blanket waiver for prescriptions covered by other health insurance.

(iii) There is a case-by-case waiver to permit prescription maintenance medication refills at a retail pharmacy when necessary due to personal need or hardship, emergency, or other special circumstance. This waiver is obtained through an administrative override request to the TRICARE pharmacy benefits manager under procedures established by the Director, DHA.

(5) Procedures. Under the program established by paragraph (r)(1) of this section, the Director, DHA will establish procedures for the effective operation of the program. Among these procedures are the following:

(i) The Department will implement the program by utilizing best commercial practices to the extent practicable.

(ii) An effective communication plan that includes efforts to educate beneficiaries in order to optimize participation and satisfaction will be implemented.

(iii) Beneficiaries with active retail prescriptions for a medication on the maintenance medication list will be notified that their medication is included under the program. Beneficiaries will be advised that they may receive two 30 day fill at retail while they transition their prescription to the mail order program.

(iv) Requests for a third fill at retail will be blocked and the beneficiary advised to call the pharmacy benefits manager (PBM) for assistance.

(v) The PBM will provide a toll free number to assist beneficiaries in transferring their prescriptions from retail to the mail order program. With the beneficiary's permission, the PBM will contact the physician or other health care provider who prescribed the medication to assist in transferring the prescription to the mail order program.

(vi) In any case in which a beneficiary required under this paragraph (r) to obtain a maintenance medication prescription refill from national mail order pharmacy program and attempts instead to refill such medications at a retail pharmacy, the PBM will also maintain the toll free number to assist the beneficiary. This assistance may include information on how to request a waiver, consistent with paragraph (r)(4)(iii) of this section, or in taking any other appropriate action to meet the beneficiary's needs and to implement the program.

(vii) The PBM will ensure that a pharmacist is available at all times through the toll-free telephone number to answer beneficiary questions or provide other appropriate assistance.

(6) This program will remain in effect indefinitely with any adjustments or modifications required by law.

Dated: July 31, 2015. Patricia L. Toppings, OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2015-19196 Filed 8-5-15; 8:45 am] BILLING CODE 5001-06-P
DEPARTMENT OF EDUCATION 34 CFR Chapter III [Docket ID ED-2015-OSERS-0061] Final Priority and Definitions; Demonstration and Training Program: Career Pathways for Individuals With Disabilities AGENCY:

Office of Special Education and Rehabilitative Services, Department of Education.

ACTION:

Final priority and definitions.

[CFDA Number: 84.235N.] SUMMARY:

The Assistant Secretary for Special Education and Rehabilitative Services announces a priority designed to demonstrate promising practices in the use of career pathways to improve employment outcomes for individuals with disabilities. Specifically, this priority will establish model demonstration projects that engage State vocational rehabilitation (VR) agencies in partnerships with other entities to develop and use career pathways to help individuals with disabilities eligible for VR services, including youth with disabilities, acquire necessary marketable skills and recognized postsecondary credentials. The Assistant Secretary may use this priority for competitions in fiscal year (FY) 2015 and later years.

DATES:

This priority and these definitions are effective September 8, 2015.

FOR FURTHER INFORMATION CONTACT:

Felipe Lulli, U.S. Department of Education, 400 Maryland Avenue SW., Room 5042, Potomac Center Plaza (PCP), Washington, DC 20202-2800. Telephone: (202) 245-7425 or by email: [email protected]

If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

Purpose of Program: The purpose of the Demonstration and Training Program is to provide competitive grants to, or enter into contracts with, eligible entities to expand and improve rehabilitation and other services authorized under the Rehabilitation Act of 1973, as amended (Rehabilitation Act), or to further the purposes and policies in sections 2(b) and 2(c) of the Rehabilitation Act by supporting activities that increase the provision, extent, availability, and scope, as well as improve the quality of rehabilitation services under the Rehabilitation Act.

Program Authority:

29 U.S.C. 773(b).

Applicable Program Regulations: 34 CFR part 373.

We published a notice of proposed priority and definitions for this competition in the Federal Register on May 15, 2015 (80 FR 27874). That notice contained background information and our reasons for proposing the particular priority and definitions. There are differences between the proposed priority and the final priority which are explained in the Analysis of Comments and Changes section of this notice.

Public Comment: In response to our invitation in the notice of proposed priority and definitions, two parties submitted comments relevant to this priority.

Generally, we do not address technical and other minor changes.

Analysis of the Comments and Changes: An analysis of the comments and of any changes in the priority and definitions since publication of the notice of proposed priority follows.

Comment: One commenter inquired whether there were any Federal requirements for the legal or programmatic structure of an eligible consortium. We also identified a second issue implicit in the commenter's question, namely, when it is appropriate for VR agencies to apply as a group.

Discussion: We agree that the reference to “a consortium of State VR agencies” in the Eligible Applicants section of the proposed priority requires further definition. The Education Department General Administrative Regulations (EDGAR) at 34 CFR 75.127-129 authorize eligible entities to apply as a group. According to EDGAR, groups may take various forms, including consortia, provided that the constituent members are eligible entities and that the eligible applicants formally bind themselves to all the application statements and assurances, describe the activities they plan to conduct, and assume responsibility for compliance with all relevant Federal requirements. Accordingly, the final priority incorporates references to these requirements in the Eligibility and Application Requirements sections.

We also agree that further clarification is needed regarding the circumstances in which application by a group would be appropriate. Thus, we have added a requirement that groups must serve a defined metropolitan area or distinct population that exists across State lines.

Changes: In the Eligible Applicants section, we updated the final priority to use the broader term “group” instead of “consortium.” With regard to the circumstances for group applications, we have updated the Eligible Applicants section of the final priority to specify that State VR agencies may apply as a group if they serve individuals in a distinct geographic area shared by two or more adjacent States (e.g., metropolitan areas, targeted occupational clusters or related industries whose employment base extends beyond a single adjacent State).

Also, in the Application Requirements paragraph (c)(3), we added a new requirement that State VR agencies applying as a group identify their shared geographic area and describe how they will coordinate their project activities within that area. In paragraph (e) of the Application Requirements section, we stipulate that applications by groups must include a copy of the members' signed agreement designating the agency authorized to sign the application on behalf of the group; binding each agency to every statement, assurance and obligation in the application; and detailing the agencies' assigned project roles and responsibilities.

Comment: One commenter stated that the project requirements in the proposed priority would not ensure that grantees provide individuals with the kind of career development support they need for success in a career pathway. The commenter described the comprehensive career development process in terms of three distinct elements: the individual's self-exploration of career-related skills, interests, and values; exploration of potential occupations and career goals aligned with the individual's skills, interests, and values; and career planning and management to achieve the individual's chosen employment and personal goals. The commenter stated that career planning and management may involve career-specific skills, job search skills, and soft skills involving communication, teamwork, networking, problem solving, critical thinking, and professionalism.

In the commenter's view, the Project Requirements section of the proposed priority was inadequate because it did not require grantees to engage individuals in a comprehensive career development process. To correct this, the commenter recommended changes in the Project Requirements section to incorporate the three aspects of the comprehensive career development process, particularly in paragraphs (c)(6)(i) and (c)(6)(iv).

The same commenter made additional recommendations in support of job readiness. Specifically, the commenter proposed inserting additional examples of comprehensive support services, self-advocacy, and soft-skills in Project Requirements paragraphs (c)(4)(i), (c)(4)(iii), and (c)(6)(iv), respectively, as well as the addition of a new requirement regarding “supportive relationships with family members, mentors, role models, and other caring adults.”

Discussion: We agree with the commenter's three-part description of a systematic comprehensive career development process. We also agree that the phrase used in the proposed priority—“career counseling, career exploration and career readiness skills”—does not fully reflect such a process. It does not, for example, capture the self-exploration or career planning and management components of the process. Accordingly, the final priority incorporates a number of changes to improve the quality of the program's career development activities, consistent with the commenter's three-part description of a comprehensive career development process.

We also agree that the proposed priority omitted some important elements of comprehensive support services, self-advocacy, and soft-skills requirements, including fostering supportive relationships. The final priority therefore expands the comprehensive support services, self-advocacy training, and soft skills services to be provided, together with peer support and mentoring.

On the other hand, we do not believe that a new requirement regarding supportive relationships with family members is necessary, because the proposed priority's Application Requirements paragraph (c)(3)(vi) already requires “strategies for involving families.”

Changes: We have revised the final priority to include several changes to the Project Requirements section. Paragraph (c)(6)(i) has been revised to more fully reflect the nature and scope of the program's required career development services. In addition, paragraph (c)(4)(i) now incorporates benefits planning and physical and mental health services among the comprehensive support services. Further, we revised paragraph (c)(4)(iii) to incorporate mentoring and peer relationships as components of self-advocacy training. Finally, we revised paragraph (c)(6)(iv) to add communication, teamwork, networking, problem solving, critical thinking and professionalism as soft skills.

Comment: None.

Discussion: We identified several instances in which a particular requirement was cited in one part of the proposed priority but omitted in another place where it should have been cited.

The proposed priority's program description, for example, indicated that career pathway services are intended for individuals with disabilities who meet State VR eligibility requirements. However, this eligibility requirement was not reflected in the Project Requirements or Application Requirements sections of the proposed priority.

Also, certain requirements in the Project Requirements section were not addressed in the Application Requirements section. Paragraph (b) of the Project Requirements in the notice of proposed priority required the model project to be implemented at multiple sites and lead to one or more occupational clusters. However, the Application Requirements did not require applicants to identify those sites, clusters, or their criteria for selecting them. Also, while Project Requirements paragraph (c) enumerated six career pathway components, the Application Requirements section lacked any references to those components. Further, collaboration with federally funded career pathway initiatives was cited in paragraph (d) of the Project Requirements section, but the Application Requirements section did not require applicants to list or describe such collaboration(s).

With regard to employment outcomes, the proposed priority's Background section referenced competitive integrated employment for individuals with disabilities, but it did not require this employment outcome in either the Project Requirements section or the Application Requirements section's evaluation plan.

Finally, neither the Project Requirements nor the Application Requirements of the proposed priority specified whether grantees are expected to create new pathways or to access existing ones.

Changes: In the final priority, we have added references to “VR-eligible individuals” in paragraph (a) of the Project Requirements section and in paragraph (c)(4)(v) of the Application Requirements section.

In paragraph (c)(3) of the Application Requirements section, the final priority requires applicants to identify the project's proposed sites and targeted occupational clusters, and their criteria for selecting such sites and occupational clusters. We also added references to the six specified career pathway components in paragraph (c)(4)(v) of the Application Requirements section. In addition, we added the requirement that applicants describe their proposed collaboration with federally funded career pathway partners in Application Requirements paragraph (c)(4)(iii).

We have added an explicit reference to competitive integrated employment in paragraph (a) of the Project Requirements section. In Application Requirements paragraph (g), regarding evaluation plans, we added required data elements appropriate for measuring career pathways' effectiveness in creating competitive integrated employment opportunities for VR-eligible individuals.

In paragraph (a) of the Project Requirements section we added a statement clarifying that applicants may provide access to existing career pathways, create new ones, or both. Also, Application Requirements paragraph (c)(4)(iv) now requires applicants to describe how they would provide access to existing career pathways or create new pathways.

Final Priority

The Assistant Secretary for Special Education and Rehabilitative Services proposes a priority designed to demonstrate promising practices in the use of career pathways (as defined in this notice) in order to improve employment outcomes for individuals with disabilities (as defined in this notice). Specifically, the purpose of this priority is to establish model demonstration projects designed to promote State vocational rehabilitation (VR) agency partnerships in the development of and the use of career pathways to help individuals with disabilities eligible for VR services, including youth with disabilities (as defined in this notice), to acquire marketable skills and recognized postsecondary credentials (as defined in this notice).

Eligible Applicants: Under this priority, an applicant must be a State VR agency. State VR agencies may also apply as a group, consistent with 34 CFR 75.128, if they serve individuals in a distinct geographic area shared by two or more adjacent States. Applications by a group would be appropriate, for example, in cases of metropolitan areas, targeted occupational clusters or related industries whose employment base extends beyond a single State.

Project Requirements: Under this priority, the model demonstration proposed by an applicant must, at a minimum—

(a) Develop and implement a collaborative model project demonstrating promising practices and strategies in the use of career pathways to improve the skills of VR-eligible individuals with disabilities, including youth with disabilities, and help them attain credentials that lead to competitive integrated employment in high-demand occupations. The model must be implemented at multiple sites to ensure its replicability, and lead to one or more occupational clusters (as defined in this notice). The model project may involve providing access to existing career pathways, creating new pathways, or both;

(b) Establish partnerships between the VR agencies, employers, agencies, and entities that are critical to the development of career pathways and the alignment of education, training, employment, and human and social services. At minimum, the partnership should include representatives from local or State educational agencies responsible for providing transition services to students with disabilities under the Individuals with Disabilities Education Act and representatives from two-year and four-year institutions of higher education, American Job Centers, other workforce training providers (including apprenticeship, on-the-job and customized training providers), and employers who will work in collaboration to develop and provide postsecondary education and training for individuals with disabilities served under this project;

(c) Include the following career pathway components:

(1) Alignment of secondary and postsecondary education, training, employment, and human services with the skill needs of targeted industry sectors important to local, regional, or State economies;

(2) Rigorous, sequential, connected, and efficient curricula that connect basic education and skills training courses and that integrate education with training;

(3) Multiple entry and exit points for individuals with disabilities entering and exiting training;

(4) Comprehensive support services that are designed to ensure the individual's success in completing education and training programs:

(i) Financial supports, benefits planning, child care, physical and mental health services and transportation;

(ii) Educational supports (e.g., tutors, on-campus supports such as writing labs, math labs, and disability services);

(iii) Self-advocacy training (e.g., mentoring, peer relationships, understanding how to request services and supports needed in the transition from secondary to post-secondary education and employment, and increasing knowledge of rights under disability laws); and

(iv) Appropriate assistive technology services and devices;

(5) Flexible design of education and training programs and services to meet the particular needs of individuals with disabilities, including flexible work schedules, alternative class times and locations, and the innovative use of technology; and

(6) Education and training programs that focus on the attainment of secondary education and recognized postsecondary credentials, sector-specific employment, educational advancement over time and employment within a sector, including curriculum and instructional strategies designed to develop the following knowledge and skills:

(i) Comprehensive career development counseling and guidance, including self-exploration, career exploration and career planning and management;

(ii) Basic academic skills needed to demonstrate knowledge competencies in an occupation or occupational cluster, including remedial skills to address gaps in basic reading, writing, and math skills;

(iii) Career and technical skills leading to employment in technical careers, including employment in the skilled trades; and

(iv) Soft skills (e.g., understanding, communication, teamwork, networking, problem solving, critical thinking and professionalism, learning styles, identifying strengths and weaknesses);

(d) Collaborate with other federally-funded career pathway initiatives conducting activities relevant to the work of its proposed project; and

(e) Develop and conduct an evaluation of the project's performance in achieving project goals and objectives, including an evaluation on the effectiveness of the practices and strategies implemented by the project.

Application Requirements: To be considered for funding under this program, an application must include the following:

(a) A detailed review of the literature that supports the potential effectiveness of the proposed model, its components, and processes to improve outcomes for individuals with disabilities;

(b) A logic model that communicates how the demonstration project will achieve its outcomes and provides a framework for project evaluation. The logic model must depict, at a minimum, the goals, activities, outputs, and outcomes of the proposed model demonstration project;

(c) A description of the applicant's plan for implementing the project, including a description of—

(1) A cohesive, articulated model of partnership and coordination among the participating agencies and organizations;

(2) The coordinated set of promising practices and strategies in the use and development of career pathways that are aligned with employment, training, and education programs and reflect the needs of employers and individuals with disabilities;

(3) The model demonstration project's proposed sites and targeted occupational clusters, and the proposed criteria for selecting such sites and occupational clusters. State VR agencies applying as a group must also identify the shared geographic area and describe how they will coordinate their project activities within the shared area.

(4) How the proposed project will—

(i) Identify local workforce needs, aligned with the skill needs of targeted industry sectors important to local, regional, or State economies;

(ii) Involve employers in the project design and in partnering with project staff to develop integrated community settings for assessments, job shadowing, internships, apprenticeships, and other paid and unpaid work experiences that are designed to lead to competitive integrated employment for individuals with disabilities, including youth with disabilities;

(iii) Collaborate with participating agencies and organizations, including career pathway partners;

(iv) Provide access to existing career pathways, create new pathways, or both, incorporating the six required career pathway components: secondary and postsecondary education and training aligned with targeted industry sector needs; rigorous, sequential, connected and efficient curricula; multiple entry and exit points; comprehensive support services; flexible design of education, training, work settings and assistive technology; and focus on the attainment of secondary education, recognized postsecondary credentials, sector-specific employment, and related knowledge and skills.

(v) Conduct outreach activities to identify VR-eligible individuals with disabilities whom the career pathways approach could assist in achieving competitive integrated employment in the career clusters identified in their application; and

(vi) Develop strategies for involving families that will increase the likelihood for successful educational and employment outcomes for individuals with disabilities.

(d) The methods and criteria that will be used to select the sites at which the project activities will be implemented;

(e) Evidence (e.g., letter of support or draft agreement) that the State VR agency has specific agreements with its partners in the development and implementation of the project. In the case of a group, the application must also include a signed agreement among the constituent State VR agencies that designates the agency legally authorized to submit the application on behalf of the group; binds each agency to every statement, assurance and obligation in the application; and details the agencies' assigned roles and responsibilities, in accordance with 34 CFR 75.128 and 75.129;

(f) A plan for evaluating the project's performance, including an evaluation on the effectiveness of the practices and strategies implemented by the project, in achieving project goals and objectives. Specifically, the evaluation plan must include a description of:

(1) Project goals, measurable objectives, and operational definitions;

(2) The data to be collected;

(3) How the data will be analyzed; and

(4) How the outcomes for individuals with disabilities served by the project compared with the outcomes of individuals with disabilities not receiving project services.

(g) For each career pathway accessed or created through the project, the evaluation plan must provide the following information:

(1) Description of the career pathway—including the respective occupational cluster(s) or career field(s), stackable credentials, and multiple entry/exit points; and

(2) Collection of the following data, at minimum:

(i) The relevant RSA-911 Case Service Report data for each project participant;

(ii) The number of participants who entered the career pathway;

(iii) The number of participants who completed training in the career pathway;

(iv) The number of participants who attained one or more recognized postsecondary credential and the types of credentials attained;

(v) The number of participants who achieved competitive integrated employment through the project; and

(vi) The corresponding weekly wage and employer benefits received by these participants.

(h) A plan for systematic dissemination of project findings and knowledge gained that will assist State and local agencies in adapting or replicating the model career pathways developed and implemented by the project. This plan could include elements such as development of a Web site, community of practice, and participation in national and State conferences;

(i) An assurance that the employment goal for all individuals served under this priority will be competitive integrated employment, including customized or supported employment; and

(j) An assurance that the project will collaborate with other federally-funded career pathway initiatives conducting activities relevant to its work.

Types of Priorities

When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register. The effect of each type of priority follows:

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

Invitational priority: Under an invitational priority, we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

Definitions

The following definitions are provided to ensure that applicants have a clear understanding of how we are using these terms in the priority. There are no differences between the proposed definitions and these final definitions.

Career Pathway means a combination of rigorous and high-quality education, training, and other services that—

(a) Aligns with the skill needs of industries in the economy of the State or regional economy involved;

(b) Prepares an individual to be successful in any of a full range of secondary or postsecondary education options, including apprenticeships registered under the Act of August 16, 1937 (commonly known as the “National Apprenticeship Act”; 50 Stat. 664, chapter 663; 29 U.S.C. 50 et seq.);

(c) Includes counseling to support an individual in achieving the individual's education and career goals;

(d) Includes, as appropriate, education offered concurrently with and in the same context as workforce preparation activities and training for a specific occupation or occupational cluster;

(e) Organizes education, training, and other services to meet the particular needs of an individual in a manner that accelerates the educational and career advancement of the individual to the extent practicable;

(f) Enables an individual to attain a secondary school diploma or its recognized equivalent, and at least one recognized postsecondary credential; and

(g) Helps an individual enter or advance within a specific occupation or occupational cluster. Source: Section 3(7) of WIOA.

Competitive integrated employment means work that is performed on a full-time or part-time basis (including self-employment)—

(a) For which an individual—

(1) Is compensated at a rate that—

(i)(A) Shall be not less than the higher of the rate specified in section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) or the rate specified in the applicable State or local minimum wage law; and

(B) Is not less than the customary rate paid by the employer for the same or similar work performed by other employees who are not individuals with disabilities, and who are similarly situated in similar occupations by the same employer and who have similar training, experience, and skills; or

(ii) In the case of an individual who is self-employed, yields an income that is comparable to the income received by other individuals who are not individuals with disabilities, and who are self-employed in similar occupations or on similar tasks and who have similar training, experience, and skills; and

(2) Is eligible for the level of benefits provided to other employees;

(b) That is at a location where the employee interacts with other persons who are not individuals with disabilities (not including supervisory personnel or individuals who are providing services to such employee) to the same extent that individuals who are not individuals with disabilities and who are in comparable positions interact with other persons; and

(c) That, as appropriate, presents opportunities for advancement that are similar to those for other employees who are not individuals with disabilities and who have similar positions. Source: Section 7(5) of the Rehabilitation Act.

Individual with a disability means any individual who—

(a) Has a physical or mental impairment which for such individual constitutes or results in a substantial impediment to employment; and

(b) Can benefit in terms of an employment outcome from vocational rehabilitation services provided pursuant to Title I, III, or VI of the Rehabilitation Act. Source: Section 7(20) of the Rehabilitation Act.

Occupational cluster means a group of occupations and broad industries based on common knowledge and skills, job requirements or worker characteristics. Source: Adopted from Career Pathways Toolkit, DOL.

Recognized postsecondary credential means a credential consisting of an industry-recognized certificate or certification, a certificate of completion of an apprenticeship, a license recognized by the State involved or Federal Government, or an associate or baccalaureate degree. Source: Section 3(52) of WIOA.

Youth with a disability means an individual with a disability who—

(a) Is not younger than 14 years of age; and

(b) Is not older than 24 years of age. Source: Section 7(42) of the Rehabilitation Act.

This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

Note:

This notice does not solicit applications. In any year in which we choose to use this priority, we invite applications through a notice in the Federal Register.

Executive Orders 12866 and 13563 Regulatory Impact Analysis

Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing this final priority only on a reasoned determination that its benefits justify its costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities. The benefits of the Demonstration and Training program have been well established over the years through the successful completion of similar projects, particularly those grants that demonstrated innovative service delivery practices. Specifically, this priority would establish model demonstrations showing that career pathways can be used to assist individuals with disabilities to achieve competitive integrated employment by obtaining recognized postsecondary credentials and thereby by meeting the needs of employers in high-demand career clusters. This priority is also directly responsive to the Presidential Memorandum to Federal agencies directing them to take action to address job-driven training for the Nation's workers.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) by request to the program contact person listed under FOR FURTHER INFORMATION CONTACT.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

Dated: July 31, 2015. Michael K. Yudin, Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 2015-19293 Filed 8-5-15; 8:45 am] BILLING CODE 4000-01-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2015-0105 FRL-9927-41-Region 7] Approval and Promulgation of Air Quality Implementation Plans; Missouri; Update to Materials Incorporated by Reference AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule; notice of administrative change.

SUMMARY:

The Environmental Protection Agency (EPA) is updating the materials submitted by Missouri that are incorporated by reference (IBR) into the state implementation plan (SIP). EPA is also notifying the public of the correction of certain typographical errors within the IBR table. The regulations affected by this update have been previously submitted by the state agency and approved by EPA. This update affects the SIP materials that are available for public inspection at the National Archives and Records Administration (NARA), and the Regional Office.

DATES:

This rule is effective on August 6, 2015.

ADDRESSES:

SIP materials which are incorporated by reference into 40 CFR part 52 are available for inspection at the following locations: Environmental Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, Kansas 66219; or at http://www.epa.gov/region07/air/rules/fedapprv.htm; and the National Archives and Records Administration. For information on the availability of this material at NARA, call (202) 741-6030, or go to: www.archives.gov/federal-register/cfr/ibr-locations.html.

FOR FURTHER INFORMATION CONTACT:

Jan Simpson at (913) 551-7089, or by email at [email protected]

SUPPLEMENTARY INFORMATION:

I. Background

The SIP is a living document which the state revises as necessary to address its unique air pollution problems. Therefore, EPA from time to time must take action on SIP revisions containing new and/or revised regulations to make them part of the SIP. On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference Federally-approved SIPs, as a result of consultations between EPA and the Office of Federal Register. The description of the revised SIP document, IBR procedures and “Identification of plan” format are discussed in further detail in the May 22, 1997, Federal Register document.

On June 29, 1999, EPA published a document in the Federal Register (64 FR 34717) beginning the new IBR procedure for Missouri. On May 24, 2004 (69 FR 29435), and on October 8, 2009 (74 FR 51783), EPA published updates to the IBR material for Missouri.

In this document, EPA is publishing an updated set of tables listing the regulatory (i.e., IBR) materials in the Missouri SIP taking into account the additions, deletions, and revisions to those materials previously submitted by the state agency and approved by EPA. We are removing the EPA Headquarters Library from paragraph (b)(3), as IBR materials are no longer available at this location. In addition, EPA has found errors in certain entries listed in 40 CFR 52.1320(c) and (e), as amended in the published IBR update actions listed above, and is correcting them in this document. Table (c) revisions include:

• Adding the inadvertent omission of the following explanation to the explanation column for 10-1.020(1) and (2): Only sections (1) and (2) are Federally approved.

• removing rescinded rule 10-2.040

• removing rescinded rule 10-2.150

• moving text from the explanation column to the EPA approval date column for 10-2.230, 10-2.290, 10-2.310, and 10-2.320

• removing outdated text in the explanation column for 10-2.300

• removing rescinded rule 10-3.060

• removing rescinded rule 10-4.040

• removing rescinded rule 10-4.140

• removing rescinded rule 10-5.030

• removing rescinded rule 10-5.250

• correcting the Federal Register citation in the EPA approval date column for 10-5.330

• correcting the Federal Register citation in the EPA approval date column and adding text in the explanation column for 10-5.340

• moving text from the explanation column to the EPA approval date column for 10-5.350, 10-5.360, 10-5.370, and 10-5.410

• correcting the Federal Register citation in the EPA approval date column for 10-5.442

• correcting the Federal Register citation in the EPA approval date column for 10-6.061

• correcting the state effective date and removing outdated text in the explanation column for 10-6.300

• removing outdated text in the explanation column for 10-6.405

• correcting the chapter title for Springfield to “Springfield-Chapter 6-Air Pollution Control Standards”

• removing rescinded articles VII, IX and XX under Springfield

Table (d) is being revised by:

• removing text in the explanation column for (8)

• removing text in the explanation column for (21)

Table (e) is being revised by:

• removing text in the explanation column for (16)

• adding text in the explanation column for (11)-(62)

• removing outdated/confusing text in the explanation column for (43), (44), (48) and (53).

II. EPA Action

In this action, EPA is doing the following:

A. Announcing the update to the IBR material as of December 31, 2014;

B. Revising the entry in § 52.1320(b) to reflect the update and corrections;

C. Revising certain entries in § 52.1320(c), (d), and (e) as described above;

D. Correcting the date format in the “State effective date” or “State submittal date” and “EPA approval date” columns in § 52.1320(c), (d), and (e). Dates are numerical month/day/year without additional zeros;

E. Modifying the Federal Register citations in § 52.1320(c), (d), and (e) to reflect the beginning page of the preamble as opposed to the page number of the regulatory text.

EPA has determined that this rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3), which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). This rule simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice in the CFR benefits the public by providing notice of the updated Missouri SIP compilation.

Statutory and Executive Order Reviews

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Missouri regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

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” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 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 CAA; 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 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 action is not a “major rule” as defined by 5 U.S.C. 804(2).

EPA has also determined that the provisions of section 307(b)(1) of the CAA pertaining to petitions for judicial review are not applicable to this action. Prior EPA rulemaking actions for each individual component of the Missouri SIP compilations previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, EPA sees no need in this action to reopen the 60-day period for filing such petitions for judicial review for this “Identification of plan” reorganization update action for the State of Missouri.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

Dated: April 7, 2015. Mark Hague, Acting Regional Administrator, Region 7.

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

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

42 U.S.C. 7401 et seq.

Subpart AA—Missouri 2. In § 52.1320, paragraphs (b), (c), (d), and (e) are revised to read as follows:
§ 52.1320 Identification of Plan.

(b) Incorporation by reference. (1) Material listed in paragraphs (c) and (d) of this section with an EPA approval date prior to December 31, 2014, was approved for incorporation by reference by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Material is incorporated as it exists on the date of the approval, and notice of any change in the material will be published in the Federal Register. Entries in paragraphs (c) and (d) of this section with EPA approval dates after December 31, 2014, will be incorporated by reference in the next update to the SIP compilation.

(2) EPA Region 7 certifies that the rules/regulations provided by EPA in the SIP compilation at the addresses in paragraph (b)(3) of this section are an exact duplicate of the officially promulgated state rules/regulations which have been approved as part of the SIP as of December 31, 2014.

(3) Copies of the materials incorporated by reference may be inspected at the Environmental Protection Agency, Region 7, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219; and the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to: www.archives.gov/federal-register/cfr/ibr-locations.html.

(c) EPA-approved regulations.

EPA-Approved Missouri Regulations Missouri citation Title State effective date EPA approval date Explanation Missouri Department of Natural Resources Chapter 1—Organization 10-1.020(1) and (2) Commission Voting and Meeting Procedures 7/30/98 6/21/13, 78 FR 37457 Only sections (1) and (2) are Federally approved. Chapter 2—Air Quality Standards and Air Pollution Control Regulations for the Kansas City Metropolitan Area 10-2.090 Incinerators 2/25/70 3/18/80, 45 FR 17145 The state has rescinded this rule. 10-2.100 Open Burning Restrictions 4/2/84 8/31/84, 49 FR 34484 10-2.205 Control of Emissions from Aerospace Manufacture and Rework Facilities 3/30/01 4/24/02, 67 FR 20036 10-2.210 Control of Emissions From Solvent Metal Cleaning 2/29/08 6/20/08, 73 FR 35074 10-2.215 Control of Emissions from Solvent Cleanup Operations 5/30/01 4/24/02, 67 FR 20036 10-2.220 Liquefied Cutback Asphalt Paving Restricted 6/3/91 6/23/92, 57 FR 27939 10-2.230 Control of Emissions from Industrial Surface Coating Operations 11/20/91 4/3/95, 60 FR 16806 (correction). 8/24/94, 59 FR 43480 10-2.260 Control of Petroleum Liquid Storage, Loading, and Transfer 4/30/04 2/2/05, 70 FR 5379 10-2.290 Control of Emissions From Rotogravure and Flexographic Printing Facilities 3/30/92 9/6/94, 59 FR 43376 (correction). 8/30/93, 58 FR 45451 The state rule has Sections (6)(A) and (6)(B), which EPA has not approved. 10-2.300 Control of Emissions from the Manufacturing of Paints, Varnishes, Lacquers, Enamels and Other Allied Surface Coating Products 11/20/91 3/26/03, 68 FR 14539 10-2.310 Control of Emissions from the Application of Automotive Underbody Deadeners 11/20/91 4/3/95, 60 FR 16806 (correction). 8/24/94, 59 FR 43480 10-2.320 Control of Emissions from Production of Pesticides and Herbicides 11/20/91 4/3/95, 60 FR 16806 (correction). 8/24/94, 59 FR 43480 10-2.330 Control of Gasoline Reid Vapor Pressure 7/30/13 9/4/14, 79 FR 52564 10-2.340 Control of Emissions from Lithographic Printing Facilities 9/30/03 10/30/03, 68 FR 61758 10-2.360 Control of Emissions from Bakery Ovens 11/30/95 7/20/98, 63 FR 38755 10-2.385 Control of Heavy Duty Diesel Vehicle Idling Emissions 7/30/12 3/18/14, 79 FR 15017 10-2.390 Kansas City Area Transportation Conformity Requirements 7/27/07 10/18/07, 72 FR 59014 Chapter 3—Air Pollution Control Regulations for the Outstate Missouri Area 10-3.030 Open Burning Restrictions 7/31/98 4/1/99, 64 FR 15688 The state has rescinded this rule. 10-3.040 Incinerators 2/1/78 3/18/80, 45 FR 17145 Chapter 4—Air Quality Standards and Air Pollution Control Regulations for Springfield-Greene County Area 10-4.080 Incinerators 12/16/69 3/18/80, 45 FR 17145 The state has rescinded this rule. 10-4.090 Open Burning Restrictions 4/2/84 8/31/84, 49 FR 34484 Chapter 5—Air Quality Standards and Air Pollution Control Regulations for the St. Louis Metropolitan Area 10-5.040 Use of Fuel in Hand-Fired Equipment Prohibited 9/18/70 3/18/80, 45 FR 17145 10-5.060 Refuse Not To Be Burned in Fuel Burning Installations 9/18/70 3/18/80, 45 FR 17145 The state has rescinded this rule. 10-5.070 Open Burning Restrictions 1/29/95 2/17/00, 65 FR 8060 10-5.080 Incinerators 9/18/70 3/18/80, 45 FR 17145 The state has rescinded this rule. 10-5.120 Information on Sales of Fuels to be Provided and Maintained 9/18/70 3/18/80, 45 FR 17145 10-5.130 Certain Coals to be Washed 5/30/12 8/19/14, 79 FR 48998 10-5.220 Control of Petroleum Liquid Storage, Loading and Transfer 9/30/07 4/2/08, 73 FR 17893 10-5.240 Additional Air Quality Control Measures May Be Required When Sources Are Clustered in a Small Land Area 9/18/70 3/18/80, 45 FR 17145 10-5.295 Control of Emissions From Aerospace Manufacturing and Rework Facilities 2/29/00 5/18/00, 65 FR 31489 10-5.300 Control of Emissions from Solvent Metal Cleaning 11/30/06 3/9/07, 72 FR 10610 10-5.310 Liquefied Cutback Asphalt Restricted 3/1/89 3/5/90, 55 FR 7712 10-5.330 Control of Emissions from Industrial Surface Coating Operations 8/30/11 1/23/12, 77 FR 3144 10-5.340 Control of Emissions From Rotogravure and Flexographic Printing Facilities 8/30/11 1/23/12, 77 FR 3144 The state rule has Section (6)(A)(B), which the EPA has not approved. 10-5.350 Control of Emissions From Manufacture of Synthesized Pharmaceutical Products 11/20/91 4/3/95, 60 FR 16806 (correction). 8/24/94, 59 FR 43480 10-5.360 Control of Emissions from Polyethylene Bag Sealing Operations 11/20/91 4/3/95, 60 FR 16806 (correction). 8/24/94, 59 FR 43480 10-5.370 Control of Emissions from the Application of Deadeners and Adhesives 11/20/91 4/3/95, 60 FR 16806 (correction). 8/24/94, 59 FR 43480 10-5.385 Control of Heavy Duty Diesel Vehicle Idling Emissions 7/30/2012 3/18/14, 79 FR 15017 10-5.390 Control of Emissions from Manufacture of Paints, Varnishes, Lacquers, Enamels and Other Allied Surface Coating Products 8/30/00 8/14/01, 66 FR 42605 10-5.410 Control of Emissions From Manufacture of Polystyrene Resin 11/20/91 4/3/95, 60 FR 16806 (correction). 8/24/94, 59 FR 43480 10-5.420 Control of Equipment Leaks from Synthetic Organic Chemical and Polymer Manufacturing Plants 3/11/89 3/5/90, 55 FR 7712 10-5.440 Control of Emissions from Bakery Ovens 12/30/96 2/17/00, 65 FR 8060 10-5.442 Control of Emissions from Offset Lithographic Printing Operations 8/30/11 1/23/12, 77 FR 3144 10-5.450 Control of VOC Emissions from Traffic Coatings 5/28/95 2/17/00, 65 FR 8060 10-5.451 Control of Emissions from Aluminum Foil Rolling 9/30/00 7/20/01, 66 FR 37906 10-5.455 Control of Emissions from Solvent Cleaning Operations 8/30/11 1/6/14, 79 FR 580 10-5.480 St. Louis Area Transportation Conformity Requirements 2/28/11 8/29/13, 78 FR 53247 10-5.490 Municipal Solid Waste Landfills 5/30/12 4/15/14, 79 FR 21137 10-5.500 Control of Emissions From Volatile Organic Liquid Storage 2/29/00 5/18/00, 65 FR 31489 10-5.510 Control of Emissions of Nitrogen Oxides 5/30/06 11/6/06, 71 FR 64888 10-5.520 Control of Volatile Organic Compound Emissions From Existing Major Sources 2/29/00 5/18/00, 65 FR 31489 10-5.530 Control of Volatile Organic Compound Emissions From Wood Furniture Manufacturing Operations 2/29/00 5/18/00, 65 FR 31489 10-5.540 Control of Emissions From Batch Process Operations 2/29/00 5/18/00, 65 FR 31489 10-5.550 Control of Volatile Organic Compound Emissions From Reactor Processes and Distillation Operations Processes in the Synthetic Organic Chemical Manufacturing Industry 2/29/00 5/18/00, 65 FR 31489 10-5.570 Control of Sulfur Emissions From Stationary Boilers 9/30/09 1/25/13, 78 FR 5303 Chapter 6—Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of Missouri 10-6.010 Ambient Air Quality Standards 5/30/10 9/20/12, 77 FR 58309 10-6.020 Definitions and Common Reference Tables 2/28/13 4/2/13, 79 FR 14613 10-6.030 Sampling Methods for Air Pollution Sources 2/28/06 12/5/06, 71 FR 70468 10-6.040 Reference Methods 5/30/10 9/20/12, 77 FR 58309 10-6.050 Start-up, Shutdown, and Malfunction Conditions 7/30/10 3/5/14, 79 FR 12394 —Provisions of the 2010 PM2.5 PSD—Increments, SILs and SMCs rule (75 FR 64865, October 20, 2010) relating to SILs and SMCs that were affected by the January 22, 2013 U.S. Court of Appeals decision are not SIP approved. —Provisions of the 2002 NSR reform rule relating to the Clean Unit Exemption, Pollution Control Projects, and exemption from recordkeeping provisions for certain sources using the actual-to-projected-actual emissions projections test are not SIP approved. —In addition, we have not approved Missouri's rule incorporating EPA's 2007 revision of the definition of “chemical processing plants” (the “Ethanol Rule,” 72 FR 24060 (May 1, 2007) or EPA's 2008 “fugitive emissions rule,” 73 FR 77882 (December 19, 2008). —Although exemptions previously listed in 10 CSR 10-6.060 have been transferred to 10 CSR 10-6.061, the Federally-approved SIP continues to include the following exemption, “Livestock and livestock handling systems from which the only potential contaminant is odorous gas.” 10-6.060 Construction Permits Required 9/30/12 6/21/13, 78 FR 37451 —Section 9, pertaining to hazardous air pollutants, is not SIP approved. 10-6.061 Construction Permits Exemptions 7/30/06 12/4/06, 71 FR 70315 Section (3)(A)2.D. is not included in the SIP. 10-6.062 Construction Permits By Rule 5/30/07 9/26/07, 72 FR 54562 Section (3)(B)4. is not included in the SIP. 10-6.065 Operating Permits 9/30/05 2/21/07, 72 FR 7829 Section (4) Basic State Operating Permits, has not been approved as part of the SIP. 10-6.110 Submission of Emission Data, Emission Fees, and Process Information 9/30/10 12/14/11, 76 FR 77701 Section (3)(A), Emissions Fees, has not been approved as part of the SIP. 10-6.120 Restriction of Emissions of Lead from Specific Lead Smelter-Refinery Installations 3/30/05 6/12/06, 71 FR 33622 10-6.130 Controlling Emissions During Episodes of High Air Pollution Potential 5/30/10 9/20/12, 77 FR 58309 10-6.140 Restriction of Emissions Credit for Reduced Pollutant Concentrations from the Use of Dispersion Techniques 5/1/86 3/31/89, 54 FR 13184 10-6.150 Circumvention 8/15/90 4/17/91, 56 FR 15500 10-6.170 Restriction of Particulate Matter to the Ambient Air Beyond the Premises of Origin 8/30/98 3/31/00, 65 FR 17164 10-6.180 Measurement of Emissions of Air Contaminants 11/19/90 7/23/91, 56 FR 33714 10-6.210 Confidential Information 1/27/95 2/29/96, 61 FR 7714 10-6.220 Restriction of Emission of Visible Air Contaminants 9/30/08 12/9/09, 74 FR 68689 Subsection (1)(I) referring to the open burning rule, 10 CSR 10-6.045, is not SIP approved. 10-6.260 Restriction of Emission of Sulfur Compounds 9/30/12 11/22/13, 78 FR 69995 Section (3)(A)(1-4) approved pursuant to 111d only. 10-6.280 Compliance Monitoring Usage 3/30/02 8/27/02, 67 FR 54961 10-6.300 Conformity of General Federal Actions to State Implementation Plans 8/30/11 9/18/13, 78 FR 57267 10-6.330 Restriction of Emissions from Batch-type Charcoal Kilns 6/30/98 12/8/98, 63 FR 67591 10-6.350 Emissions Limitations and Emissions Trading of Oxides of Nitrogen 5/30/07 4/2/08, 73 FR 17890 10-6.360 Control of NOX Emissions From Electric Generating Units and Non-Electric Generating Boilers 5/30/07 4/2/08, 73 FR 17890 10-6.362 Clean Air Interstate Rule Annual NOX Trading Program 5/18/07 12/14/07, 72 FR 71073 10-6.364 Clean Air Interstate Rule Seasonal NOX Trading Program 5/18/07 12/14/07, 72 FR 71073 10-6.366 Clean Air Interstate Rule SO2 Trading Program 5/18/07 12/14/07, 72 FR 71073 10-6.380 Control of NOX Emissions From Portland Cement Kilns 10/30/05 8/15/06, 71 FR 46860 10-6.390 Control of NOX Emissions From Large Stationary Internal Combustion Engines 10/30/10 7/18/14, 79 FR 41908 10-6.400 Restriction of Emission of Particulate Matter From Industrial Processes 2/28/11 2/20/13, 78 FR 11758 10-6.405 Restriction of Particulate Matter Emissions From Fuel Burning Equipment Used for Indirect Heating 10/30/11 9/13/12, 77 FR 56555 10-6.410 Emissions Banking and Trading 9/30/12 11/22/13, 78 FR 69995 Missouri Department of Public Safety Division 50—State Highway Patrol Chapter 2—Motor Vehicle Inspection 50-2.010 Definitions 4/11/82 8/12/85, 50 FR 32411 50-2.020 Minimum Inspection Station Requirements 10/11/82 8/12/85, 50 FR 32411 50-2.030 Inspection Station Classification 12/11/77 8/12/85, 50 FR 32411 50-2.040 Private Inspection Stations 5/31/74 8/12/85, 50 FR 32411 50-2.050 Inspection Station Permits 11/11/79 8/12/85, 50 FR 32411 50-2.060 Display of Permits, Signs and Poster 11/31/74 8/12/85, 50 FR 32411 50-2.070 Hours of Operation 11/11/83 8/12/85, 50 FR 32411 50-2.080 Licensing of Inspector/Mechanics 4/13/78 8/12/85, 50 FR 32411 50-2.090 Inspection Station Operational Requirements 8/11/78 8/12/85, 50 FR 32411 50-2.100 Requisition of Inspection Stickers and Decals 6/12/80 8/12/85, 50 FR 32411 50-2.110 Issuance of Inspection Stickers and Decals 12/11/77 8/12/85, 50 FR 32411 50-2.120 MVI-2 Form 11/11/83 8/12/85, 50 FR 32411 50-2.130 Violations of Laws or Rules Penalty 5/31/74 8/12/85, 50 FR 32411 50-2.260 Exhaust System 5/31/74 8/12/85, 50 FR 32411 50-2.280 Air Pollution Control Devices 12/11/80 8/12/85, 50 FR 32411 50-2.290 Fuel Tank 5/3/74 8/12/85, 50 FR 32411 50-2.350 Applicability of Motor Vehicle Emission Inspection 5/1/84 8/12/85, 50 FR 32411 50-2.360 Emission Fee 11/1/83 8/12/85, 50 FR 32411 50-2.370 Inspection Station Licensing 12/21/90 10/13/92, 57 FR 46778 50-2.380 Inspector/Mechanic Licensing 11/1/83 8/12/85, 50 FR 32411 50-2.390 Safety/Emission Stickers 11/1/83 8/12/85, 50 FR 32411 50-2.401 General Specifications 12/21/90 10/13/92, 57 FR 46778 50-2.402 MAS Software Functions 12/21/90 10/13/92, 57 FR 46778 The SIP does not include Section (6), Safety Inspection. 50-2.403 Missouri Analyzer System (MAS) Display and Program Requirements 12/21/90 10/13/92, 57 FR 46778 The SIP does not include Section (3)(B)4, Safety Inspection Sequences or (3)(M)5(II), Safety Inspection Summary. 50-2.404 Test Record Specifications 12/21/90 10/13/92, 57 FR 46778 The SIP does not include Section (5), Safety Inspection Results. 50-2.405 Vehicle Inspection Certificate, Vehicle Inspection Report, and Printer Function Specifications 12/21/90 10/13/92, 57 FR 46778 50-2.406 Technical Specifications for the MAS 12/21/90 10/13/92, 57 FR 46778 50-2.407 Documentation, Logistics and Warranty Requirements 12/21/90 10/13/92, 57 FR 46778 50-2.410 Vehicles Failing Reinspection 12/21/90 10/13/92, 57 FR 46778 50-2.420 Procedures for Conducting Only Emission Tests 12/21/90 10/13/92, 57 FR 46778 Kansas City Chapter 8—Air Quality 8-2 Definitions 12/10/98 12/22/99, 64 FR 71663 8-4 Open burning 10/31/96 4/22/98, 65 FR 19823 8-5 Emission of particulate matter 12/10/98 12/22/99, 64 FR 71663 Only subsections 8-5(c)(1)b, 8-5(c)(1)c, 8-5(c)(2)a, 8-5(c)(3)a, 8-5(c)(3)b, 8-5(c)(3)c, 8-5(c)(3)d are approved in the SIP. Springfield Chapter 6—Air Pollution Control Standards Article I Definitions 12/04/08 10/21/10, 75 FR 64953 Only Section 6-2 is approved by EPA. Article II Administrative and Enforcement 12/04/08 10/21/10, 75 FR 64953 Only Sections 6-151, 155, 156, and 171 are approved by EPA. Article V Incinerators 12/04/08 10/21/10, 75 FR 64953 Only Sections 6-311 through 314 are approved by EPA. St. Louis City Ordinance 68657 Section 6 Definitions 8/28/03 12/9/03, 68 FR 68521 The phrase other than liquids or gases in the Refuse definition has not been approved. Section 15 Open Burning Restrictions 8/28/03 12/9/03, 68 FR 68521

(d) EPA-approved state source-specific permits and orders.

EPA-Approved Missouri Source-Specific Permits and Orders Name of source Order/Permit number State effective date EPA Approval date Explanation (1) ASARCO Inc. Lead Smelter, Glover, MO Order 8/13/80 4/27/81, 46 FR 23412 (2) St. Joe Lead (Doe Run) Company Lead Smelter, Herculaneum, MO Order 3/21/84 6/11/84, 49 FR 24022 (3) AMAX Lead (Doe Run) Company Lead Smelter, Boss, MO Order 9/27/84 1/7/85, 50 FR 768 (4) Gusdorf Operating Permit 11440 Lackland Road, St. Louis County, MO Permit Nos: 04682-04693 * 4/29/80 10/15/84, 49 FR 40164 (5) Doe Run Lead Smelter, Herculaneum, MO Consent Order 3/9/90 3/6/92, 57 FR 8076 (6) Doe Run Lead Smelter, Herculaneum, MO Consent Order 8/17/90 3/6/92, 57 FR 8076 (7) Doe Run Lead Smelter, Herculaneum, MO Consent Order 7/2/93 5/5/95, 60 FR 22274 (8) Doe Run Lead Smelter, Herculaneum, MO Consent Order (Modification) 4/28/94 5/5/95, 60 FR 22274 (9) Doe Run Lead Smelter, Herculaneum, MO Consent Order (Modification) 11/23/94 5/5/95, 60 FR 22274 (10) Doe Run Buick Lead Smelter, Boss, MO Consent Order 7/2/93 8/4/95, 60 FR 39851 (11) Doe Run Buick Lead Smelter, Iron County, MO Consent Order (Modification) 9/29/94 8/4/95, 60 FR 39851 (12) ASARCO Glover Lead Smelter, Glover, MO Consent Decree CV596-98CC with exhibits A-G 7/30/96 3/5/97, 62 FR 9970 (13) Eagle-Picher Technologies, Joplin, MO Consent Agreement 08/26/99 4/24/00, 65 FR 21649 (14) Doe Run Resource Recycling Facility near Buick, MO Consent Order 5/11/00 10/18/00, 65 FR 62295 (15) St. Louis University Medical Waste Incinerator 9/22/92 4/22/98, 63 FR 19823 (16) St. Louis University Permit Matter No. 00-01-004 1/31/00 10/26/00, 65 FR 64156 (17) St. Joseph Light & Power SO2 Consent Decree 5/21/01 11/15/01, 66 FR 57389 (18) Asarco, Glover, MO Modification of Consent Decree, CV596-98CC 7/31/00 4/16/02, 67 FR 18497 (19) Doe Run, Herculaneum, MO Consent Judgment, CV301-0052C-J1, with Work Practice Manual and S.O.P. for Control of Lead Emissions (Rev 2000) 1/5/01 4/16/02, 67 FR 18497 (20) Springfield City Utilities James River Power Station SO2 Consent Agreement 12/6/01 3/25/02, 67 FR 13570 (21) St. Louis University Permit Matter No. 00-01-004 8/28/03 12/9/03, 68 FR 68521 (22) Doe Run Lead Smelter, Glover, MO Settlement Agreement 10/31/03 10/29/04, 69 FR 63072 (23) Grossman Iron and Steel Company Permit No. SR00.045A 7/19/06 12/4/06, 71 FR 70312 (24) Doe Run Herculaneum, MO Consent Judgment Modification, CV301-0052CCJ1 12/20/05 5/4/07, 72 FR 25203 (25) Doe Run Herculaneum, MO Consent Judgment Modification, 07JE-CC00552 5/21/07 7/29/09 modification 2/17/12, 77 FR 9529 This approval does not include any subsequent modifications after 2009. (26) Holcim 4/19/2009 6/26/2012 77 FR 38007 § 52.1339(c); Limited Approval. (27) Doe Run Herculaneum, MO Consent Judgment Modification 07JE-CC00552 10/19/11 10/20/14 and 79 FR 62574 Modification to section 2.B.1. of the 2007 Consent Judgment. (28) Doe Run Herculaneum, MO Consent Judgment 13JE-CC00557 6/19/13 10/20/14 and 79 FR 62574 * St Louis County.

(e) EPA approved nonregulatory provisions and quasi-regulatory measures.

EPA-Approved Missouri Nonregulatory SIP Provisions Name of nonregulatory SIP
  • provision
  • Applicable geographic or nonattainment area State submittal date EPA approval date Explanation
    (1) Kansas City and Outstate Air Quality Control Regions Plan Kansas City and Outstate 1/24/72 5/31/72, 37 FR 10875 (2) Implementation Plan for the Missouri portion of the St. Louis Interstate Air Quality Control Region St. Louis 1/24/72 5/31/72, 37 FR 10875 (3) Effects of adopting Appendix B to NO2 emissions St. Louis 3/27/72 5/31/72, 37 FR 10875 (4) CO air quality data base St. Louis 5/2/72 5/31/72, 37 FR 10875 (5) Budget and manpower projections Statewide 2/28/72 10/28/72, 37 FR 23089 (6) Emergency episode manual Kansas City 5/11/72 10/28/72, 37 FR 23089 (7) Amendments to Air Conservation Law Statewide 7/12/72 10/28/72, 37 FR 23089 (8) Air monitoring plan Outstate 7/12/72 10/28/72, 37 FR 23089 (9) Amendments to Air Conservation Law Statewide 8/8/72 10/28/72, 37 FR 23089 (10) Transportation control strategy Kansas City 5/11/73
  • 5/21/73
  • 6/22/73, 38 FR 16550
    (11) Analysis of ambient air quality data and recommendation to not designate the area as an air quality maintenance area Kansas City 4/11/74 3/2/76, 41 FR 8956 [FRL 484-4]. (12) Recommendation to designate air quality maintenance areas St. Louis, Columbia, Springfield 5/6/74 9/9/75, 40 FR 41942 [FRL 418-5]. (13) Plan to attain the NAAQS Kansas City, St. Louis 7/2/79 4/9/80, 45 FR 24140 [FRL 1456-1].
  • Correction notice published 7/11/80.
  • (14) Schedule for I/M program and commitment regarding difficult transportation control measures (TCMs) St. Louis 9/9/80 3/16/81, 46 FR 16895 [A-7-FRL-1778-3]. (15) Lead SIP Statewide 9/2/80, 2/11/81, 2/13/81 4/27/81, 46 FR 23412, 7/19/84, 49 FR 29218 [A7 FRL 1802-8], [MO 1515; OAR-FRL-2633-8].
  • Correction notice published 5/15/81.
  • (16) Report on recommended I/M program St. Louis 12/16/80 8/27/81, 46 FR 43139 [A7-FRL 1909-8]. (17) Report outlining commitments to TCMs, analysis of TCMs, and results of CO dispersion modeling St. Louis 2/12/81, 4/28/81 11/10/81, 46 FR 55518 [A7-FRL 1958-3]. (18) 1982 CO and ozone SIP St. Louis 12/23/82, 8/24/83 10/15/84, 49 FR 40164 [EPA Action MO 999; A-7-FRL-2691-8]. (19) Air quality monitoring plan Statewide 6/6/84 9/27/84, 49 FR 38103 [EPA Action MO 1586; A-7-FRL-2682-5]. (20) Vehicle I/M program St. Louis 8/27/84 8/12/85, 50 FR 32411 [MO-1619; A-7-FRL-2880-9]. (21) Visibility protection plan Hercules Glades and Mingo Wildlife Area. 5/3/85 2/10/86, 51 FR 4916 [A-7-FRL-2967-5; MO 1809]. (22) Plan for attaining the ozone standard by December 31, 1987 St. Louis 8/1/85 9/3/86, 51 FR 31328 [A-7-FRL-3073-3]. (23) PM10 plan Statewide 3/29/88, 6/15/88 7/31/89, 54 FR 31524 [FRL-3621-8]. (24) Construction permit fees including Chapter 643 RSMo Statewide 1/24/89, 9/27/89 1/9/90, 55 FR 735 [FRL-3703-4]. (25) PSD NOx requirements including a letter from the state pertaining to the rules and analysis Statewide 7/9/90 3/5/91, 56 FR 9172 [FRL-3908-6]. (26) Lead plan Herculaneum 9/6/90, 5/8/91 3/6/92, 57 FR 8076 [MO6-1-5333; FRL-4102-7]. (27) Ozone maintenance plan Kansas City 10/9/91 6/23/92, 57 FR 27939 [Moll-1-5440; FRL-4140-7]. (28) Small business assistance plan Statewide 3/10/93 10/26/93, 58 FR 57563 [MO-14-5860; FRL-4700-8]. (29) Part D Lead plan Herculaneum 7/2/93, 6/30/94, 11/23/94 5/5/95, 60 FR 22274 [MO-17-1-6023A; FRL-5197-7]. (30) Intermediate permitting program including three letters pertaining to authority to limit potential to emit hazardous air pollutants Statewide 3/31/94, 11/7/94, 10/3/94, 2/10/95 9/25/95, 60 FR 49340 [MO-21-1-6443(a); FRL-5289-6]. (31) Part D lead plan Bixby 7/2/93, 6/30/94 8/4/95, 60 FR 39851 [MO-18-1-6024A; FRL-5263-9]. (32) Transportation conformity plans including a policy agreement and a letter committing to implement the state rule consistent with the Federal transportation conformity rule St. Louis, Kansas City 2/14/95 2/29/96, 61 FR 7711 [MO-29-1-7151a; FRL-5425-2]. (33) Emissions inventory update including a motor vehicle emissions budget Kansas City 4/12/95 4/25/96, 61 FR 18251 [KS-6-1-6985, MO-31-1-7153; FRL 5448-9]. (34) Part D Lead Plan Glover 8/14/96 3/5/97, 62 FR 9970 [MO-015-1015a; FRL-5682-5]. (35) CO Maintenance Plan St. Louis 6/13/97, 6/15/98 1/26/99, 64 FR 3855 [MO 043-1043(a); FRL-6220-1]. (36) 1990 Base Year Inventory St. Louis 1/20/95 2/17/00, 65 FR 8060 [MO 092-1092; FRL-6528-7]. (37) 15% Rate-of-Progress Plan St. Louis 11/12/99 5/18/00, 65 FR 31485 [MO 103-1103; FRL-6701-3]. (38) Implementation plan for the Missouri inspection maintenance program St. Louis 11/12/99 5/18/00, 65 FR 31480 [MO 096-1096b; FRL-6701-6]. (39) Doe Run Resource Recycling Facility near Buick, MO Dent Township in Iron County 5/17/00 10/18/00, 65 FR 62295 [MO 114-1114a; FRL-6885-6]. (40) Commitments with respect to implementation of rule 10 CSR 10-6.350, Emissions Limitations and Emissions Trading of Oxides of Nitrogen Statewide 8/8/00 12/28/00, 65 FR 82285 [Region 7 Tracking No. 113-1113a; FRL-6923-2]. (41) Contingency Plan including letter of April 5, 2001 St. Louis 10/6/97, 4/5/01 6/26/01, 66 FR 33996 [Tracking No. MO-0132-1132, IL 196-3; FRL-7001-7]. (42) Ozone 1-Hour Standard Attainment Demonstration Plan for November 2004 including 2004 On-Road Motor Vehicle Emissions Budgets St. Louis 11/10/99, 11/2/00, 2/28/01, 3/7/01 6/26/01, 66 FR 33996 [MO-0132-1132, IL 196-3;FRL-7001-7]. (43) Doe Run Resources Corporation Primary lead Smelter, 2000 Revision of Lead SIP Herculaneum, MO 1/9/01 4/16/02, 67 FR 18497 [MO 151-1151; FRL-7170-6]. (44) Doe Run Resources Corporation Primary Lead Smelter, 2000 Revision of Lead SIP Glover, MO 6/15/01 4/16/02, 67 FR 18497 [MO 151-1151; FRL-7170-6]. (45) Maintenance Plan for the Missouri Portion of the St. Louis Ozone Nonattainment Area including 2014 On-Road Motor Vehicle Emission Budgets St. Louis 12/6/02 5/12/03, 68 FR 25414 [MO 181-1181; FRL-7494-6]. (46) Maintenance Plan for the 1-hour ozone standard in the Missouri portion of the Kansas City maintenance area for the second ten-year period Kansas City 12/17/02 1/13/04, 69 FR 1921 [MO 201-1201; FRL-7608-8]. (47) Vehicle I/M Program St. Louis 10/1/03 5/13/04, 69 FR 26503 [R07-OAR-2004-MO-0001; FRL-7661-4]. (48) Revised Maintenance Plan of Doe Run Resource Recycling Facility near Buick, MO Dent Township in Iron County 4/29/03 8/24/04, 69 FR 51953 [R07-OAR-2004-MO-0002; FRL-7805-1]. (49) Lead Maintenance Plan Iron County (part) within boundaries of Liberty and Arcadia Townships 1/26/04 10/29/04, 69 FR 63072 [R07-OAR-2004-MO-0003; FRL-7831-1]. (50) Revision to Maintenance Plan for the 1-hour ozone standard in the Missouri portion of the Kansas City maintenance area for the second ten-year period Kansas City 10/28/05 6/26/06, 71 FR 36210 [EPA-R07-OAR-2006-0286; FRL-8188-6]. (51) CAA 110(a)(2)(D)(i) SIP—Interstate Transport Statewide 2/27/07 5/8/07, 72 FR 25085 [EPA-R07-OAR-2007-0249 FRL-8310-5]. (52) Submittal of the 2002 Base Year Inventory for the Missouri Portion of the St. Louis 8-hour ozone nonattainment area and Emissions Statement SIP St. Louis 6/15/06 5/31/07, 72 FR 30272 [EPA-R07-OAR-2007-0383; FRL-8318-8]. (53) Maintenance Plan for the 8-hour ozone standard in the Missouri portion of the Kansas City area Kansas City 5/23/07 8/9/07, 72 FR 44778 [EPA-R07-OAR-2007-0619 FRL-8450-7]. (54) Section 110(a)(2) Infrastructure Requirements for the 1997 8-Hour Ozone NAAQS Statewide 2/27/07 7/11/11, 76 FR 40619 [EPA-R07-OAR-2011-0309 FRL-9429-1] This action addresses the following CAA elements, as applicable: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). (55) VOC RACT Requirements for the 8-hour ozone NAAQS St. Louis 1/17/07, 6/1/11, 8/30/11 1/23/12, 77 FR 3144. 1/6/14, 79 FR 580 [EPA-R07-OAR-2011-0859 FRL-9621-1] [EPA-R07-OAR-2012-0767; FRL-9905-03-Region 7]. (56) CAA Section 110(a)(2) SIP-1978 Pb NAAQS City of Herculaneum, MO 7/29/09 2/17/12, 77 FR 9529 [EPA-R07-OAR-2008-0538; FRL-9632-7]. (57) Regional Haze Plan for the first implementation period Statewide 8/5/09, supplemented 1/30/12 6/26/12, 77 FR 38007 [EPA-R07-OAR-2012-0153; FRL-9688-1] § 52.1339(c); Limited Approval. (58) Section 110(a)(2) Infrastructure Requirements for the 1997 PM2.5 NAAQS Statewide 2/27/07 6/21/13; 78 FR 37457 [EPA-R07-OAR-2013-0208; FRL-9825-7] This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D)(i)(II) prongs 3 and 4, (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). (59) Section 110(a)(2) Infrastructure Requirements for the 2006 PM2.5 NAAQS Statewide 12/28/09 6/21/13; 78 FR 37457 [EPA-R07-OAR-2013-0208; FRL-9825-7] This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D)(i)(II) prongs 3 and 4, (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) (60) Section 128 Declaration: Missouri Air Conservation Commission Representation and Conflicts of Interest Provisions; Missouri Revised Statutes (RSMo) RSMo 105.450, RSMo 105.452, RSMo 105.454, RSMo 105.462, RSMo 105.463, RSMo 105.466, RSMo 105.472, and RSMo 643.040.2 Statewide 8/08/12 6/21/13; 78 FR 37457 [EPA-R07-OAR-2013-0208; FRL-9825-7]. (61) Section 110(a)(2) Infrastructure Requirements for the 2008 Pb NAAQS Statewide 12/20/11 8/19/14, 79 FR 48994 [EPA-R07-OAR-2014-0290; FRL-9915-28-Region 7] This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). (62) Implementation Plan for the 2008 Lead NAAQS City of Herculaneum, MO 4/18/13 10/20/14, 79 FR 62574 [EPA-R07-OAR-2014-0448; FRL-9918-18-Region-7]
    [FR Doc. 2015-19092 Filed 8-5-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2014-0441; FRL-9930-99] Fluazifop-P-Butyl; Pesticide Tolerance AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation amends a tolerance for residues of fluazifop-P-butyl in or on sweet potato, roots. Syngenta Crop Protection requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective August 6, 2015. Objections and requests for hearings must be received on or before October 5, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2014-0441, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

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

    You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. 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:

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2014-0441 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 5, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2014-0441, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

    Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

    Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    II. Summary of Petitioned-For Tolerance

    In the Federal Register of September 5, 2014 (79 FR 53009) (FRL-9914-98), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 4F8262) by Syngenta Crop Protection, P.O. Box 18300, Greensboro, NC 27419-8300. The petition requested that 40 CFR 180.411 be amended by amending the established tolerance for residues of the herbicide fluazifop-P-butyl in or on sweet potato, roots from 0.05 parts per million (ppm) to 1.5 ppm. That document referenced a summary of the petition prepared by Syngenta, the registrant, which is available in the docket, http://www.regulations.gov. No FFDCA-related comments were received on the notice of filing.

    III. Aggregate Risk Assessment and Determination of Safety

    Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

    Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for fluazifop-P-butyl including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with fluazifop-P-butyl follows.

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

    Fluazifop-P-butyl is the R enantiomer of fluazifop-butyl [(R,S)-2-(4-((5-(trifluoromethyl)-2-pyridinyl)oxy)phenoxy)propanoic acid, butyl ester]. The toxicology database for fluazifop-P-butyl consists of studies conducted using fluazifop-butyl (racemic mixture) and its enriched R-isomer, fluazifop-P-butyl. Comparison studies have shown similar toxicities from both compounds. Metabolism studies have been conducted in the rat with fluazifop-butyl, and absorption, excretion, and confirmatory metabolism studies in the dog with fluazifop-butyl, and hamster with fluazifop-P-butyl. Comparative metabolism studies in the rat show that both fluazifop-P-butyl and fluazifop-butyl mixed isomers are rapidly hydrolyzed to fluazifop acid and the [S] enantiomer is rapidly converted to the [R] enantiomer in the blood, yielding similar toxicities. In vivo, the S-isomer quickly converts to the R-isomer.

    Oral dog and female rat studies show similar results, while male rats show greater toxicity. Fluazifop-butyl is rapidly absorbed through the gut after oral dosing and the ester linkage is hydrolyzed to produce the fluazifop acid in the blood. No parent fluazifop-ester was detected in plasma at any time. Male rats show similar fluazifop acid excretion to the female, but excretion is slower, because fluazifop is excreted in the bile and results in a higher percentage in the feces.

    The liver and kidney are its target organs expressed for the most part as liver toxicity in the presence of peroxisome proliferation and exacerbation of age-related kidney toxicity. These data are reasonably consistent among the rat with fluazifop-butyl and fluazifop-P-butyl, dog with fluazifop-butyl, and hamster with fluazifop-P-butyl. Fluazifop-P-butyl shows similar toxicity by both the inhalation and oral routes.

    Although the liver and kidney were the organs most consistently affected, other findings were used as endpoints for selection of the points of departure. A rat developmental study exhibiting diaphragmatic hernia effects was used as the basis to select the acute dietary endpoint for females 13-49 years of age. The short-term incidental oral and children's dermal endpoints were selected based upon a maternal body weight gain decrement exhibited in the developmental toxicity studies performed on rats. The chronic dietary (all populations), intermediate-term dermal and inhalation, as well as the intermediate-term incidental oral endpoints, were selected from the 2-generation reproduction study in rats. This study was significant in exhibiting decreased testes and epididymal weights in males, along with decreased uterine and pituitary weights in females. In regard to the short-term dermal for adults and inhalation endpoints used in this assessment, the developmental toxicity studies performed on rats were used as the basis for endpoint selection. These studies were notable in exhibiting decreased fetal weights, as well as hydroureter and delayed ossification effects. An additional endpoint was chosen that was specific for short-term dermal exposure to children, as a developmental effect is generally protective of pregnant women and fetuses. In this case, the maternal toxicity (body weight gain decrement) was chosen to be protective of children.

    Indications of possible neurotoxicity were observed in the acute neurotoxicity study, including clinical signs indicative of toxicity (reduced activity, decreased rearing, hunched posture and/or piloerection), decreased body temperature, and decreased motor activity (total distance and number of rearings). No signs of neurotoxicity were observed in the subchronic neurotoxicity test at doses up to 70 mg/kg/day in males and 328 mg/kg/day in females. There was no observed immunotoxicity resulting from fluazifop-P-butyl exposure in the submitted study. There was no carcinogenicity observed in acceptable studies in the rat with fluazifop-butyl or in the hamster for fluazifop-P-butyl. The hamster was selected for cancer study, because liver peroxisome proliferation more closely resembled what was found for human liver cells. There was no mutagenicity observed for fluazifop-butyl or fluazifop-P-butyl.

    In a dermal absorption and pharmacokinetic study in humans, most of the applied dose appeared to be in the stratum corneum and easily removed (the unrecovered test material was speculated to be in the outer layers of the skin). Peak plasma levels were shown to occur 24 to 31 hours after application in these men. The one half-life for excretion was about 18 hours. Specific information on the studies received and the nature of the adverse effects caused by fluazifop-P-butyl as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document “Fluazifop-P-Butyl. Human-Health Risk Assessment for Sweet Potato Label Amendment and Resulting Tolerance Increase.” at pages 28-36 in docket ID number EPA-HQ-OPP-2014-0441.

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.

    A summary of the toxicological endpoints for fluazifop-P-butyl used for human risk assessment is shown in Table 1 of this unit.

    Exposure/scenario Point of departure and
  • uncertainty/safety factors
  • RfD, PAD, LOC for
  • risk assessment
  • Study and toxicological effects
    Acute dietary (Females 13-49 years of age) NOAEL = 50 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Acute RfD = 0.50 mg/kg/day MRIDs: 00088857, 92067047, 00088858, 92067048, Rat developmental.
  • Developmental LOAEL = 200 mg/kg/day based on diaphragmatic hernia.
  • Acute dietary (General population including infants and children) An appropriate endpoint for the general population attributable to a single dose was not identified in the available studies. Chronic dietary (All populations) NOAEL = 0.74 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Chronic RfD = cPAD = 0.0074 mg/kg/day MRIDs: 00088859, 92067050, Rat reproduction study; reproductive
  • LOAEL = 5.8 mg/kg/day based on decreased testes and epididymal weights.
  • Incidental oral short-term (1 to 30 days) NOAEL = 100 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Residential LOC for MOE = 100 MRIDs: 46082913, 46158401, Rat developmental study; maternal
  • LOAEL = 300 mg/kg/day based on maternal body weight gain decrement during GD 7-16.
  • Dermal short-term (1 to 30 days: Children) NOAEL = 100 mg/kg/day
  • DAF= 9% (low exposure) or 2% (high exposure).
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Residential LOC for MOE = 100 MRIDs: 46082913, 46158401, Rat developmental study; maternal.
  • LOAEL = 300 mg/kg/day based on maternal body weight gain decrement during GD 7-16.
  • Dermal short-term (1 to 30 days: Adults) NOAEL = 2.0 mg/kg/day
  • DAF = 9% (low exposure) or 2% (high exposure).
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Residential LOC for MOE = 100 MRIDs: 46082903, 46082013, Rat developmental study; Developmental
  • LOAEL = 5.0 mg/kg/day based on fetal weight decrement, hydroureter, and delayed ossification.
  • Inhalation short-term (1 to 30 days) Inhalation (or oral) study NOAEL = 2.0 mg/kg/day (inhalation absorption rate = 100%)
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Residential LOC for MOE = 100 MRIDs: 46082903, 46082013, Rat developmental study; Developmental
  • LOAEL = 5.0 mg/kg/day based on fetal weight decrement, hydroureter, and delayed ossification.
  • Cancer (Oral, dermal, inhalation) Not likely to be carcinogenic to humans. Point of Departure (POD) = A data point or an estimated point that is derived from observed dose-response data and used to mark the beginning of extrapolation to determine risk associated with lower environmentally relevant human exposures. NOAEL = no observed adverse effect level. LOAEL = lowest observed adverse effect level. UF = uncertainty factor. UFA = extrapolation from animal to human (interspecies). UFH = potential variation in sensitivity among members of the human population (intraspecies). UFL = use of a LOAEL to extrapolate a NOAEL. UFS = use of a short-term study for long-term risk assessment. UFDB = to account for the absence of key data (i.e., lack of a critical study). FQPA SF = FQPA Safety Factor. PAD = population adjusted dose (a = acute, c = chronic). RfD = reference dose. MOE = margin of exposure. LOC = level of concern. N/A = not applicable. DAF = dermal absorption factor.
    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to fluazifop-P-butyl, EPA considered exposure under the petitioned-for tolerance as well as all existing fluazifop-P-butyl tolerances in 40 CFR 180.411. EPA assessed dietary exposures from fluazifop-P-butyl in food as follows:

    i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. Such effects were identified for fluazifop-P-butyl. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) 2003-2008 National Health and Nutrition Survey/What We Eat in America (NHANES/WWEIA) database. The acute dietary analysis was conducted using 100% crop treated assumptions and tolerance-level residues, adjusted as appropriate using factors from the metabolism studies, to account for residues of concern not measured by the analytical method.

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment, EPA used the food consumption data from the USDA 2003-2008 NHANES/WWEIA database. As to residue levels in food, the chronic dietary analysis was conducted assuming mean residue levels from crop field trials with a ratio adjustment for additional metabolites of concern, average percent crop treated estimates, and experimentally-determined processing factors.

    iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that fluazifop-P-butyl does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

    iv. Anticipated residue and percent crop treated (PCT) information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

    Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

    • Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

    • Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.

    • Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

    The Agency estimated the PCT for existing uses as follows: For the acute dietary analysis, 100 PCT was assumed for all crops. The following average percent crop treated estimates were used in the chronic dietary risk assessments for the following crops that are currently registered for fluazifop-P-butyl: Apricots, 2.5%; asparagus, 2.5%; carrots, 15%; cherries, 1%; cotton, 1%; dry beans/peas. 1%; garlic, 10%; grapefruit, 15%; grapes, 2.5%; nectarines, 1%; onions, 10%; oranges, 2.5%; peaches, 2.5%; peanuts, 1%; pecans, 1%; peppers, 2.5%; plums, 2.5%; potatoes, 1%; prunes, 2.5%; soybeans, 2.5%; and sugar beets, 1%; 100 PCT was assumed for sweet potatoes and all other registered crops not listed above.

    To determine PCT values, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for each chemical/crop combination from the most recent 6-7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than one. In those cases, 1% is used as the average PCT and 2.5% is used as the maximum PCT. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.

    The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which fluazifop-P-butyl may be applied in a particular area.

    2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for fluazifop-P-butyl in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of fluazifop-P-butyl. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

    Estimated drinking water concentrations (EDWCs) in ground water were modeled using Tier I SCIGROW (version 2.3) and surface water EDWCs were modeled using Tier II PRZM (Pesticide Root Zone Model) and EXAMS (Exposure Analysis Modeling System). Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For the acute dietary risk assessment, the surface water concentration value of 33.4 ppb was used to assess the contribution from drinking water. For the chronic dietary risk assessment, the surface water concentration value of 6.6 ppb was used to assess the contribution from drinking water.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

    Fluazifop-P-butyl is currently registered for the following uses that could result in residential exposures: Non-agricultural outdoor buildings, building foundations, curbs, driveways, fencerows, non-agricultural areas (wildlife refuge), non-crop areas, ornamentals (lawns, flowering shrubs, flowering plants, gardens, ground covers, plants, trees, turf, and woody shrubs), patios, pathways, rights-of-way, sidewalks, and storage yards. EPA assessed residential exposure using the following assumptions. For handlers, there is a potential for short-term inhalation and dermal exposure. Residential handler exposure scenarios include handwand, hose and sprayer, backpack, sprinkler can, and RTU hose end sprayer.

    There is also the potential for short-term post-application exposure for dermal exposure to all groups: Adult and child (1 to <2 years) turf-high contact; adult and youth (11-16 years) mowing; adult, child (6 to <11 years) and youth (11-16 years) golfing; adult and child (6 to <11 years) garden. Two separate dermal absorption values were used: 9% is used for assessing dermal exposures while golfing or mowing a lawn, since these are representative of low exposure activities (i.e., the Agency assumes that 9% of dermal exposures will be absorbed), whereas 2% is used for assessing dermal exposures from high-contact lawn activities, since these are representative of high-exposure activities (i.e., the Agency assumes that 2% of dermal exposures will be absorbed). In addition, there is potential for short-term post-application incidental oral exposure for children (1 to <2 years). Chemical-specific dislodgeable foliar residue (DFR) data are available and were used for the residential post application exposure assessment for gardens. Since Turf Transferable Residue (TTR) data are not available for fluazifop-P-butyl, default TTR values were used for the residential post application exposure assessment for turf. Given the conservatisms associated with default TTR values and the potential compounding nature of conservatisms in the turf assessment, EPA is able to rely upon the calculated exposure estimates with confidence that exposure is not being underestimated. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

    4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” EPA has not found fluazifop-P-butyl to share a common mechanism of toxicity with any other substances, and fluazifop-P-butyl does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that fluazifop-P-butyl does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

    D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

    2. Prenatal and postnatal sensitivity. No increased offspring sensitivity over parent was seen in the rabbit pre-natal developmental studies or the rat post-natal reproduction study, and no evidence of neurotoxicity was observed. Several rat developmental toxicity studies conducted on both fluazifop-butyl and fluazifop-P-butyl indicate fetal effects (ranging from delayed ossification, fetal weight decrements, increased incidence of small fetuses, cervical arches and centrum in fetuses and litters at levels from 5 to 20 mg/kg/day to diaphragmatic hernia at 200 mg/kg/day) in the absence of maternal toxicity.

    3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

    i. The toxicity database for assessing potential prenatal and postnatal toxicity of fluazifop-P-butyl to infants and children is complete.

    ii. As there is limited indication of developmental neurotoxicity resulting from exposure to fluazifop-P-butyl with the current data sets, there is no need for a developmental neurotoxicity study. There were no developmental or central nervous system malformations seen in any of the developmental toxicity studies with rats or rabbits and no evidence of neurotoxicity or neuropathology in adult animals in the available studies. The toxicological significance of the marginal increases in brain weights at high doses is unknown in the absence of corroborative histopathological lesions. EPA therefore concludes that there is not a concern for developmental neurotoxicity resulting from exposure to fluazifop-butyl or fluazifop-P-butyl.

    iii. While there was quantitative evidence of increased susceptibility in the fetuses of rats exposed in utero to fluazifop-butyl and fluazifop-P-butyl, EPA concludes that there is no residual uncertainty for prenatal or postnatal toxicity that would warrant an additional 10X safety factor. The available studies clearly identify well-defined NOAELs and LOAELs that are consistent across the five developmental rat toxicity studies. In addition, the Agency has selected, based on these studies, a developmental endpoint of concern (diaphragmatic hernia) for assessing acute dietary risk. As this endpoint is relevant to single exposures, the acute risk assessment based on this endpoint will be protective of any fetal effects resulting from a single exposure. Further, the Agency has selected, based these studies, a developmental endpoint of concern (delayed ossifications) for repeat exposure scenarios, which will be protective of any developmental effects in those scenarios.

    iv. There are no residual uncertainties identified in the exposure databases. There is an adequate toxicity database for fluazifop-P-butyl and exposure data are complete. The dietary and residential assessments are based on reliable data and will not underestimate exposure/risk. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to fluazifop-P-butyl in drinking water. EPA used similarly conservative assumptions to assess post application exposure of children as well as incidental oral exposure of toddlers. Although EPA has required additional data on transferable residues from treated turf for fluazifop-P-butyl, EPA is confident that it has not underestimated turf exposure due to the conservativeness of the default turf transfer value and conservative assumptions in the short-term turf assessment procedures (e.g., assuming residues do not degrade over the thirty day assessment period and assuming high-end activities on turf for every day of the assessment period). The additional data on transferable turf residues have been required in case refinement of exposure assessments is needed in the future and to further EPA's general understanding of the availability of turf transferable pesticide residues. These assessments will not underestimate the exposure and risks posed by fluazifop-P-butyl.

    E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

    1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to fluazifop will occupy 14% of the aPAD for females 13-49 years old, the only relevant population subgroup for the acute dietary endpoint.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to fluazifop-P-butyl from food and water will utilize 64% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of fluazifop-P-butyl is not expected.

    3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Fluazifop-P-butyl is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to Fluazifop-P-butyl.

    Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 210 for adults and 3100 for children. Because EPA's level of concern for fluazifop-P-butyl is a MOE of 100 or below, these MOEs are not of concern.

    4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

    An intermediate-term adverse effect was identified; however, fluazifop-P-butyl is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for fluazifop-P-butyl.

    5. Aggregate cancer risk for U.S. population. Fluazifop-P-butyl has been classified as “Not likely to be carcinogenic to humans”; therefore, EPA concludes that fluazifop-P-butyl will not pose a cancer risk.

    6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to fluazifop-P-butyl residues.

    IV. Other Considerations A. Analytical Enforcement Methodology

    Adequate enforcement methodology (High Performance Liquid Chromatography/Ultra-Violet Spectrometry (HPLC/UV)) is available to enforce the tolerance expression. The method is available in Pesticide Analytical Methods (PAM), Volume II: Method I for animal tissues and milk and Method II for crops. The stated detection limits are 0.02-0.05 ppm for crops, 0.01 ppm for milk, and 0.02 ppm for animal tissues. Improved enforcement methods based on liquid chromatography and tandem mass spectroscopy, LC/MS/MS, are available as Method GRM044.01A and Method GRM044.02A. Both of these methods have been validated at 0.01 ppm on a wide variety of crop matrices.

    B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

    The Codex has not established a MRL for fluazifop-P-butyl.

    V. Conclusion

    Therefore, the tolerance is amended for residues of fluazifop-P-butyl in or on sweet potato, roots from 0.05 ppm to 1.5 ppm.

    VI. Statutory and Executive Order Reviews

    This action amends a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. 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). Because this action has been exempted from review under Executive Order 12866, this action 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) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

    Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

    This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

    This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

    VII. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule 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. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: July 23, 2015. Susan Lewis, Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.411, revise the commodity “Sweet potato, roots” in the table in paragraph (a) to read as follows:
    § 180.411 Fluazifop-P-butyl; tolerances for residues.

    (a) * * *

    Commodity Parts per
  • million
  • *    *    *    *    * Sweet potato, roots 1.5
    [FR Doc. 2015-18825 Filed 8-5-15; 8:45 am] BILLING CODE 6560-50-P
    CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD 40 CFR Part 1600 Organization and Functions of the Chemical Safety and Hazard Investigation Board AGENCY:

    Chemical Safety and Hazard Investigation Board.

    ACTION:

    Final rule.

    SUMMARY:

    This rule amends the quorum and voting regulations of the Chemical Safety and Hazard Investigation Board (CSB). The amendments add a requirement for the Chairperson to place notation votes that have been calendared for discussion at a Board Meeting to the agenda of a public meeting within 90 days of the calendared notation vote. The rule also adds a requirement for the Chairperson to conduct a minimum of four public meetings per year in Washington, DC.

    DATES:

    Effective August 6, 2015.

    SUPPLEMENTARY INFORMATION:

    This final rule will promote increased transparency and accountability for Board activities. It aligns with the Open Government principles of transparency, participation, and collaboration, as outlined in the Memorandum on Transparency and Open Government (74 FFR 4685, Jan. 26, 2009).

    The Board conducts most votes through a process of notation voting. In notation voting, Board Members may vote to approve, disapprove, or calendar a notation item for discussion at a public meeting. In recent years, notation items have been calendared but then not placed on the agenda for discussion at a public meeting of the Board. The addition of language to 40 CFR 1600.5(b) will ensure that calendaring is used in the way it was intended. It will require the consideration of calendared notation votes at a public meeting within 90 days of the calendaring action. Prior to the adoption of this amendment to the rule, calendaring could amount to a veto by a single Member even when other Members wished to vote on the item. This added language will prevent that action and preserve only the original intent of calendaring. 40 CFR 1600.5(b) of this rule was amended to state that a “notation vote to schedule a public meeting may not be calendared.” This change is intended to require a straight vote when one or more members may be reluctant to schedule a public meeting. The result is intended to provide an opportunity for important substantive business of the Board to be discussed publicly.

    New paragraph (c) adds provisions to ensure that the Board meets at least quarterly to review important CSB mission work and reaffirms the authority of all Board Members to add items for discussion to the agendas of such CSB public meetings. This provision reinforces the policy of the Board (in Board Order 1, Section 9.b.2) that permits members to request public meeting agenda additions or changes. The amended rule also requires that the Board's quarterly meetings consider, at a minimum, calendared notation votes, important mission-related activities, and quarterly agency action plan progress. This portion of the rule is also intended to increase the transparency of Board actions, to promote the Board's accountability to the public, and to ensure regular, relevant feedback is received from the public related to the agency's mission work.

    Although not required for this action, the Board published the proposed amendments in the Federal Register and provided thirty days for public comment.

    The CSB received two written comments during the written comment period and several oral public comments at a meeting on June 18, 2015. The written comments have been posted to the CSB Web site at http://www.csb.gov/about-the-csb/public-comments/, and the oral comments concerning the rule are in the transcript of the discussion which took place on June 18, 2015.

    One written comment and each of the oral comments were favorable. The written comment from the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW), supported the rule because it will increase the transparency of the Board's actions and facilitate stakeholder involvement and CSB accountability. The USW fully supports the decision to hold regular quarterly business meetings, but noted that a method for participation by phone for those not in the Washington area is important. The comment also supported the rule's new requirements that calendared notation items be discussed in public within 90 days and that all Board Members may add items to public meeting agendas.

    The USW also noted that Board Members should not cancel any investigation without sufficient notification to stakeholders. Earlier this year, the CSB voted to terminate three investigations at a meeting on January 28, 2015, even though the Federal Register notice (80 FR 2392 (Jan. 16, 2015)) did not provide specific notice that the Board might take such an action. The Board received criticism for providing inadequate notice. New section (ii) of this rule provides in pertinent part that each quarterly meeting shall include as an agenda item a “review by the Board of the schedule for completion of all open investigations, studies, and other important work of the Board.” If the Board were considering the cancellation of a particular investigation, such a discussion should occur at a quarterly meeting under this general agenda item. Without specifically stating such a possibility, interested members of the public might not be aware that the Board could vote to cancel a specific investigation at a quarterly public meeting.

    An oral public comment from the American Chemistry Council was supportive of the amended rule.

    The CSB also received a negative comment from Public Employees for Environmental Responsibility (PEER). PEER commented that the thirty day comment period was insufficient. However, as noted above, this rule could have been published as a final rule without any public comment period, and the Board also scheduled a public meeting to discuss the proposed changes and to provide an additional opportunity for public input.

    PEER also noted that the rule could force the Board to hold a public meeting every single workday to accommodate this requirement to consider calendared notation items within ninety days. The Board does not share this concern. Because the Board will hold quarterly and other public meetings, the Board would rarely need to convene a special meeting solely to consider a calendared notation item.

    PEER expressed concern that the Washington, DC, location for business meetings was not convenient to all stakeholders. With respect to this concern, the CSB has provided and plans to continue to provide an opportunity for teleconference or webcast participation in the four meetings in Washington, DC. The CSB will also continue to conduct public meetings, as appropriate, throughout the United States.

    PEER recommended undertaking a cost benefit analysis of the rule before finalizing it due to a concern that the proposed rule could negatively impact public meetings held in communities in which an accident has occurred. PEER noted that the CSB appears to lack the personnel and resources to hold both Washington, DC and community-based meetings effectively. The Board shares this important concern. However, the Board has determined that this concern is a basis for caution, not a reason to delay adoption of the rule.

    The Board contemplates that the cost of regular business meetings in Washington, DC, will be minimal as such meetings will be conducted at CSB headquarters, limited in scope, and should not involve excessive staff time to prepare and to conduct. The Board will evaluate per meeting costs over the next year to ensure that these costs are reasonable in relation to the anticipated benefits, and consider the need to seek additional resources to ensure that the new rule does not negatively impact community based public meetings.

    Having considered these comments, the Board has determined that the rule should be finalized without additional changes at this time. The Board plans to review the rule a year from its adoption to ensure the revisions have succeeded in accomplishing the primary objectives of improving transparency and accountability to stakeholders.

    Statutory Authority:

    5 U.S.C. 301, 552(a)(1); 42 U.S.C. 7412(r)(6)(N).

    Regulatory Impact

    Administrative Procedure Act: 5 U.S.C. 553(b)(3)(A), provides that when regulations involve matters of agency organization, procedure, or practice, the agency may publish regulations in final form without notice and comment. Because this rule is intended to promote public participation and transparency for Board activities, however, the Board provided thirty days for public comment and an opportunity for public comments on June 18, 2015, when Board Members met in Washington, DC (80 FR 32339 (June 8, 2015)).

    Small Business Regulatory Enforcement Fairness Act: This regulation is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. Because this regulation involves internal agency procedures and quarterly business meetings, this regulation: a. Does not have an annual effect on the economy of $100 million or more. b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, local government agencies or geographic regions. c. Does not have a significant adverse effect on competition, employment, investment, productivity, innovation or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

    Regulatory Flexibility Act: The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that a rule that has a significant economic impact on a substantial number of small entities, small businesses, or small organizations must include an initial regulatory flexibility analysis describing the regulation's impact on such small entities. This analysis need not be undertaken if the agency has certified that the regulation will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). The CSB has considered the impact of this rule under the Regulatory Flexibility Act, and certifies that a final rule will not have a significant economic impact on a substantial number of small entities.

    Paperwork Reduction Act: The CSB reviewed this rule to determine whether it involves issues that would subject it to the Paperwork Reduction Act (PRA). The CSB has determined that that the rule does not require a “collection of information” under the PRA.

    Unfunded Mandates Reform Act of 1995: The rule does not require the preparation of an assessment statement in accordance with the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531. This rule does not include a federal mandate that may result in the annual expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of more than the annual threshold established by the Act ($128 million in 2006, adjusted annually for inflation).

    List of Subjects in 40 CFR Part 1600

    Administrative practice and procedure.

    Dated: July 22, 2015. Rick Engler, Board Member.

    Accordingly, for the reasons set forth in the preamble, the Chemical Safety and Hazard Investigation Board amends 40 CFR part 1600 as follows:

    PART 1600—ORGANIZATION AND FUNCTIONS OF THE CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD 1. The authority citation continues to read as follows: Authority:

    5 U.S.C. 301, 552(a)(1); 42 U.S.C. 7412(r)(6)(N).

    2. Amend § 1600.5 by revising paragraph (b) and adding a new paragraph (c) to read as follows:
    § 1600.5 Quorum and voting requirements.

    (b) Voting. The Board votes on items of business in meetings conducted pursuant to the Government in the Sunshine Act. Alternatively, whenever a Member of the Board is of the opinion that joint deliberation among the members of the Board upon any matter at a meeting is unnecessary in light of the nature of the matter, impracticable, or would impede the orderly disposition of agency business, such matter may be disposed of by employing notation voting procedures. A written notation of the vote of each participating Board member shall be recorded by the General Counsel who shall retain it in the records of the Board. If a Board member votes to calendar a notation item, the Board must consider the calendared notation item at a public meeting of the Board within 90 days of the date on which the item is calendared. A notation vote to schedule a public meeting may not be calendared. The Chairperson shall add any calendared notation item to the agenda for the next CSB public meeting if one is to occur within 90 days or to schedule a special meeting to consider any calendared notation item no later than 90 days from the calendar action.

    (c) Public Meetings and Agendas. The Chairperson, or in the absence of a chairperson, a member designated by the Board, shall schedule a minimum of four public meetings per year in Washington, DC, to take place during the months of October, January, April, and July.

    (1) Agenda. The Chairperson, or in the absence of a chairperson, a member designated by the Board, shall be responsible for preparation of a final meeting agenda. The final agenda may not differ in substance from the items published in the Sunshine Act notice for that meeting. Any member may submit agenda items related to CSB business for consideration at any public meeting, and the Chairperson shall include such items on the agenda. At a minimum, each quarterly meeting shall include the following agenda items:

    (i) Consideration and vote on any notation items calendared since the date of the last public meeting;

    (ii) A review by the Board of the schedule for completion of all open investigations, studies, and other important work of the Board; and

    (iii) A review and discussion by the Board of the progress in meeting the CSB's Annual Action Plan.

    (2) Publication of agenda information. The Chairperson shall be responsible for posting information related to any agenda item that is appropriate for public release on the CSB Web site no less than two days prior to a public meeting.

    [FR Doc. 2015-18318 Filed 8-5-15; 8:45 am] BILLING CODE P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [GN Docket No. 12-268; FCC 15-69] Expanding the Economic and Innovation Opportunities of Spectrum through Incentive Auctions AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule; petition for reconsideration.

    SUMMARY:

    In this Second Order on Reconsideration, the Commission addresses petitions for reconsideration of our Order adopting rules to implement the broadcast television spectrum incentive auction. Based on the rules we adopted in the Incentive Auction R&O, we are now developing the detailed procedures necessary to govern the auction process. As we have stated before, our intention is to begin accepting applications to participate in the incentive auction in the fall of 2015, and to start the bidding process in early 2016. We issue this Order now in order to provide certainty for prospective bidders and other interested parties in advance of the incentive auction. We largely affirm our decisions in the Incentive Auction R&O, although we make certain clarifications and modifications in response to issues raised by the petitioners.

    DATES:

    Effective September 8, 2015, except for the amendment to § 73.3700(c)(6) which contains new or modified information collection requirements that have not been approved by Office of Management and Budget (OMB). The Federal Communications Commission will publish a document in the Federal Register announcing the effective date.

    FOR FURTHER INFORMATION CONTACT:

    Aspasia Paroutsas, (202) 418-7285, or by email at [email protected], Office of Engineering and Technology.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Second Order on Reconsideration in GN Docket No. 12-268, FCC 15-69, adopted on June 17, 2015 and released on June 19, 2015. The full text may also be downloaded at: www.fcc.gov. People with Disabilities: 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 & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

    Synopsis of Second Order on Reconsideration 1. Market Variation

    1. We deny ATBA's and the Affiliates Associations' petitions for reconsideration of the decision to accommodate market variation as necessary in the 600 MHz Band Plan. First, Affiliates Associations argue that we “should consider focusing resources on recovering sufficient spectrum in the most constrained markets to allow a truly national plan, even if that means accepting a lower spectrum clearing target.” We disagree. Because the amount of UHF spectrum recovered through the reverse auction and the repacking process depends on the extent of broadcaster participation and other factors in each market, we must have the flexibility to accommodate market variation. We agree with CTIA that market variation is essential to avoiding the “lowest common denominator” effect of establishing nationwide spectrum offerings based only on what is available in the most constrained market despite the availability of more spectrum in the vast majority of the country. Allowing for market variation also will enable us to ensure that broadcasters have ample opportunity to participate in the reverse auction in markets where interest is high.

    2. Second, we disagree with ATBA's claim that accommodating market variation will result in reclaiming and repurposing more spectrum than for which there is demand. The purpose of accommodating market variation is to prevent constrained markets from decreasing the amount of repurposed spectrum that will be available in most areas nationwide, not to increase the amount that is repurposed in areas that lack broadcaster participation and/or demand from wireless carriers. Further, the Middle Class Tax Relief and Job Creation Act of 2012 (“Spectrum Act”) ensures a voluntary, market-based auction by requiring the forward auction to raise enough proceeds to satisfy the minimum proceeds requirements—in particular, the winning bids of reverse auction participants—before licenses can be reassigned or reallocated. In other words, the Commission cannot repurpose any spectrum through the incentive auction process unless there is sufficient demand for the spectrum from wireless carriers participating in the forward auction. While ATBA expresses concern about displacement of LPTV stations in rural and underserved areas where they claim demand for wireless spectrum will be minimal, there are critical advantages to having a generally consistent band plan, including limiting the amount of potential interference between broadcast and wireless services and helping wireless carriers achieve economies of scale when deploying their new networks. Accordingly, the Commission must recover spectrum in rural areas as well as urban ones. As we noted in the Incentive Auction R&O, however, “[i]n no case will we offer more spectrum in an area than the amount we decide to offer in most markets nationwide.”

    3. As we explained in the Incentive Auction R&O, 79 FR 48442, August 15, 2014, we fully recognize the advantages of a generally consistent band plan. Nevertheless, the flexibility to accommodate a limited amount of market variation is absolutely necessary to address the challenges associated with the 600 MHz Band Plan. In affirming this threshold decision, we make no determination on the issues related to market variation, including how much market variation to accommodate, on which we sought comment in the Incentive Auction Comment PN. We will resolve those issues in the forthcoming Incentive Auction Procedures PN. Accordingly, we decline to address the Affiliates Associations' request for clarification regarding issues related to market variation. Likewise, NAB's arguments that market variation will unnecessarily complicate the auction are untimely because we have not yet adopted the final auction procedures. We likewise decline to address the timing and status of auction and repacking software, as these matters will be addressed in the Incentive Auction Procedures PN.

    2. Guard Bands

    4. We deny ATBA's and Free Access' petitions to reconsider the size of the guard bands. We also deny Free Access' petition to reconsider incorporating remainder spectrum into the 600 MHz guard bands. First, we agree with Google/Microsoft and WISPA that the guard bands adopted in the Incentive Auction R&O are permitted under the Spectrum Act. As Google/Microsoft and WISPA point out, ATBA and Free Access apply an incorrect standard for determining guard band size. In the Incentive Auction R&O, we specifically rejected suggestions that the “technically reasonable” standard in the statute requires us to restrict guard bands to “the minimum size necessary” to prevent harmful interference. The Spectrum Act clearly permits the Commission to establish “technically reasonable” guard bands in the 600 MHz Band. Petitioners provide no basis to revisit our interpretation of the “technically reasonable” standard set forth in the Incentive Auction R&O.

    5. Second, ATBA claims that the record does not support adopting guard bands larger than three megahertz. This claim is without merit. Most commenters supported guard bands within the size range we adopted, with some commenters recommending much larger guard bands. Furthermore, the guard bands are tailored to the technical properties of the 600 MHz Band under each spectrum recovery scenario, as well as to the unique goals of the incentive auction. Our technical analysis, provided in the Technical Appendix of the Incentive Auction R&O, corroborated our conclusion that the guard bands adopted are technically reasonable to prevent harmful interference.

    6. Third, ATBA claims that the Commission is improperly using the auction as a “means to reallocate spectrum” from licensed services to unlicensed services. We disagree. As discussed above, the Spectrum Act allows us to establish “technically reasonable” guard bands to protect against harmful interference. We considered a number of factors in creating the guard bands, including the technical properties of the 600 MHz Band, the need to accommodate different spectrum recovery scenarios (because we will not know in advance of the auction how much spectrum will be repurposed), the need to generate sufficient forward auction proceeds, and the problems that would be associated with auctioning “remainder spectrum.” Therefore, we reject the argument that we are sizing the guard bands solely to facilitate unlicensed use. The fact that the Spectrum Act allows us to make guard bands available for unlicensed use does not mean that we are reallocating spectrum from licensed services to unlicensed use.

    7. Additionally, we deny Free Access' petition to reconsider incorporating remainder spectrum into the 600 MHz guard bands. In the Incentive Auction R&O, we determined that adding remainder spectrum to the guard bands would enhance interference protection for licensed services and avoid unduly complicating the bidding procedures. Further, incorporating the remainder spectrum creates guard bands that, under every band plan scenario, are no larger than “technically reasonable.” Because the guard bands we establish by incorporating the remainder spectrum will be no larger than “technically reasonable,” we have complied with the requirements of the Spectrum Act.

    3. Band Plan Technical Considerations

    8. We dismiss, and on alternative and independent grounds, we deny Artemis' petition for reconsideration. We agree with Mobile Future that Artemis should have raised its arguments previously, and that not doing so is grounds for dismissing its petition. While Artemis asserts it could not have made its claims before because it was still in the process of testing when the Incentive Auction R&O was issued, Artemis concedes that it has been developing its technology for over a decade. It has not shown why it was unable to raise these facts and arguments before adoption of the Incentive Auction R&O. Furthermore, during the course of the proceeding, the Wireless Bureau released a Band Plan PN, which provided sufficient detail about the band plans under consideration (including both FDD and TDD options) to allow Artemis to comment on those that could potentially impact its technology. In addition to the original comment cycle, we released a number of supplemental public notices on key issues, and received additional ex parte filings until the Sunshine Notice took effect and the Incentive Auction R&O was adopted. Even if, as Artemis claims, it was still testing its technology when the Incentive Auction R&O was issued, it has not adequately explained why it could not have raised its claims regarding the need for minimum spectrum efficiency requirements or about the alleged advantages of TDD earlier. Accordingly, we find that grant of the Artemis petition is not warranted under section 1.429(b)(1) because it does not “relate to events which have occurred or circumstances which have changed since the last opportunity to present such matters to the Commission.” Artemis also appears to justify its petition on the grounds that it “could not anticipate the final technical details of the 600 MHz plan until the Incentive Auction R&O was published,” or that “no one could have known that TDD was so highly efficient for high-order multiplexing,” or that it is “new knowledge” that pCell and high-order spatial multiplexing are more efficient with TDD or can achieve LTE-compatible high spectrum efficiency gains. Although it has not explicitly asserted that reconsideration is warranted under section 1.429(b)(2) of our rules, Artemis would not succeed on this claim. Artemis has not demonstrated that the facts underlying its petition could not reasonably have been known prior to our adoption of the Incentive Auction R&O, particularly given that we specifically sought comment on a possible TDD framework (among other band plans) in both the Incentive Auction NPRM and in a Band Plan PN. Furthermore, Artemis has not explained why it lacked the knowledge to file an ex parte with the Commission concerning spectral efficiency after it publicly announced its pCell technology, which was prior to the adoption of the Incentive Auction R&O.

    9. But even if its petition had been appropriately filed at this juncture, we would deny it on alternative and independent grounds because we also find that Artemis has failed to demonstrate that its petition to modify the 600 MHz band plan to allow TDD warrants reconsideration under the public interest prong of the rule. As Mobile Future points out, we already considered whether to adopt a TDD-based framework for the Band Plan, “and chose to adopt an FDD-based plan after the proposal received overwhelming support in the record.” Furthermore, we disagree with Artemis' claim that because we evaluated FDD against TDD “in light of [then] current technology,” Artemis' findings on the spectral efficiencies of its technology compel us to reconsider our decision. Artemis has not established that it is in the public interest to reconsider our decision and modify our FDD Band Plan to allow for TDD-based operation on the description of its technology. Artemis' arguments for adopting a TDD framework for the 600 MHz Band are not independent arguments for the adoption of TDD. Rather, Artemis argues that to achieve high spectral efficiency, carriers must use technology like its technology, which works most effectively with TDD networks. In fact, Artemis admits its technology can work in an FDD environment, just not as efficiently. Furthermore, as we noted above, in deciding on a paired uplink and downlink Band Plan supporting an FDD-based framework, we weighed a number of technical factors, including “current technology, the Band's propagation characteristics, and potential interference issues present in the band,” as well as considering our central goal of allowing market forces to determine the highest and best use of spectrum, our desire to support a simple auction design, and five key policy goals. Further, we declined to allow a mix of TDD and FDD in the 600 MHz Band because it “would require additional guard bands and increase the potential for harmful interference both within and outside the Band.” In arguing that TDD is preferable to FDD, Artemis fails to address the vast majority of the factors we considered in adopting the 600 MHz Band Plan. In short, Artemis has not proven that it is in the public interest to reconsider our 600 MHz Band Plan and grant it the relief it seeks. In its ex parte filing, Artemis raises some additional points to support its arguments. To the extent these are not mere unsupported assertions, we find they are not new arguments, but ones that have already been raised by commenters in the underlying record and already considered in reaching our conclusions in the Incentive Auction R&O.

    10. In addition, we find Artemis has failed to demonstrate that it would be in the public interest to grant its petition for reconsideration to implement spectrum efficiency standards in the 600 MHz Band. We agree with CTIA that for the 600 MHz Band, spectrum efficiency rules “are unprecedented, are not required under the Spectrum Act, and are unnecessary.” The Commission has generally found it unnecessary to implement spectrum efficiency standards for auctioned spectrum bands because the competitive bidding process itself is considered an effective tool for promoting efficient spectrum use. Moreover, consistent with the Spectrum Act's directive, we have adopted “flexible use” service rules for the 600 MHz Band. Flexible use allows licensees to pursue any technology most expedient for achieving their operational goals in responding to marketplace pressures and consumer demand. In mobile broadband spectrum bands similar to the 600 MHz Band where the Commission has followed a policy of “flexible use,” the Commission has not adopted spectrum efficiency standards. Rather, in cases where the Commission has adopted spectrum efficiency standards, it has done so because those spectrum bands were not subject to competitive bidding and/or the licenses granted were non-exclusive, shared spectrum licenses. Indeed, as CTIA notes, the 600 MHz technical rules “are modeled after requirements in other spectrum bands that have allowed spectrum to be put to its highest and best use and promote the public interest . . . [and] have proven highly successful, and there is no basis to depart from this framework in the 600 MHz band.” We agree. We note that, although we do not find it necessary to mandate these requirements, licensees can voluntarily choose to use Artemis' technology or similar technology to improve their spectral efficiency.

    A. Repacking the Broadcast Television Bands 1. Implementing the Statutory Preservation Mandate a. OET-69 and TVStudy

    11. Use of TVStudy. In the Incentive Auction R&O, the Commission adopted the use of TVStudy software and certain modified inputs in applying the methodology described in OET-69 to evaluate the coverage area and population served by television stations in the repacking process. The Affiliates Associations seek reconsideration of those decisions, arguing that the Spectrum Act's reference to the methodology described in OET-69 prohibits the Commission from changing either the implementing software or inputs to the methodology.

    12. In addition, the Affiliates Associations, as well as Cohen, Dippell and Everist, P.C. (“CDE”), complain that the use of TVStudy produces different results than the old software, and that we failed to address in the Incentive Auction R&O potential losses in coverage area. CTIA, in its Opposition, supports the Commission's use of TVStudy to determine coverage area and population served of broadcast stations. We decline to consider at this time the Affiliates Associations' and CDE's requests. The arguments the Affiliates Associations and CDE raise are the subject of a recent decision by the United States Court of Appeals for the DC Circuit. We will take appropriate action regarding these arguments in a subsequent Order.

    13. Vertical Antenna Pattern. When the OET-69 methodology was developed, the regulatory framework for the digital transition of LPTV stations, including Class A stations, had not yet been established. The Commission subsequently amended its rules to allow for use of OET-69 to evaluate Class A stations. In so doing, the Commission determined that the assumed vertical antenna patterns for full power stations in Table 8 of OET-69 were not appropriate for Class A stations because they could underestimate service and interference potential. The Commission adopted an assumption that the downward relative field strengths for digital Class A stations are double the values specified in Table 8 up to a maximum of 1.0. Thus, when processing digital Class A station applications, the Commission doubles the Table 8 values for purposes of predicting interference. In addition, the Commission's rules do not call for the use of any vertical pattern when predicting digital Class A coverage area. This distinction between full power and Class A stations is not reflected in the TVStudy software, which uses the same vertical antenna patterns for Class A and full power stations.

    14. Expanding Opportunities for Broadcasters Coalition (“EOBC”) urges the Commission to revise the vertical antenna pattern inputs for Class A stations in TVStudy to conform to the Commission's rules in order to avoid underestimating the coverage areas of a number of Class A stations. EOBC claims that revising the antenna pattern inputs in TVStudy will eliminate population losses that appear in the TVStudy results when compared with those of the legacy OET software. For example, EOBC indicates that TVStudy shows a 95.7 percent population loss for KSKT-CA which disappears when the correct inputs are used. No other commenters commented on EOBC's request.

    15. We agree with EOBC, and revise the vertical antenna pattern inputs for Class A stations in TVStudy to reflect the same values we use when evaluating Class A license applications. The Commission previously has determined that those vertical antenna pattern settings better represent the performance characteristics of antennas used by Class A stations and, therefore, we conclude that they will enable more accurate modeling of the service and interference potential of those stations during the repacking process. Therefore, TVStudy will use no vertical antenna pattern when calculating Class A stations' protected contours and will double the vertical antenna pattern values included in Table 8 of OET-69 (to a maximum value of 1.0) for calculating interference. We note that our modified approach will reduce or eliminate the differences in results that EOBC observed between TVStudy and tv process, the Media Bureau's application processing software.

    16. Power Floors. TVStudy uses minimum effective radiated power (“ERP”) values, or power floors, to replicate a television station's signal contours when conducting pairwise interference analysis in the repacking process. When TVStudy is used to conduct this analysis, it uses each station's specific technical parameters and a set of default configuration parameters. Its power floor for full power stations is set to one kilowatt for stations on low-VHF channels, 3.2 kilowatts for stations on high-VHF channels, and 50 kilowatts for stations on UHF channels. Similarly, its power floor for Class A digital TV stations is set to 0.07 kilowatts for stations on VHF channels and 0.75 kilowatts for stations on UHF channels. These power floors, which were established for full power stations during the digital television (“DTV”) transition, originally were intended to ensure that all stations would be able to provide service competitively within their respective markets prior to knowing the precise technical details about how their digital television stations would eventually be constructed. In other words, they were set high to protect stations' ability to “grow into” the power level needed to replicate their analog service areas. In comparison, section 73.614 of our rules specifies a power floor of 100 watts for full power stations (our rules do not specify a power floor for Class A stations).

    17. EOBC observes that use of these power floors in TVStudy produces some anomalous results when replicating particular stations' contours on different channels in the context of the pairwise interference analysis. EOBC provides as an example a full power station licensed to operate on channel 18 with an ERP of 1.62 kW. When TVStudy replicates that station's contour on a different channel, it uses a minimum ERP of 50 kW, which makes the station appear more resistant to interference than it actually is. EOBC requests that the Commission either rationalize the use of power floors or eliminate them. No other commenters commented on EOBC's request.

    18. We will reduce the power floors in TVStudy to address the issue raised by EOBC. Specifically, we will reduce the power floors in TVStudy to 100 watts for full power stations and 24 watts for Class A stations. A 100 watt power floor for full power stations accords with our rules. Our rules do not provide for a minimum ERP for Class A stations, but we find that a 24 watt value is reasonable because it represents the lowest ERP of any Class A station currently licensed. We do not anticipate that these lower power floors will reduce our repacking flexibility significantly.

    19. The modified power floors we adopt will allow replication of stations' existing coverage areas on different frequencies without artificially inflating their ERP values. Currently, when it replicates a television station's signal contour on a different channel, TVStudy assigns the station a default ERP value if the value necessary for replication is below the power floor. Because the default value exceeds the value actually required to replicate the station's contour, the use of power floors artificially inflates a station's predicted coverage area in such situations. The result is inaccuracy: The station's signal is predicted to be stronger than it actually would be, so TVStudy predicts coverage in areas that in fact would not receive service, and does not predict interference from undesired signals in other areas. Pursuant to EOBC's request, we adopt modified power floors to correct such inaccuracies.

    20. We decline to adopt EOBC's alternative request to eliminate the use of power floors in TVStudy. Power floors remain necessary with regard to stations presently operating with very low power levels. Otherwise, their assigned ERP values on new frequencies, particularly on lower frequencies, might be unreasonably low. For example, due to differences in signal propagation between VHF and UHF channels, the signal of a UHF station operating with a low power level could be replicated on a VHF channel with a power level of less than 10 watts or even a fraction of a watt. We are concerned that the signals of such stations within their service contours, in the event that they were assigned to new channels, might be so weak as to not be adequately receivable by the stations' existing viewers due to noise and other environmental considerations. Furthermore, if such stations are full power stations, their ERP values would not comply with the minimum specified in our rules.

    b. Preserving Coverage Area

    21. We grant Disney's, Dispatch's, and CDE's requests for reconsideration regarding the preservation of coverage area and affirm that we will make all reasonable efforts to preserve the coverage areas of stations operating pursuant to waivers of HAAT or ERP, provided such facilities are otherwise entitled to protection under the Incentive Auction R&O. We agree with Disney, Dispatch, and CDE that there is no basis to deny a station protection for its existing coverage area in the repacking process merely because its licensed facilities were authorized pursuant to a waiver of our technical rules.

    c. Preserving Population Served

    22. We dismiss Block Stations' Petition for Reconsideration of the approach we adopted. Under Commission rules, if a petition for reconsideration simply repeats arguments that were previously fully considered and rejected in the proceeding, it will not likely warrant reconsideration. We adopted Option 2 in the Incentive Auction R&O based on careful consideration of the record, and of the advantages and disadvantages of each of the options proposed. In particular, we concluded that “Option 2 provides the most protection to television stations' existing populations served consistent with our auction design needs.” We specifically declined to adopt Option 1 because it would not preserve service to existing viewers as of February 22, 2012, and because it would require analysis of interference relationships on an aggregate basis rather than on a pairwise basis. Block Stations provide no basis to revisit our analysis or reconsider our approach.

    2. Facilities To Be Protected a. Stations Affected by the Destruction of the World Trade Center

    23. We grant NBC Telemundo's request that we extend to WNJU the same discretionary repacking protection afforded to other stations affected by the destruction of the World Trade Center. Based on an examination of the record, we find that WNJU is similarly situated to the five other World Trade Center stations for which we already granted discretionary repacking protection. As with the other five stations affected by the destruction of the World Trade Center, we have permitted NBC Telemundo to elect protection by the Pre-Auction Licensing Deadline of either: (1) its licensed Empire State Building facilities or (2) proposed facilities at One World Trade Center. Providing NBC Telemundo with such flexibility will not significantly impact our repacking flexibility.

    b. Pending Channel Substitution Rulemaking Petitions

    24. We deny the Bonten/Raycom and Media General Petitions. Petitioners claim that Congress intended for the Commission to grant the pending VHF-to-UHF petitions, but as we explained in the Incentive Auction R&O, the language in section 1452(g)(1)(B) is permissive. Section 1452(g)(1)(B) allows the Commission to reassign a licensee from VHF to UHF if either of the two statutory conditions in this provision is met, but it does not mandate such reassignment. If Congress intended to remove our discretion and require us to grant the pending VHF-to-UHF petitions, it would have explicitly provided that the Commission “shall” reassign a licensee from VHF to UHF “if” a request for reassignment was pending on May 31, 2011. Petitioners offer no basis to revisit our interpretation.

    25. We disagree with petitioners' claims that the Commission disregarded the public interest benefits that would result from protecting the facilities requested in the pending petitions and overstated the impact on repacking flexibility. As we explained in the Incentive Auction R&O, the exercise of discretion to protect facilities beyond those required by the Spectrum Act requires a careful balancing of numerous factors. We applied those factors and found that there were minimal equities in favor of protecting the facilities requested because the petitioners had not acted in reliance on Commission grants, had not made any investment in constructing their requested facilities, and had not begun operating the proposed facilities to provide service to viewers. On the other hand, we explained that protecting the requested facilities would add new stations to the UHF Band and thereby encumber additional UHF spectrum. Petitioners offer no basis to alter this balancing. While they claim that the number of pending petitions is minimal and speculate that this will not “significant[ly] effect” repacking, they fail to acknowledge the minimal equities in favor of protecting proposed facilities that have not been constructed and are not serving viewers.

    26. Petitioners claim further that we should have weighed the benefits to the public of restoring over-the-air service to pre-DTV transition viewers that would purportedly result from their channel substitution requests. Declining to protect petitioners' proposed facilities in the repacking process, however, does not preclude grant of their petitions after conclusion of the repacking process. Despite petitioners' claim, we did not direct the Media Bureau to “summarily dismiss” the pending petitions without public comment. Rather, we directed the Media Bureau to dismiss any of these petitions for which issuance of an NPRM would not be appropriate, such as “if the proposed facility would result in an impermissible loss of existing service” or “the petition fails to make a showing as to why a channel change would serve the public interest.” Dismissal of channel substitution petitions without issuing an NPRM under such circumstances is consistent with past Bureau practice. For petitions that are not dismissed, we directed the Media Bureau to hold them in abeyance, rather than granting them now but leaving them unprotected in the repacking process. Petitioners do not dispute our conclusion that allowing VHF stations to move their existing service into the UHF Band on an unprotected basis pending the outcome of the repacking process presents a significant potential for viewer disruption if the station's operations in the UHF Band are displaced.

    27. We agree with petitioners that we could protect the requested facilities but preclude them from submitting UHF-to-VHF bids in the reverse auction, but this does not change our ultimate conclusion. Imposing such a condition would prevent the stations from demanding a share of incentive auction proceeds in exchange for relinquishing their newly granted rights, but would not mitigate the detrimental impact on our repacking flexibility of granting protection to the requested facilities. The detrimental impact protecting the proposed facilities would have on our repacking flexibility and fulfillment of auction goals outweighs the minimal equities in favor of protection.

    28. We also disagree with petitioners that their requests are similarly situated to the two VHF-to-UHF petitions that were filed before the Media Bureau's May 31, 2011 freeze, both of which resulted in an NPRM after that date, and were subsequently granted. As explained in the Incentive Auction R&O, the granted petitions involved materially different facts. In one case, the station's tower collapsed, a fact that does not apply to the petitioners. In the other case, the change to a UHF channel resulted in a significant population gain, a fact that likewise does not apply to the petitioners. Moreover, the granted petitions explained why expedited consideration was needed, whereas the petitioners failed to provide a timely explanation of such need. In addition, the granted petitions were granted before the Spectrum Act was passed. In contrast, further action on the pending petitions required consideration of a number of new issues raised by the statute, including issues that the Commission was considering in the pending rulemaking proceeding. Bonten/Raycom assert that the same considerations applied both before and after passage of the Spectrum Act because the Commission was aware that Congress was considering incentive auction legislation when the Media Bureau granted the two VHF-to-UHF petitions. At the time the Media Bureau acted on the two petitions, however, it was unknown whether or when Congress would pass legislation providing for an incentive auction, and there was no basis to predict that any future legislation would specifically address the pending VHF-to-UHF petitions.

    29. We also reject petitioners' claim that refraining from processing the pending petitions amounts to a retroactive freeze without notice. The May 31, 2011 freeze was issued at the Bureau level, and the Media Bureau's statement that it would “continue its processing of [channel substitution] rulemaking petitions that are already on file” is not binding on the Commission. In any event, the Bureau's statement was made before enactment of the Spectrum Act. To the extent the petitioners relied on the Bureau's freeze as entitling them to move into the UHF Band, such reliance was misplaced in light of Congress's subsequent passage of the Spectrum Act, which seeks to repurpose UHF spectrum for new uses and specifically addresses the pending VHF-to-UHF petitions. Indeed, despite the Media Bureau's statements in its May 31, 2011 freeze Public Notice, the Commission in the 2012 Incentive Auction NPRM analyzed section 1452(g)(1)(B) and put the pending VHF-to-UHF petitioners on notice that it proposed to refrain from acting on their petitions.

    c. Out-of-Core Class A-Eligible LPTV Stations

    30. Background. The Community Broadcasters Protection Act of 1999 (“CBPA”) provided certain qualifying LPTV stations with “primary” Class A status. The CBPA provided for a two-step process for obtaining a Class A license. First, by January 28, 2000, an LPTV licensee seeking Class A status was required to file a certification of eligibility certifying compliance with certain criteria. If the Commission granted the certification, the licensee's station became a “Class A-eligible LPTV station.” Second, a Class A-eligible LPTV station was required to file an application for a Class A license. While the CBPA prohibited the Commission from granting Class A status to LPTV stations operating on “out-of-core” channels (channels 52-69), it provided such stations with an opportunity to achieve Class A status on an in-core channel (channels 2-51).

    31. Although the Commission's rules implementing the CBPA were adopted in 2000, we explained in the Incentive Auction R&O that approximately 100 formerly out-of-core Class A-eligible LPTV stations had obtained an in-core channel but had not obtained a Class A license as of February 22, 2012. We determined that such stations are not entitled to mandatory preservation. We explained that the fact that such stations may obtain a Class A license after February 22, 2012 does not alter this conclusion because section 1452(b)(2) of the Spectrum Act mandates preservation of only the full power and Class A facilities that were actually in operation as of February 22, 2012. With one exception—KHTV-CD, Los Angeles, California—we also declined to exercise discretionary protection to preserve the facilities of such stations.

    32. Abacus Television (“Abacus”) and The Videohouse, Inc. (“Videohouse”), the licensees of formerly out-of-core Class A-eligible LPTV stations that filed for and received Class A licenses after February 22, 2012, seek reconsideration of our decision not to protect Class A-eligible LPTV stations that did not hold Class A licenses as of February 22, 2012. They argue that they are entitled to preservation under the CBPA. They further claim that they are similarly situated to KHTV-CD, insofar as they have also allegedly taken steps to remove their secondary status in a timely manner, and therefore should be extended discretionary protection. Moreover, they argue that they are similarly situated to other stations the Commission elected to protect in the repacking process. In late-filed pleadings, the LPTV Spectrum Rights Coalition (“LPTV Coalition”) and Abacus dispute the number of formerly out-of-core Class A-eligible LPTV stations that did not hold Class A licenses as of February 22, 2012.

    33. Discussion. For reasons set forth below, we dismiss and otherwise deny the Abacus and Videohouse petitions. Asiavision, Inc. (“Asiavision”) and Latina Broadcasters of Daytona Beach, LLC (“Latina”) did not file timely Petitions for Reconsideration of the Incentive Auction R&O. Rather, in Oppositions, they present arguments similar to those raised in the Abacus and Videohouse Petitions as to why the Commission should have decided in the Incentive Auction R&O to protect their stations in the repacking process. We treat these pleadings as late-filed petitions for reconsideration and dismiss them. Asiavision and Latina did not seek a waiver of the deadline for seeking reconsideration. Moreover, to the extent Asiavision and Latina argue that the Commission should treat all similarly situated Class A stations the same if the Abacus and Videohouse Petitions are granted, their arguments are moot in light of our dismissal and denial of the Abacus and Videohouse Petitions. We will nonetheless treat these pleadings as informal comments. As an initial manner, petitioners offer no basis to revisit our conclusion that section 1452(b)(2) mandates preservation of only full power and Class A facilities that were actually in operation as of February 22, 2012. The only Class A facilities in operation as of February 22, 2012 were those that were licensed as Class A facilities on that date or were the subject of an application for a license to cover a Class A facility. The license to cover application signifies that the Class A-eligible LPTV station had constructed its facility and was operating consistent with the requirements applicable to Class A stations. We note that some Class A-eligible LPTV stations filed prior to February 22, 2012 an application to convert an LPTV construction permit to a Class A construction permit. We refer to this application below as a “Class A construction permit application.” We clarify that a Class A-eligible LPTV station with an application for a Class A construction permit on file or granted as of February 22, 2012 is not entitled to mandatory protection. An application for a Class A construction permit seeks protection of facilities authorized in an LPTV construction permit. Grant of a construction permit standing alone, however, does not authorize operation of those facilities. Nonetheless, for the reasons discussed below, we exercise discretion to protect those stations that hold a Class A license today and that had an application for a Class A construction permit pending or granted as of February 22, 2012.

    34. Petitioners do not dispute that, on February 22, 2012, they were not Class A licensees nor did they have an application for a license to cover a Class A facility on file, and thus are not entitled to mandatory preservation. In declining to exercise discretionary protection for such stations, we explained that there were approximately 100 stations in this category and that protecting them would increase the number of constraints on the repacking process, thereby limiting our repacking flexibility. In late-filed pleadings, the LPTV Coalition and Abacus dispute the number of stations in this category. As an initial matter, we dismiss these filings as late-filed petitions for reconsideration, but will treat them as informal comments. The number of formerly out-of-core Class A-eligible LPTV stations that had not filed an application for a license to cover a Class A facility as of February 22, 2012 was readily available via CDBS station records before the deadline for filing Petitions for Reconsideration. Thus, there were no extraordinary circumstances precluding parties from presenting their arguments in a timely fashion. Accordingly, we deny Abacus's Petition for Leave to File Supplemental Reconsideration and the LPTV Coalition's Petition for Leave to Amend. We affirm the statement in the Incentive Auction R&O that there are approximately 100 formerly out-of-core Class A-Eligible LPTV stations that had not filed an application for a license to cover a Class A facility as of February 22, 2012. While the LPTV Coalition asserts that they have not been provided with a list of such stations, the stations falling in this category can be identified using the Consolidated Database System (“CDBS”). Parties have provided no data or analysis undermining our findings on the number of stations in this category.

    35. We also reject on alternative and independent grounds petitioners' claims that they are entitled to protection under the CBPA. As an initial matter, petitioners' claims are late. To the extent they believe they were entitled to issuance of a Class A license when they were assigned in-core channels, they should have objected several years ago when the Media Bureau issued their in-core construction permits without also issuing a Class A license. In any event, we reject petitioners' view. While petitioners note that the CBPA required the Commission to issue Class A licenses to out-of-core Class A-eligible LPTV stations “simultaneously” upon assignment of their in-core channels, in order to effectuate this requirement, such stations were “require[d] . . . to file a Class A application simultaneously” with an application for an in-core construction permit. When petitioners filed for construction permits to move to in-core channels, however, they did not file an application for a Class A license or a Class A construction permit. Rather, it was not until January 2013 when petitioners first filed applications for a Class A authorization (i.e., either a Class A license or Class A permit), after they were assigned to in-core channels and after the enactment of the Spectrum Act. Under petitioners' view, the CBPA required the Commission to issue a Class A license when it assigned petitioners in-core channels, even though they had not yet submitted applications for a Class A authorization (either a license or permit). Yet the CBPA provides that the Commission shall issue a Class A license to an “applicant for a class A license” that is assigned a channel within the core, thereby requiring the station to have an application on file. Moreover, petitioners' view runs afoul of the Communications Act and the CBPA, both of which require the filing of an application before the Commission may issue a license.

    36. Petitioners also note language from the Class A R&O stating that the Commission “will not impose any time limit on the filing of a Class A application by LPTV licensees operating on channels outside the core.” This language declines to impose a deadline on the simultaneous filing of applications for an in-core LPTV construction permit and a Class A authorization. It does not endorse the filing of an application for a Class A authorization after filing an application for an in-core construction permit. As noted in the Incentive Auction R&O, the Media Bureau did grant the applications of some stations that filed applications for Class A authorizations after applying for or obtaining an in-core construction permit if otherwise consistent with the Commission's rules. As a general matter, however, stations that refrained from applying for a Class A authorization until after applying for or obtaining an in-core construction permit are not eligible for the simultaneous grant of a Class A authorization along with the grant of their in-core LPTV construction permit.

    37. While petitioners note that the CBPA requires the Commission to “preserve the service areas of low-power television licensees pending the final resolution of a class A application,” this provision applies only “pending the final resolution of a class A application.” Petitioners, however, did not have applications for Class A licenses or Class A permits that were “pending . . . final resolution” on February 22, 2012, thus this provision of the CBPA does not apply.

    38. Petitioners also note language from the Class A R&O in which the Commission stated that it would “commence contour protection for [out-of-core stations] upon issuance of a construction permit for an in-core channel.” This language clarified that protection of a station's contour would not have to wait until the filing of an application for “a license to cover construction” of the in-core channel. To implement this approach, the Media Bureau required an out-of-core Class A eligible LPTV station to file an FCC Form 346 for a construction permit for an in-core LPTV facility and, at the same time, an FCC Form 302-CA for a Class a construction permit. When petitioners filed an FCC Form 346, however, they did not file the FCC Form 302-CA and thus were not entitled to contour protection.

    39. Petitioners further claim that they are similarly situated to KHTV-CD, a formerly out-of-core Class A-Eligible LPTV station that filed an application for a license to cover a Class A facility after February 22, 2012 but to which we extended discretionary protection. As an initial matter, we dismiss petitioners' arguments on procedural grounds. The Incentive Auction NPRM squarely raised the question of which facilities to protect in the repacking process, proposing to interpret the Spectrum Act as mandating preservation only of full-power and Class A facilities that were licensed, or for which an application for license to cover was on file, as of February 22, 2012. Recognizing that it was not a Class A licensee as of February 22, 2012, KHTV-CD put forth in response to the Incentive Auction NPRM evidence demonstrating why it should be afforded discretionary protection. Like KHTV-CD, petitioners were not Class A licensees as of February 22, 2012. Unlike KHTV-CD, however, petitioners did not attempt to demonstrate in response to the Incentive Auction NPRM why they should be afforded discretionary protection. Rather, on reconsideration, petitioners for the first time attempt to explain why they also should be extended discretionary protection. They have not shown, however, why they were unable to raise these facts and arguments before adoption of the Incentive Auction R&O. Indeed, all of the evidence put forth by petitioners, including the date when they were granted a Class A license, preceded adoption of the Incentive Auction R&O. Accordingly, we dismiss petitioners' claims that they are entitled to discretionary protection because they rely on facts and arguments not presented to the Commission before the Incentive Auction R&O was adopted and petitioners have not attempted to demonstrate compliance with the exceptions for such filings found in section 1.429(b) of our rules.

    40. As an alternative and independent ground, we deny petitioners' claims that they are similarly situated to KHTV-CD. First, as described in the Incentive Auction R&O, KHTV-CD filed an application for a license to cover its Class A facility just two days after enactment of the Spectrum Act on February 22, 2012. By contrast, despite receiving in-core construction permits in 2009 (Videohouse) and 2012 (Abacus), petitioners did not file applications for licenses to cover their Class A facilities until January 2013, almost a year after enactment of the Spectrum Act. Second, KHTV-CD documented repeated efforts over the course of a decade to locate an in-core channel and convert to Class A status, including filing in July 2001 an initial application for a license to cover a Class A facility. By contrast, petitioners do not document any efforts to locate an in-core channel before 2009, almost a decade after passage of the CBPA. Third, beginning in 2001, KHTV-CD had either an application for a license to cover a Class A facility or an application for a Class A construction permit on file with the Commission in which it certified that it was meeting, and would continue to meet, all Class A operating requirements and applicable full power requirements. By contrast, petitioners did not make these certifications in an application filed with the Commission until January 2013. Petitioners vaguely assert that their service includes “locally produced, locally originated programming,” but, unlike KHTV-CD, they do not state, nor did they certify in an application filed with the Commission before January 2013, that they were meeting and would continue to meet, all Class A operating requirements and applicable full power requirements.

    41. We also reject petitioners' claim that they are similarly situated to stations in other categories the Commission elected to protect in the repacking process. As an initial matter, with the exception of new full power stations not licensed as of February 22, 2012, all of the stations in these categories were full-power or Class A licensees as of February 22, 2012 and thus entitled to mandatory preservation, unlike petitioners, who remained LPTV licensees as of February 22, 2012. In the Incentive Auction R&O, we exercised discretion to protect certain modifications of these licensed full-power or Class A facilities because the impact on repacking flexibility would be minimal while, on the other hand, there were significant equities in favor of preservation. We explained why the balance was different for formerly out-of-core Class A-eligible LPTV stations that had not filed applications for licenses to cover Class A facilities as of February 22, 2012. Petitioners offer no basis to revisit this balance.

    42. Based on examination of the record, we will exercise discretion to protect stations in addition to KHTV-CD that hold a Class A license today and that had an application for a Class A construction permit pending or granted as of February 22, 2012. We find that there are significant equities in favor of protection of these stations that outweigh the limited adverse impact on our repacking flexibility. By filing an application for a Class A construction permit prior to February 22, 2012, each of these stations documented efforts prior to passage of the Spectrum Act to remove their secondary status and avail themselves of Class A status. Under the Commission's rules, these stations were required to make the same certifications as if they had applied for a license to cover a Class A facility. Among other things, each was required to certify that it “does, and will continue to, broadcast” a minimum of 18 hours per day and an average of at least three hours per week of local programming and that it complied with requirements applicable to full-power stations that apply to Class A stations. Thus, prior to the enactment of the Spectrum Act, such stations had certified in an application filed with the Commission that they were operating like Class A stations. In addition, the licensees of these stations may not have known that the stations were not entitled to mandatory protection under the Spectrum Act. By contrast, as noted above, petitioners did not certify continuing compliance with Class A requirements in an application filed with the Commission until after the enactment of the Spectrum Act, and they had no justification for not seeking discretionary protection in response to the Incentive Auction NPRM.

    43. As requested by the LPTV Coalition, we clarify certain issues pertaining to those Class A stations that will not be protected in the repacking process. First, as explained in the Incentive Auction R&O, if such a station is displaced in the repacking process, it may file a displacement application during one of the filing opportunities for alternate channels. The Media Bureau has delegated authority to determine whether such stations should be permitted to file for a new channel along with priority stations or during the second filing opportunity. Second, such Class A stations are not eligible to participate in the reverse auction and thus may not submit channel sharing bids. We have recently proposed, however, to allow Class A stations to channel share outside of the auction context. Third, such stations are not eligible to receive reimbursement for relocation costs. The reimbursement mandate set forth in section 1452(b)(4) applies only to full power and Class A television licensees that are involuntarily “reassigned” to new channels in the repacking process pursuant to section 1452(b)(1)(B)(i). The unprotected Class A stations will not be protected in the repacking process, and thus will be not “reassigned under [section 1452(b)(1)(B)(i)]” as required to fall within section 1452(b)(4).

    d. LPTV and TV Translator Stations (i) Repacking Protection

    44. We deny ATBA's, Mako's, and USTV's requests. ATBA's request is incompatible with our auction design: granting it would compromise the basic auction design principle of speed, which “is critical to the successful implementation of the incentive auction.” In addition, channel assignments will be provisional until the final TV channel assignment plan is established after the final stage rule is satisfied, so the analysis ATBA advocates during the reverse auction bidding process would not be useful in assessing the potential impact on LPTV service.

    45. Moreover, we cannot conclude that we must further analyze the potential impact of the incentive auction on the LPTV service before conducting the repacking process. As we explained in the Incentive Auction R&O, the Spectrum Act does not require protection of LPTV stations, which always have been subject to displacement by primary services. Although we have limited discretion to extend repacking protection beyond the requirements of the statute, we have done so only with respect to the facilities of “broadcast television licensees” as defined in the Spectrum Act, that is, full-power or Class A stations. Based on careful consideration of the factors relevant to our exercise of discretion, we declined to extend repacking protection to LPTV stations. Accordingly, we deny Free Access' claim that, for a given PEA, we cannot repurpose more spectrum than is vacant before the reverse auction or than is relinquished in the reverse auction, until all LPTV and translator stations are relocated. Such an approach would require protection of LPTV stations in the repacking process, which we decline to do for the reasons stated above and in the Incentive Auction R&O. Moreover, despite Free Access' claims, we have already rejected the argument that LPTV stations' spectrum usage rights are protected from taking by the Fifth Amendment. Nevertheless, recognizing the important services provided by the LPTV stations, we adopted a number of measures to mitigate the potential impact of the repacking process on LPTV stations, and initiated a separate proceeding to consider additional measures. In short, we have taken into consideration the potential impact of the repacking process on LPTV stations in this proceeding, and are not required to conduct additional analysis. For the same reasons, we reject ATBA's suggestion that we must consider the potential impact of LPTV displacement on the diversity of broadcast voices before carrying out the incentive auction. LPTV and TV translator stations have always been at risk of displacement by primary services, yet Congress provided specifically that the Spectrum Act does not alter that risk.

    46. We also disagree with Mako that our decision not to protect LPTV and TV translator stations in the repacking process “altered” LPTV and TV translator stations' spectrum usage rights in contravention of section 1452(b)(5). As explained in the Vacant Channel NPRM, we interpret section 1452(b)(5) as a rule of statutory construction, not a limit on the Commission's authority. In any event, LPTV and TV translator stations have always operated on a secondary basis with respect to primary licensees, which may be authorized and operated without regard to existing or proposed LPTV and TV translators. Any LPTV displacement as a result of the incentive auction, therefore, does not “alter the spectrum usage rights of low power television stations.” Mako counters that this is the first time that the LPTV industry “will be subject to losing their station licenses.” However, LPTV stations have always operated in an environment where they could be displaced from their operating channel by a primary user and, if no new channel assignment is available, forced to go silent. The potential impact of the repacking process is no different.

    47. We also disagree with Mako that displacement of an LPTV or TV translator station is a “revocation” requiring an order to show cause and a hearing. Displacement does not “revoke” LPTV or TV translator licenses for purposes of section 312 of the Act because it does not require termination of operations or relinquishment of spectrum usage rights; displacement requires only that LPTV and TV translator stations vacate the channel on which they are operating. Indeed, displacement is not even a license modification, as LPTV and TV translator stations may be displaced by primary services at any time.

    48. We also disagree with Mako's argument that the Commission's conclusion that the CBPA does not protect LPTV and TV translator stations vis-à-vis Class A stations during the repacking process cannot be justified based on the CBPA's “fail[ure] to `anticipate' a broadcast television incentive auction would be held at some future point.” This argument is based on a misreading of the Incentive Auction R&O. Our statutory interpretation in the Incentive Auction R&O was based on the fact section 336(f)(7)(B) “grants LPTV and TV translator stations protection against changes to facilities proposed by Class A licenses,” whereas channel reassignments in the repacking process will be carried out by the Commission; Class A licensees will neither initiate such reassignments nor have the right to protest the resulting license modifications. Our interpretation of the statutory language was not based on the fact that Congress could not have anticipated the incentive auction and the repacking process when it enacted the CBPA in 1999. Nevertheless, we note that our interpretation harmonizes the two statutes in a way that Mako's fails to do: reading section 336(f)(7)(B) to require the Commission to protect LPTV and TV translator stations vis-à-vis Class A stations would create tension with the statutory preservation mandate of section 1452(b)(2), which directs the Commission to make all reasonable efforts to preserve the coverage area and population served of Class A stations, not LPTV or TV translator stations.

    49. Finally, we also disagree with USTV that “the FCC clearly erred when it failed to protect stations that Congress identified in the Digital Data Services Act (DDSA) for its LPTV data pilot project.” In the DDSA, Congress created a project to allow 13 LPTV stations to begin operating with digital facilities prior to the adoption of digital rules for the low power television services. USTV maintains that Congress “clearly expressed its intention that the 13 stations identified in the DDSA should be permitted to operate so that they can introduce digital data services on low-power TV spectrum.” USTV further argues that “the Spectrum Act did not repeal the DDSA or give the FCC authority to abrogate or ignore its provisions.” Contrary to USTV's argument, stations authorized to operate under the terms of the DDSA remain secondary in nature under the Commission's rules, and nothing in the DDSA, the Commission's order implementing the DDSA, the Commission's rules, or the Spectrum Act mandates that DDSA stations be protected in the repacking process. Furthermore, as USTV points out, the pilot program never materialized, and there are no stations that are currently operating under the program to qualify even if we were to decide to extend discretionary protection to them.

    (ii) Measures To Assist LPTV and TV Translators

    50. We decline to grant ATBA's request that we reconsider our decision not to allow displaced LPTV stations to operate with alternative technical standards and non-broadcast type facilities. Although we are sympathetic to the objectives and concerns cited by ATBA and WatchTV, grant of ATBA's request would require the creation of new technical standards that, in turn, would require in-depth analysis and complete overhaul of the existing LPTV rules and policies. We conclude that such a supplementary project is infeasible in the incentive auction proceeding. We believe that ATBA's request is appropriately addressed in the rulemaking in MB Docket No. 03-185 that we initiated to address the potential impact of the incentive auction and the repacking process on the LPTV service. Indeed, we invited parties to raise such matters in that proceeding and many commenters have raised this issue there.

    51. We affirm our decision to grant a processing priority to displacement applications for DRTs. As we found in the Incentive Auction R&O, replacement translators are still an important tool for full power stations to replace service lost in the digital transition. Contrary to WatchTV's assertion, DTS may not work in all cases and digital TV boosters are not authorized by the rules. For these reasons, to ensure that television stations are able to restore service from DRT facilities that are displaced in the repacking process, we affirm our decision to give displacement applications for DRTs a displacement priority.

    52. In addition, we reject USTV's contention that we should have provided a displacement priority for the 13 LPTV stations. As indicated above, nothing in the DDSA or the Spectrum Act mandates priority treatment of DDSA stations in the repacking process, and the same applies to the post-auction transition. Moreover, there are no stations operating in the pilot program to qualify for such a priority even if we were to provide one.

    e. Other Issues

    53. We dismiss and, on alternative and independent grounds, deny the ALF and Beach TV Petitions. As an initial matter, we dismiss the Petitions on procedural grounds. The Incentive Auction NPRM squarely raised the question of which facilities to protect in the repacking process and which stations would be eligible to participate in the reverse auction. On reconsideration, petitioners for the first time attempt to explain why they should be protected in the repacking process or allowed to participate in the reverse auction. They have not shown, however, why they were unable to raise these facts and arguments before adoption of the Incentive Auction R&O. Indeed, the evidence put forth by petitioners precedes the adoption of the Incentive Auction R&O. Accordingly, we dismiss the Petitions because they rely on facts and arguments not presented to the Commission before the Incentive Auction R&O was issued and petitioners have not attempted to demonstrate compliance with the exceptions for such filings found in section 1.429(b) of our rules.

    54. As an alternative and independent ground, we deny the Petitions because neither petitioner is a “broadcast television licensee” entitled to mandatory protection in the repacking process or eligible to participate in the reverse auction. Beach TV is the licensee of an LPTV station that has never filed an application for a Class A license. ALF is a mere applicant for a new full power television construction permit. While we determined that full power or Class A licensees that are the subject of non-final license validity proceedings or downgrade orders will be protected in the repacking process, and may participate in the reverse auction until the proceeding or order becomes final and non-reviewable, this treatment applies to stations that previously held full power or Class A licenses. Beach TV and ALF have never held such licenses. We reject ALF's claim that excluding it from the reverse auction denies it due process. To the extent that ALF believed there was unreasonable delay at any stage in the processing of its application, it had the opportunity to file a petition for writ of mandamus to compel agency action.

    55. We also dismiss Beach TV's request that we protect it in the repacking process as a matter of discretion. We explained in the Incentive Auction R&O the reasons for declining to extend discretionary protection to LPTV stations, such as Beach TV. As discussed above, we affirm that decision. In addition, as we stated above, we extended discretionary protection only to otherwise eligible “broadcast television licensees,” i.e., full power and licensed Class A stations. Moreover, despite its claim, Beach TV is unlike KHTV-CD, a formerly out-of-core Class A-eligible LPTV station that we elected to protect in the repacking process. Unlike Beach TV, KHTV-CD's eligibility for Class A status has never been in doubt and it holds a Class A license. Moreover, unlike Beach TV, KHTV-CD documented repeated efforts over the course of a decade to locate an in-core channel and convert to Class A status.

    3. International Coordination

    56. We deny the requests for reconsideration by Affiliates Associations, Gannett, ATBA, Block, and CDE as they relate to international coordination. We must, of course, take Canadian and Mexican stations into account in determining the assignment of channels particularly in U.S. markets along the borders, but completion of border coordination is not a precondition to repacking as either a legal or practical matter. International coordination is an ongoing process which by its nature involves negotiation with sovereign nations whose actions the FCC does not control. The Commission is familiar with matters of international coordination, having dealt with similar issues every time it auctions new spectrum licenses. The Spectrum Act affords the FCC discretion regarding how to implement the coordination process, including the timing of that process. As CTIA points out, therefore, we reasonably interpreted the Spectrum Act as not imposing a temporal requirement on international coordination. Because we fully considered and rejected in the Incentive Auction R&O the arguments of Affiliates Associations and ATBA that the language of the Spectrum Act should be interpreted as requiring the Commission to complete international coordination prior to the auction or the repacking process, we dismiss these arguments on procedural grounds. Block Stations' request that we reconsider our statutory interpretation because the Spectrum Act does not require that the incentive auction be conducted right away lacks merit: delay in our schedule for conducting the incentive auction is not necessary and would disserve the public interest.

    57. We disagree with NAB that, if international coordination is not completed in advance of the auction, stations in border areas risk being forced to go dark. As discussed below, we expect to reach timely arrangements with Canada and Mexico that will enable us to carry out the repacking process in an efficient manner that is fully consistent with the requirements of the statute and our goals for the auction. As we explained in the Incentive Auction R&O, however, all that is required as a practical matter in order to carry out the repacking process in the border areas is a mutual understanding with Canada and Mexico as to how the repacking process in the U.S. will be conducted to protect border stations in all countries from interference, and the requisite information about the location and operating parameters of Canadian and Mexican stations that affect the assignment of television channels in the U.S. The mutual understanding that we anticipate reaching with Canada and Mexico regarding the technical criteria to be used in repacking will enable us to secure timely approval of individual channel assignments for U.S. stations after the auction. Accordingly, we are not persuaded that stations in border areas are at risk of going dark if coordination is not complete. In the unlikely event that a border station has not been able to complete construction on its new channel assignment by the end of the 36-month construction period, that station may request authorization to operate on temporary facilities as provided in the Incentive Auction R&O. We will make every reasonable effort to accommodate such requests.

    58. We also reject the other arguments of Affiliates Associations, CDE, and NAB regarding border stations. We are not persuaded that border stations face an unfair risk of being deprived of the opportunity for reimbursement in the event that the FCC cannot complete coordination prior to the incentive auction and the repacking process. In the event that international coordination is not completed prior to the commencement of the incentive auction, the reimbursement process we adopted in the Incentive Auction R&O will facilitate a smooth transition for border stations that provides a fair opportunity to obtain reimbursement. We fully intend to make initial allocations quickly to help broadcasters initiate the relocation process. If cases occur in which a broadcaster's move to a new channel is delayed because of international coordination, the delay need not jeopardize reimbursement. We expressly provided broadcasters the opportunity to receive initial allocations based on estimated reimbursement costs. We also afforded stations the flexibility to update their cost estimates if they experience a change in circumstances during the reimbursement period. Moreover, our process recognizes that construction for certain stations may run up against the end of the 36-month reimbursement period and therefore includes a final allocation, to be made based on actual costs incurred by a date prior to the end of the three-year period, in addition to a station's estimated expenses through the end of construction. For any relocating station, this final allocation will occur during the statutory reimbursement period, even if construction is not complete until after the end of the three-year reimbursement period. We believe this process will provide sufficient flexibility for any stations that encounter difficulties constructing new facilities located along the borders with Mexico and Canada. We explain in Section IV.C infra how the reimbursement process is designed to address problems or delays that may arise for stations in the post-auction transition process.

    59. While we regard the confidentiality of the ongoing government-to-government incentive auction coordination discussions as critical to their ultimate success, there are indications that our ongoing coordination efforts are advancing our goal to reach mutual spectrum reconfiguration arrangements with Canada in a manner that is fully consistent with our statutory mandate and our goals for the auction. We note that on December 18, 2014, Industry Canada initiated a consultation (similar to a Notice of Proposed Rulemaking) that proposes a joint reconfiguration of the 600 MHz Band for mobile use. The Industry Canada consultation proposed to adopt the U.S. 600 MHz Band Plan framework and to commit to repurposing the same amount of spectrum as the U.S., as determined in the FCC's incentive auction. Moreover, Industry Canada's consultation also expressly states that Canada would have to make a decision on the harmonized band plan before the incentive auction in the U.S. The Industry Canada consultation also proposes harmonizing Canada's approach for developing a TV allotment plan with that of the U.S. It also recognizes the mutual benefits of a joint repacking that takes into consideration broadcasters on both sides of the border and ensures maximum benefits with minimum disruption of broadcast services, resulting in a more efficient reassignment of broadcasting channels and more spectrum being made available for mobile services in both countries. In light of the consultation, we anticipate that our coordination efforts will culminate in an arrangement that captures the mutual benefits to Canada and the U.S. of a harmonized 600 MHz Band Plan approach that will repurpose the spectrum for mobile broadband services and optimize television channel placement on both sides of the border.

    60. FCC staff also continues to collaborate closely with Mexico's Instituto Federal de Telecomunicaciones (IFT) on attaining a spectrum reconfiguration arrangement that would incorporate unified objectives regarding spectrum allocation and accommodate television broadcast and wireless services along the common border. As part of Mexico's constitutional reforms adopted in 2012, IFT is committed to completion of Mexico's DTV transition by the end of 2015. The FCC and IFT, through the established coordination process, are assigning Mexican DTV channels below channel 37 to the extent possible while also providing channels for the FCC to use in repacking. Considering the efforts and progress made by both Administrations towards developing a comprehensive solution that involves the best and future use of current television spectrum, we anticipate the eventual completion of an arrangement with Mexico that will enable us to carry out the repacking process in a manner fully consistent with the requirements of the statute and our goals for the auction. In any event, prior to the start of the incentive auction, we will release information regarding the Mexican stations and allotments that will need to be protected in the repacking.

    61. Finally, we reject ATBA's requests for reconsideration with regard to LPTV stations in the border areas. Contrary to ATBA's argument, the Spectrum Act places no special limits on displacement of LPTV licensees in border areas. ATBA notes that section 1452(b)(1)(B)(i) provides that the Commission may, subject to international coordination, make “reassignments” of “television channels,” and argues that “television channels” should be read broadly to include LPTV stations. We reject this argument. As an initial matter, nothing in section 1452(b) “shall be construed to alter the spectrum usage rights of [LPTV] stations,” which as we have explained have never included protection from displacement by primary services. Moreover, while section 1452(b)(1)(B)(i) refers to the Commission's “reassignment” of “television channels,” the Commission will not be “reassign[ing]” the television channels of LPTV stations. Rather, LPTV stations may be displaced when broadcasters begin operations on their new channels post-repacking and required to locate new channels, but they will not be “reassigned” as that term is used in the Spectrum Act. Further, ATBA's concern regarding the risk of LPTV stations being subject to “double-displacement and double-builds” is ill-founded. Our post-auction coordination process for relocating stations will require Canada's or Mexico's concurrence before the Media Bureau issues a construction permit. Once a channel assignment has been coordinated with Canada or Mexico, it is unlikely that the relocating station will be subjected to another coordination.

    B. Unlicensed Operations 1. Television Bands

    62. We dismiss Free Access' request. In the Incentive Auction R&O, the Commission indicated that it intended, following notice and comment, to designate one unused television channel following the repacking process for shared use by unlicensed devices and wireless microphones. The Commission stated that it sought to strike a balance between the interests of all users of the television bands, including the secondary broadcast stations and white space device operators, for access to the UHF TV spectrum. As indicated in the Incentive Auction R&O, the final decision on preserving one such television channel, and precisely how to do so, would follow additional notice and comment. Accordingly, we dismiss Free Access' challenge of the Commission's action on this issue in the Incentive Auction R&O given the absence of a final decision. On June 11, 2015, the Commission adopted the Vacant Channel NPRM proposing to take action to preserve a vacant television channel, following the repacking process, for use by both unlicensed white space devices and wireless microphones. This proceeding provides Free Access with an opportunity to express its concerns to the Commission on the proposal to preserve a television channel for use by unlicensed white space devices as well as wireless microphones.

    2. Guard Bands and Duplex Gap

    63. We deny Qualcomm's request to reconsider the Commission's decision in the Incentive Auction R&O to permit unlicensed white space devices to operate in the guard bands and duplex gap. The Commission determined in the Incentive Auction R&O that the part 15 rules provide an “appropriate and reliable framework for permitting low power uses on an unlicensed basis,” while also recognizing that a further record would be necessary to establish the technical standards to govern such use in the guard bands and duplex gap. The Commission also emphasized that, “consistent with the Spectrum Act, unlicensed use of the guard bands will be subject to the Commission's ultimate determination that such use will not cause harmful interference to licensed services.” Subsequent to the Incentive Auction R&O, the Commission initiated a rulemaking proceeding to develop technical and operational rules to enable unlicensed devices to operate in the guard bands and duplex gap without causing harmful interference to licensed services. Specifically, on September 30, 2014, the Commission adopted the Part 15 NPRM that proposed rules for unlicensed white space device operation in the TV bands, repurposed 600 MHz Band, guard bands (including the duplex gap), and on channel 37.

    64. We disagree with Qualcomm that the Commission's decision is arbitrary, capricious, or otherwise violates the APA. The procedure the Commission is following in this proceeding (first deciding to allow unlicensed use of certain frequency bands, and then proposing specific technical rules) is similar to the procedure the Commission followed in the TV white spaces proceeding (ET Docket No. 04-186). In that proceeding, the Commission decided to allow fixed unlicensed use of certain vacant channels in the TV bands, but did not have a sufficient record to adopt technical rules for such operation. It adopted the TV White Spaces First R&O and FNRPM that made the decision but did not adopt any technical rules. Along with this decision, the Commission included a further notice of proposed rulemaking portion proposing specific technical rules, which it followed subsequently with the TV White Spaces Second Incentive Auction R&O in which it adopted technical rules. Thus, there is precedent for the Commission's decision to decide first to permit unlicensed operations in a frequency band—in this case in the guard bands and duplex gap—subject to the subsequent proceedings to develop technical rules to allow such operation. Moreover, the Commission has broad authority to decide how best to manage its decision-making process. Also, we disagree that the Commission disregarded Qualcomm's filings alleging that unlicensed use of the guard bands and duplex gap would result in harmful interference to licensed services. The Commission considered them when making its decision, specifically recognizing that parties disagreed on certain assumptions in Qualcomm's technical analysis, and decided that these disagreements would be more appropriately addressed in the rulemaking proceeding that it initiated subsequent to the Incentive Auction R&O.

    65. We also disagree with Qualcomm's contention that unlicensed operations in the 600 MHz Band would destroy the fungibility of the licensed spectrum blocks and reduce their value. This argument is based on the premise that unlicensed operations in the guard bands and duplex gap will definitely cause harmful interference to licensed services in adjacent bands. As discussed above, we will not permit any unlicensed operations in the guard bands and duplex gap that will cause harmful interference to licensed services.

    3. Channel 37

    66. Background. The current part 15 rules generally prohibit operation of unlicensed devices on channel 37. The Commission ceased certifying new unlicensed medical telemetry transmitters for operation on channel 37 when it established the WMTS as a licensed service under part 95, but it permits previously authorized medical telemetry equipment to continue operating on channel 37. The rules do not allow the operation of white space devices on channel 37. The Commission excluded white space devices from operating on channel 37 to protect the WMTS and the Radio Astronomy Service (“RAS”) since channel 37 is not used for TV service and therefore has different interference considerations than those at issue in the white spaces proceeding.

    67. In the Incentive Auction R&O, the Commission decided that unlicensed devices will be permitted to operate on channel 37, subject to the development of the appropriate technical parameters for such operations, including the use of the white space databases to protect WMTS operations at their fixed locations. It stated that unlicensed operations on channel 37 will be authorized in locations that are sufficiently removed from WMTS users and RAS sites to protect those incumbent users from harmful interference. In making this decision, the Commission recognized the concerns of WMTS equipment manufacturers and users about the potential for unlicensed operations on channel 37 to cause harmful interference to the WMTS. It also recognized that parties disagreed on the appropriate interference analysis methodology and the ability of the TV bands databases to provide adequate protection to the WMTS. The Commission decided that it would “permit unlicensed operations on channel 37 at locations where it is not in use by incumbents, subject to the development of the appropriate technical parameters to protect incumbents from harmful interference,” and that it would consider these issues as part of a separate rulemaking proceeding “with the objective of developing reliable technical requirements that will permit unlicensed operations while protecting the WMTS and RAS from harmful interference.”

    68. GE Healthcare (“GEHC”) and the WMTS Coalition seek reconsideration of the Commission's decision to allow unlicensed devices to operate on channel 37. The petitioners argue that the Commission should consider whether to permit sharing only after it has completed a full and balanced inquiry into whether operating and technical rules can be developed that assure that harmful interference will not occur to the WMTS. GEHC claims that the Commission's decision to permit unlicensed operations on channel 37 is a policy change and a rule change because the Commission revised section 15.707(a) to permit unlicensed operations in the 600 MHz Band, including on channel 37, and thus its request for reconsideration is appropriate and ripe for review. GEHC and the WMTS Coalition also claim that the Commission's decision is inconsistent with past precedents that WMTS and unlicensed devices could not share the band. The WMTS Coalition states that the Commission has given careful consideration to the advisability of band sharing on channel 37 between unlicensed devices and the WMTS several times over the last twelve years, and that each time it has done so, it determined that channel 37 should not be subject to sharing with unlicensed devices. GEHC argues that the Commission's failure to explain its departure from precedent or how harmful interference to WMTS operations from unlicensed devices will be avoided violates the APA. The WMTS Coalition also argues that the decision to allow sharing is premised upon the unrealistic assumption that current and future WMTS sites can be accurately identified. It states that the geographic coordinates in the WMTS database are not sufficiently accurate for frequency coordination, and that some hospitals have either not kept their data updated or have not registered at all with the database. The WMTS Coalition argues that by determining in advance that sharing of channel 37 will occur, the Commission has tipped the scales away from a balanced analysis of the risks and benefits of allowing sharing. We received oppositions to the GEHC and WMTS Coalition petitions from Google/Microsoft, WISPA, OTI/PK and Sennheiser.

    69. Discussion. We deny the requests of GEHC and the WMTS Coalition to reverse the Commission's decision to permit unlicensed white space devices to operate on channel 37. The Commission made this decision subject to the development of appropriate technical parameters for such operations, so unlicensed devices cannot operate on channel 37 unless such rules are promulgated. Subsequent to the Incentive Auction R&O, the Commission initiated a rulemaking proceeding to develop technical and operational rules to enable unlicensed white space devices to access and operate on channel 37, through use of a database, in a manner that would not cause harmful interference to the WMTS and RAS. Specifically, on September 30, 2014, the Commission adopted a Notice of Proposed Rulemaking that proposes rules for unlicensed operation in the TV bands, repurposed 600 MHz Band, guard bands (including the duplex gap), and on channel 37.

    70. We disagree with GEHC that the Commission's action to allow unlicensed white space device operation on channel 37 is arbitrary, capricious, or violates the APA. As discussed above, the Commission followed a similar course in the TV white spaces proceeding in which it decided to allow unlicensed white space device operation in particular frequency bands (the TV bands in that case), followed by a proposal to develop the appropriate technical requirements to prevent interference to authorized services in those bands. As with the guard bands, the decision in the Incentive Auction R&O was based on the record, recognizing that the parties had different analyses based on different assumptions. The decision is conditioned on developing technical rules to protect incumbent services from harmful interference. As noted above, the Commission has broad authority to decide how best to manage its decision-making process and to order its docket “as will best conduce to the proper dispatch of business and to the ends of justice.” Contrary to GEHC's assertion, the changes that the Commission made to section 15.707(a) in the Incentive Auction R&O do not allow operation of unlicensed white space devices on channel 37 prior to the development of technical requirements. The purpose of the changes to section 15.707(a) is to allow the continued operation of white space devices in the 600 MHz Band after the incentive auction at locations where licensees have not yet commenced service. The 600 MHz Band as defined in part 27 does not encompass channel 37, so the Commission's changes to section 15.707(a) in the Incentive Auction R&O do not allow unlicensed device operation on channel 37.

    71. The Commission adequately explained its policy change to allow unlicensed white space devices to operate on channel 37. As discussed above, when the Commission decided in 2006 to exclude white space devices from operating on channel 37 to protect the WMTS and RAS, it noted that channel 37 has different interference considerations than those at issue in the white spaces proceeding. In particular, the white space proceeding focused on unlicensed devices operating on channels used for the broadcast television service, so the Commission developed technical requirements to protect television and other operations in the TV bands, such as wireless microphones. The Commission did not conclude that sharing with the WMTS and RAS was not possible; it simply chose not to address the issue of such sharing in the TV white spaces proceeding. The Commission explained in the Incentive Auction R&O that since the time it made the decision to prohibit unlicensed use of channel 37, it has designated multiple TV bands database administrators, has had extensive experience working with their databases, and has a high degree of confidence that they can reliably protect fixed operations. The Commission further explained that the fixed locations where the WMTS is used are already registered in the American Society for Health Care Engineering (“ASHE”) database, and these data could be added to the TV bands databases. The Commission recognized concerns that WMTS location information in the ASHE database may be imprecise or missing, and stated that these could be addressed by establishing conservative separation distances from unlicensed devices and by reminding hospitals and other medical facilities of their obligation under the rules to register and maintain current information in the database. The Commission is currently considering these issues in the Part 15 NPRM.

    C. Other Services 1. Channel 37 Services

    72. Background. The WMTS, which operates licensed stations on channel 37 in the UHF Band, is used for remote monitoring of patients' vital signs and other important health parameters (e.g., pulse and respiration rates) inside medical facilities. WMTS includes devices that transport the data via a radio link to a remote location, such as a nurse's station, for monitoring. After the incentive auction, the services that will operate in the frequency bands adjacent to the WMTS will depend on the amount of spectrum recovered in the incentive auction. If more than 84 megahertz is recovered, there will be three megahertz guard bands on each side of channel 37, with wireless downlink spectrum above and below these guard bands. If exactly 84 megahertz is recovered, there will be a three megahertz guardband above channel 37 to separate this channel from wireless downlink spectrum, while channel 36 will continue to be used for television. If less than 84 megahertz is recovered, channels 36 and 38 will both continue to be used for television.

    73. The decision to provide for a three megahertz guard band between WMTS and 600 MHz downlink operations balanced the need to protect WMTS facilities from interference with the need for new 600 MHz licensees to have flexibility to deploy base stations where needed to provide coverage over their service areas. The decision not to require coordination was supported by the Commission's technical analysis, based on protection criteria GEHC provided in its comments. This analysis showed that three megahertz guard bands adjacent to channel 37 requires only reasonably short separation distances to protect WMTS from new 600 MHz operations. The Commission decided not to provide for enhanced protection of WMTS if additional TV stations are placed in channels 36 or 38 as a result of the repacking process. Instead, we chose to rely on the existing DTV out-of-band emission (OOBE) limits, and noted that the extent of potential interference to WMTS would depend in large part on the locations of any TV stations repacked to channels 36 or 38 in relationship to health care facilities.

    74. In its Petition, GEHC claims the Commission erred when it relied solely on the three megahertz guard band to protect WMTS from 600 MHz Band operations in adjacent bands, and that GEHC's revised analysis shows that greater separation distances or more stringent limits on power and out-of-band emissions from 600 MHz Band base stations are needed. GEHC makes three main claims to support its position: (1) The FCC's technical analysis inappropriately applied the protection criteria GEHC provided; (2) the FCC failed to consider interference aggregation from multiple WMTS antennas; and (3) the FCC incorrectly converted field strength to received power. GEHC further claims that the Commission ignored key concerns that allowing additional TV stations to be repacked into channels 36 and 38 will reduce WMTS spectrum capacity, increase the number of WMTS facilities that could experience interference from TV operations, cause hospitals to incur additional costs to protect their WMTS operations from harmful interference, and require hospitals to create de facto guard bands to protect their WMTS operations from harmful interference, effectively reducing the amount of usable spectrum on channel 37 for the WMTS. CTIA disagrees with GEHC, noting that their positions would threaten to limit the amount of licensed spectrum made available in the incentive auction and increase the number of new wireless licenses that are encumbered.

    75. Discussion—WMTS and 600 MHz Band services. While we revise our technical analysis in light of GEHC's Petition, we affirm our conclusion that a three megahertz guard band between 600 MHz operations and channel 37, along with the 600 MHz Band service out-of-band emission limits we adopted, will adequately protect WMTS facilities. GEHC states that the FCC's technical analysis inappropriately applied the protection criteria GEHC provided. More specifically, it states that instead of applying the field strength protection values it provided “at the perimeter of a registered WMTS facility,” we applied them at the receiver. GEHC argues that this resulted in the double-counting of building penetration losses and filter rejection in the overload interference analyses and double-counting of building penetration loss in the out-of-band analysis. GEHC's maximum recommended field strength levels at the perimeter of a WMTS facility that were provided in its comments to the Incentive Auction NPRM were based on several tables showing a link budget analysis for overload and out-of-band interference. These tables included a term described as “excess loss (building attenuation, etc.),” which we included in our analysis. It was unclear from GEHC's comments that these losses had been already considered in developing their recommended field strength limits. However, based on the clarification in its petition, we now agree that these losses should not have been considered in our analysis. Accordingly, we eliminate this factor from our revised analysis shown in Appendix A.

    76. While we agree that we incorrectly double-counted building losses in our original analysis, we disagree that we double-counted any WMTS receive filter attenuation outside of channel 37. GEHC developed its recommended field strength limits using the assumption that new 600 MHz licensees would be operating directly adjacent to channel 37. The 600 MHz Band Plan, however, includes three megahertz guard bands adjacent to channel 37. Based on the filter characteristics provided by GEHC, this frequency separation provides an additional 10 dB of signal attenuation. Thus, it was appropriate to include this additional 10 dB of signal loss for filter attenuation in our analysis. This is so even though the receiver which includes the filter is not located at the perimeter of the building, because the goal is to protect the receiver and the filter provides some of that protection. Such excess loss occurs after the point at which GEHC specifies the protection values must be met. But, because that loss is a real phenomenon, GEHC takes it into account when developing its protection criteria. We treat the filter attenuation in a similar manner in our analysis.

    77. We also agree with GEHC that we erred by failing to consider interference aggregation from multiple WMTS antennas in our technical analysis. Because most WMTS facilities employ distributed antenna systems (“DAS”) which include many antenna elements, more than a single antenna element may receive an interfering signal. In its comments, GEHC asserted that the analysis therefore should include a 10 dB penalty for aggregating signals from ten WMTS antennas. In its Petition, GEHC states that this scenario is unlikely, and instead recommends an aggregation adjustment of three dB based on signal aggregation from two antennas. Using the revised three dB value provides an additional seven dB of margin, which would allow less stringent field strength protection values than those GEHC proposed. We take this three dB antenna aggregation factor into account in our new analysis shown in Appendix A.

    78. Regarding GEHC's claim that we incorrectly converted field strength to received power, we disagree. There are many methods for converting between these units and the choice of which method to use depends on many factors, such as whether the conversion is being used to verify a measurement or to estimate an electric field at some distance from a transmitter. GEHC asserts that the formula we used, which is commonly used in measurement laboratories, unfairly biases our results by three meters (the assumed measurement distance). It states that such bias creates a 37.6 dB disparity, which is equivalent to the free space loss over the first three meters from an antenna at 611 MHz. GEHC's claim fails to recognize that the received power is being generated from a transmitter at a much greater distance than three meters. Because signal strength attenuates exponentially over distance, the loss in that last three meters is much less than the loss over the first three meters or any other three-meter segment along the signal path. The exact difference will depend on the actual distance of the transmitter from the WMTS facility.

    79. We reject GEHC's alternative formula for calculating radiated power and field strength for conducted power measurements. It cites an equation that relates power in the load (i.e. power received by the antenna) to the field strength. GEHC then argues an equivalency between that field strength and the transmitter equivalent isotropically radiated power (“EIRP”). GEHC fails to acknowledge that the EIRP is a function of the transmitter power and transmit antenna gain, which is at some distance from the receiving antenna. Thus, the power received by the receive antenna is not the EIRP, but the EIRP less the path loss (e.g., free space loss plus any additional loss that the signal may incur as it propagates from the transmitter to the antenna).

    80. We also disagree with GEHC's claims that there are several other, less serious errors in our analysis. For the overload analysis, it states that while we assumed five megahertz channels for the 600 MHz transmitter, we incorrectly considered only that portion of the 600 MHz Band power that falls in the first adjacent six megahertz channels above and below channel 37, effectively ignoring any power in the second adjacent channels. GEHC argues that such a methodology is unrealistic as it inherently assumes that power in the second adjacent channel does not exist or that the receiver's filter perfectly rejects this portion of the power. Based on the surface acoustic wave (“SAW”) filter characteristics GEHC provided, which show attenuation between approximately 40 and 60 dB beyond four to five megahertz of the channel 37 band edges (i.e., into the second adjacent channel), our assumption to only consider the power in the first adjacent channel is reasonable. If we were to consider the power across additional channels, we would also need to consider the full filter attenuation across the channel; instead, we simplify our analysis and assume only 10 dB of attenuation at three megahertz from the band edge. Thus, our power assumptions are conservative. GEHC also states that we should not have integrated the partial power over the entire six megahertz adjacent channel. However, GEHC fails to offer an alternative method. Again, we believe this to be a valid simplifying assumption for the purposes of our analysis.

    81. In advocating for specific field strength protection values, GEHC fails to provide information on the relationship between the results of its analysis and those field strength protection values. GEHC does, however, state that those field strength protection values are based on meeting a -37.8 dBm/MHz threshold in its overload (or blocking) analysis and on meeting an I/N ratio of -6 in its OOBE analysis. GEHC's methodology for calculating protection distance based on these protection values is straightforward. Using that same methodology, we show in Appendix A that the separation distance necessary to protect WMTS from 600 MHz operations is reasonably small. The results of our analysis show shorter separation distances than those calculated by GEHC to meet the same protection criteria for overload and OOBE interference. We acknowledge that these distances are larger than those we calculated in our analysis supporting the Incentive Auction R&O, but not of such a magnitude that persuades us to alter our conclusion that the vast majority of WMTS stations will not suffer any detrimental effects from the installation of new 600 MHz base stations. It is important to note that this is a worst case analysis and in most installations one or more of the parameters we assumed here will provide additional protection. Thus, we continue to believe that the three megahertz guard band along with the adopted 600 MHz service OOBE limits we adopted will adequately protect WMTS facilities while providing flexibility for new 600 MHz licensees to deploy their systems. Nevertheless, we encourage new 600 MHz licensees to be cognizant of the presence of WMTS facilities when designing their networks and when possible to take measures to minimize the energy directed towards them.

    82. WMTS and Television Services. We decline to reconsider our decision not to limit the number of television stations that could be repacked in channels 36 and 38. Restricting repacking on channels 36 and 38 would significantly impede repacking flexibility and limit our ability to repurpose spectrum through the incentive auction. Even if channels 36 and 38 continue to be used for broadcast television after the auction, an increase in the number of stations on these channels does not correspond to an increase in the number of WMTS users that would be affected by adjacent channel TV stations. We expect that there will be many locations where TV stations can operate on channels 36 and 38 with minimal or no effect on WMTS users. Any interference that does occur to the WMTS from adjacent channel TV operations can be addressed on an as-needed basis. The potential for an adjacent channel TV station to affect a WMTS installation depends on many factors, including the TV station power and antenna height, separation distance, intervening obstacles (such as terrain, trees or buildings), and the WMTS receive antenna characteristics (such as height, gain, directionality, and location inside or outside a building). While we recognize GEHC's concern that “hardening” a WMTS facility against adjacent channel TV emissions involves costs, we note that many WMTS licensees have already taken such action by adding filters to their systems. Thus, we believe that the need for some facilities to take this action does not pose an insurmountable problem, or require a blanket restriction on repacking TV stations into channels 36 and 38. As CTIA points out, WMTS has never been able to rely on those channels being vacant.

    83. Finally, we note that the Commission allocated three spectrum bands for the WMTS, including two bands at 1.4 GHz in addition to channel 37. In allocating this spectrum, the Commission recognized that WMTS operations on channel 37 could be affected in some instances by nearby stations on channels 36 and 38, and it stated that WMTS providers could use one of the other allocated bands in these situations. The Commission also stated that manufacturers could design their equipment to provide sufficient protection from adjacent channel interference.

    2. LPAS and Unlicensed Wireless Microphones

    84. We deny Sennheiser's and RTDNA's petitions requesting that additional spectrum be reserved exclusively for wireless microphone operations. We instead affirm the balanced approach we adopted in the Incentive Auction R&O to accommodate wireless microphone operations while also taking into account the interests of other users of the more limited spectrum in the repacked TV bands and the repurposed 600 MHz Band spectrum, including the 600 MHz Band guard bands. Considering the several actions the Commission took in the Incentive Auction R&O, as well as the additional actions it now is actively exploring, to accommodate wireless microphone operators' needs following the incentive auction, including the high-end professional-type needs about which Sennheiser and RDTNA are concerned, we are not persuaded that we should provide any more spectrum exclusively for use by wireless microphone users for these types of operations.

    85. The Commission took several steps in the Incentive Auction R&O to accommodate wireless microphone operations—including licensed wireless microphone operations—in the spectrum that would remain available for use following the incentive auction. Specifically, it provided for more opportunities for co-channel operations with television stations. It also sought to ensure that at least one channel in the TV bands would continue to be available for wireless microphone operations, stating its intent, following notice and comment, to designate one unused TV channel in each area of the country for use by wireless microphones and white space devices. As discussed above, we recently adopted the Vacant Channel NPRM proposing to do this. Licensed wireless microphone operators needing interference-free operations from white space devices will be able to reserve this channel for use at specified locations and times through the TV bands databases. Further, the Commission stated that it would seek comment on ways to update its rules for TV bands databases to provide for more immediate reservation of unused and available channels for use by wireless microphone operators in order to better enable them to obtain needed interference protection from white space device operations at specified locations and times. Shortly following adoption of the Incentive Auction R&O, in September 2014, the Commission issued the Part 15 NPRM proposing such revisions.

    86. The Commission also indicated in the Incentive Auction R&O that it planned to take additional steps to ensure that spectrum for wireless microphone users—again including licensed wireless microphone users—would be available following the incentive auction. It provided that wireless microphones would be permitted to operate in the 600 MHz Band guard bands, including the duplex gap, subject to technical standards to be developed in a later proceeding. In the Part 15 NPRM, we are following through on that decision, including seeking comment on our proposal to provide licensed wireless microphone operators with exclusive access to four megahertz of spectrum in the duplex gap. Because wireless microphone operators today rely heavily on the current UHF Band, we provided for a transition period that would permit them to continue to operate in the repurposed 600 MHz Band spectrum for up to 39 months following issuance of the Channel Reassignment PN, subject to specified conditions, both to address their near-term needs and to help facilitate the transition of users that currently operate in this portion of the UHF Band to spectrum that is or will be available for their use. In order to accommodate wireless microphone users' long-term needs, the Commission committed to initiating a proceeding to explore additional steps it can take, including use of additional frequency bands. We followed through on this commitment by adopting the Wireless Microphones NPRM in September 2014. In light of the above-stated actions, and the need to balance the interests of multiple different UHF Band spectrum users, as well as the goals of the incentive auction, we decline to take action on reconsideration to provide any more spectrum exclusively for use by wireless microphone users.

    87. We also deny Qualcomm's petition challenging the Commission's decision to permit wireless microphone operations in the guard bands and duplex gap. The crux of Qualcomm's challenge is that there was insufficient record to decide how wireless microphones could operate successfully in these bands, along with white space devices, in a manner that also ensures that such operations do not cause interference to licensed wireless services in the adjacent bands. For the reasons discussed above with respect to Qualcomm's challenge of the decision to permit unlicensed white space devices to operate in the guard bands and duplex gap (along with wireless microphones), we reject Qualcomm's request. In the Part 15 NPRM, we are seeking comment on technical rules that comply with the Spectrum Act and address the potential interference concerns raised in Qualcomm's petition. Qualcomm has the opportunity to present its concerns in that proceeding.

    88. Finally, we reject Sennheiser's renewed request that we require forward auction winners to reimburse licensed and unlicensed wireless microphone users for costs associated with replacing equipment as a result of the incentive auction and repurposing of spectrum for wireless services. Sennheiser does not challenge the Commission's conclusion that reimbursement was not contemplated or required by the Spectrum Act. Instead, Sennheiser argues that the Commission has independent authority under the Communications Act to require reimbursement, and challenges the Commission's reasoning that wireless microphone users are not entitled to reimbursement because they operate on a secondary or unlicensed basis. While we agree that the Commission does have independent authority for requiring reimbursements for relocation costs under certain circumstances, we affirm our decision not to require it here. Contrary to Sennheiser's arguments, our rules and policies are clear that licensed wireless microphone operations are secondary, and not primary, in those portions of the current TV bands that will be reallocated for wireless services following the incentive auction. The Commission has never required that primary licensees (here, the 600 MHz Band wireless licensees) moving into a band reimburse users that have been operating on a secondary basis in that band. We also decline to require reimbursement of unlicensed wireless microphone users that currently are operating pursuant to a limited waiver under certain part 15 rules; unlicensed users as a general matter do not have vested or cognizable rights to their continued operations in the reallocated TV bands.

    II. The Incentive Auction Process A. Integration of the Reverse and Forward Auctions

    89. We deny the petitions for reconsideration of the average price component of the final stage rule. The final stage rule is an aggregate reserve price based on bids in the forward auction. If the final stage rule is satisfied, the forward auction bidding will continue until there is no excess demand, and then the incentive auction will close. If the final stage rule is not satisfied, additional stages will be run, with progressively lower spectrum targets in the reverse auction and less spectrum for licenses available in the forward auction, until the rule is satisfied.

    90. Contrary to petitioners' claims, the Commission clearly stated the reason for the adoption of the average price component in the Incentive Auction R&O. The Commission concluded that its reserve price approach would help assure that auction prices reflect competitive market values and serve the public interest. In particular, the Commission stated, “the first component of the final stage rule's reserve price [the average price component] ensures that the forward auction recovers `a portion of the value of the public spectrum resource,' as required by the Communications Act.” The petitioners, T-Mobile and the Competitive Carriers Association (“CCA”), do not demonstrate that this objective is not a satisfactory explanation for adopting this component.

    91. CCA argues that the average price component is unnecessary because forward auction bids that satisfy the costs component (including payments to reverse auction bidders) would represent a price for goods agreed to by willing sellers and buyers of those goods, but this argument is based on an incorrect premise. The forward auction bidders will not be “buying” what the reverse auction bidders are “selling.” Rather, the Commission will offer new flexible use licenses—unlike existing broadcast licenses—utilizing spectrum from various sources, including the aggregate spectrum relinquished by reverse auction bidders as well as spectrum freed by relocating broadcasters that will continue broadcasting on different frequencies. Consequently, bids to relinquish spectrum in the reverse auction do not intrinsically determine the value of the licenses offered in the forward auction. As a result, CCA has not demonstrated that it was unreasonable for the Commission to establish the average price component to serve public interest objectives of spectrum auctions as required by the Communications Act.

    92. T-Mobile contends that the Commission failed to adequately address the inherent risk that forward auction bids may not satisfy the average price component or the risks that an unsuccessful auction pose to wireless competition and the availability of sufficient low band spectrum to meet demand for broadband services. The degree of these risks, however, depends in large part on the final benchmarks used, which the Commission stated that it would decide later based on additional public input. To the extent T-Mobile's argument rests upon the degree of risk posed by a specific average price, therefore, it is premature. Moreover, assessing the reasonableness of any risk to the incentive auction's success requires a proper metric for that success. The incentive auction will succeed if its results serve the public interest, as identified by the Commission and consistent with Congress's statutory mandates. As discussed, Congress mandated the particular objective of recovering a portion of the value of the public spectrum resource in the Communications Act. Neither petitioner takes into account this metric of success when complaining that the average price component risks auction “failure.”

    93. We do not find the petitioners' additional arguments any more persuasive. T-Mobile complains that the use of an “average” price benchmark leaves many issues undecided and adds further complexity to an already complex proceeding. As noted in the Incentive Auction R&O, however, “the Procedures PN will determine the specific parameters of the final stage rule after further notice and comment in the pre-auction process.” In its Reply, T-Mobile strains to read the Incentive Auction R&O as providing that “all that remains to be done . . . is for the Commission to announce a price figure[.]” T-Mobile's list of questions regarding implementation, however, demonstrates that more is required in the pre-auction process than simply announcing a price figure. The Incentive Auction Comment PN makes proposals and seeks comment with respect to several such points. Accordingly, T-Mobile's argument does not offer a basis for reconsidering the decision to adopt the average price component of the final stage rule.

    94. Finally, CCA contends that the Commission did not articulate a reason for addressing the possibility in the average price component that the spectrum clearing target exceeds the spectrum clearing benchmark, but not the possibility that the actual target falls below the spectrum clearing benchmark. The Commission need not address why the decision it made “is a better means [to achieving its purpose] than any conceivable alternative.” Given that the Commission's mandate is to recover “a portion of the value of the public spectrum resource,” the average price component need not be designed to take into account MHz-pop prices that might be higher than expected (which would be the effect, if any, of the auction clearing less spectrum than the spectrum clearing benchmark). Put differently, the Commission is not charged with recovering a particular percentage of the spectrum value, so there is no need for the average price component to respond to increasing prices.

    B. Reverse Auction 1. Eligibility

    95. We reject the arguments of Free Access, LPTV Coalition, and Signal Above that LPTV stations should be allowed to participate in the incentive auction and that we violated the RFA by failing to conduct an independent analysis of the potential economic impact on LPTV stations of either granting or denying them eligibility to participate. Two months after the deadline for filing reconsideration petitions, Free Access filed a Motion for Leave to File Supplement to Petition for Reconsideration (filed Dec. 15, 2014) (“Free Access Motion”), arguing that it discovered additional information after the deadline for filing for reconsideration, that it raised such matters in a letter to the Chairman and to the Chief Counsel of the Small Business Administration (“SBA Letter”), and asking that the SBA Letter be included in the record of this proceeding. We dismiss this filing as a late-filed petition for reconsideration. The Commission may not waive the deadline for seeking reconsideration absent extraordinary circumstances, which Free Access has failed to demonstrate. Accordingly, we deny Free Access' Motion. We will, however, consider the matters raised in Free Access' Motion as informal comments.

    96. We affirm our determination that eligibility to participate in the reverse auction is limited to licensees of full power and Class A television stations. This determination is consistent with the Spectrum Act's mandate to conduct a reverse auction specifically for each “broadcast television licensee,” which is defined to exclude LPTV stations. Even assuming we have discretion to grant eligibility to the licensees of LPTV stations despite the statutory mandate, granting such eligibility would be inappropriate for the reasons we explained in the Incentive Auction R&O. For instance, LPTV stations are not entitled to repacking protection, and we reasonably declined to exercise our limited discretion to protect them. As LPTV stations are not eligible for protection in the repacking process and are subject to displacement by primary services, relinquishment of their spectrum usage rights is not necessary “in order to make spectrum available for assignment” in the forward auction. Accordingly, sharing the proceeds of the forward auction with the licensees of LPTV stations would not further the goals of the Spectrum Act; instead, it would undercut Congress's funding priorities, including public-safety related priorities and deficit reduction.

    97. Contrary to the petitioners' arguments, nothing in the RFA or any other statute requires the Commission to conduct an independent analysis of the economic impact on LPTV stations of making them ineligible to participate in the incentive auction. The RFA requires a “`statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule.' Nowhere does it require . . . cost-benefit analysis or economic modeling.” We disagree with Free Access' claim that the Final Regulatory Flexibility Analysis included with the Incentive Auction R&O incorrectly stated that “no comments were received in response to the IRFA [Initial Regulatory Flexibility Analysis] in this proceeding.” The IRFA included with the Incentive Auction NPRM at Appendix B stated that “[w]ritten public comments are requested on this IRFA” and that “[c]omments must be identified as responses to the IRFA and must be filed by the deadlines for comments indicated on the first page of the Notice.” Although some parties may have raised IRFA-related matters in ex parte presentations to staff, these presentations did not constitute formal comments filed in response to the IRFA, were not identified as such, and were not filed by the comment deadline. Nevertheless, the matters that were raised in these ex parte presentations (namely that the FCC should undertake a full economic and financial analysis as to whether LPTV participation could result in a more successful incentive auction) were considered by the Commission in this proceeding. Furthermore, many of the filings Free Access mentions simply cite a sentence in the IRFA included with the Incentive Auction NPRM as support for the position that LPTV may participate in the auction. Those filings have nothing to do with the analysis in the IRFA of the impact on small entities.

    98. Likewise, the APA requires that a rule be “reasonable and reasonably explained.” Here, Congress has already determined that LPTV stations are not eligible for the auction, rendering an economic analysis superfluous at best. We fully explained our reasons for declining to protect LPTV stations in the repacking process or to include them in the reverse auction, adopted various measures to mitigate the potential impact of the incentive auction and the repacking process on LPTV stations, and initiated a separate proceeding to consider additional remedial measures. Having demonstrated a “reasonable, good-faith effort to carry out [the RFA's] mandate,” no independent analysis of the potential economic impact on LPTV stations of excluding them from reverse auction participation was required of us, nor would such an analysis have been useful or helpful.

    2. Bid Options

    99. For the reasons set out in more detail below, we affirm our decision to allow NCE stations to participate fully in the reverse auction and find that it is consistent with the Public Broadcasting Act and our NCE reservation policy, taking into account the unique circumstances and Congressional directives with respect to the auction. At the same time, the Commission remains fully committed to the mission of noncommercial broadcasting. The Commission has continuously found that NCEs provide an important service in the public interest, and it has promoted the growth of public television accordingly. In the context of the incentive auction, we emphasize that there will be multiple ways for NCE stations to participate in the auction and continue in their broadcasting missions. The bid options to channel share and to move to a VHF channel will enable NCE stations to continue service after the auction while still realizing significant proceeds. In the channel sharing context, we continue to disfavor dereservation of NCE channels. For those stations that are interested in moving to VHF, we have proposed opening prices that represent significant percentages of the prices for going off the air, and we will afford favorable consideration to post-auction requests for waiver of the VHF power and height limitations. NCEs that participate in the auction under any bid option but are not selected will remain broadcasters in their home band, and we will make all reasonable efforts to preserve their service.

    100. Our auction design preserves for each NCE licensee the decision of whether to participate, giving stations that want to participate but remain on the air choices for doing so, without unnecessarily constraining our ability to repurpose spectrum. Our approach gives NCE licensees the flexibility to participate fully in the incentive auction, and we will be able to address any service losses after the auction is complete in a manner consistent with the goals of section 307(b) of the Communications Act and our longstanding NCE reservation policy. On balance, we find that the approach we adopted in the Incentive Auction R&O is the best way to uphold the NCE reservation policy while also carrying out Congress's goals for the incentive auction.

    101. We agree with PTV that the Commission has a longstanding policy of reserving spectrum in the television band for NCE stations and against dereserving channel allotments. As PTV notes, the Commission's policy originated more than 60 years ago, when the Commission concluded that “there is a need for non commercial educational stations.” Indeed, the Commission has historically denied requests for dereservation both where the licensee was in severe financial distress and where the channel was vacant after a number of attempts to provide noncommercial service failed.

    102. However, we disagree that our decision reverses the NCE reservation policy. The incentive auction presents unique circumstances that we must take into account in implementing this policy. Congress directed that the Commission conduct a broadcast television spectrum incentive auction to repurpose UHF spectrum for new, flexible uses, but directed that participation in the reverse auction by broadcasters must be voluntary. Thus, the Commission cannot compel participation, but neither should it preclude a willing broadcast licensee, including an NCE station, from bidding. PTV also claims that our analysis that restrictions on participation would be contrary to the statute is flawed. On this, we agree and update our analysis. Section 1452(a)(1) provides that the Commission “shall conduct a reverse auction to determine the amount of compensation that each broadcast television licensee would accept in return for voluntarily relinquishing some or all of its broadcast television usage rights . . . .” After further analysis, we agree that the language in section 1452(a) is ambiguous and that nothing in section 1452(a) expressly prohibits the FCC from imposing conditions on its acceptance of reverse auction bids in order to serve policy goals, and the Commission did in fact impose certain conditions on acceptance of reverse auction bids in the Incentive Auction R&O. Nevertheless, while we agree that we are not statutorily precluded from adopting the PTV proposal, we decline to adopt it for all the policy reasons described above.

    103. Most closely analogous to the incentive auction in terms of application of the reservation policy was the digital television transition. There, the Commission preserved vacant reserved allotments where possible, but where it was impossible, the Commission allowed for the future allotment of reserved NCE channels after the transition to fill in those areas that lost a reserved allotment, finding that “if vacant allotments were retained, it would not be possible to accommodate all existing broadcasters in all areas . . . and could result in increased interference to existing . . . stations.” In the auction context, we similarly determined that we could not apply the reservation policy during the repacking process itself because there is no feasible way of doing so without creating additional constraints on repacking that would compromise the auction.

    104. PTV proposes “to allow a noncommercial educational station to relinquish its spectrum so long as at least one such station remains on-air in the community or at least one reserved channel is preserved in the repacking to enable a new entrant to offer noncommercial educational television service in the community.” While PTV regards its proposal as balanced because it would allow the last NCE to relinquish its spectrum, the two options it puts forward would impose essentially equivalent constraints on our ability to repurpose spectrum. Under PTV's proposal, the auction mechanism would either have to reject the bids of the last NCE station in a market, or it would have to put an additional constraint in the new television band. Rejecting the bid of the last NCE in a market would prevent at least some NCEs from engaging in the auction. And while conditioning the relinquishment of the last NCE's spectrum on the preservation of at least one reserved channel may allow full participation by NCE licensees, it would impose the same constraint on the auction system's ability to repack commercial and NCE stations that remain on the air. The effect would be the same as PTV's first option, reducing the amount of spectrum that can be cleared and the revenue that can be realized in the forward auction. This extra analysis would also compromise the speed at which the auction runs.

    105. We conclude that the most effective means of balancing our commitment to noncommercial educational broadcasting and the mandates of the Spectrum Act is to address any actual service losses on a case-by-case basis in a manner that is tailored to the post-auction television landscape. We are considering a number of such measures. For example, we could waive the freeze on the filing of applications for new LPTV or TV translator stations to allow NCE licensees to promptly restore NCE service to a loss area with these stations. Or, if the last NCE station in a given community goes off the air as a result of the incentive auction, the Commission could consider a minor modification application by a neighboring public station to expand its contour to cover that community, possibly by waiving our rules on power and height restrictions, if the licensee can demonstrate that it would not introduce new interference to other broadcasters. In addition, interested parties could file petitions for rulemaking to propose the allotment of new reserved channels to replace the lost service once the Commission lifts the current freeze on the filing of petitions for rulemaking for new station allotments, or the Commission could do so on its own motion.

    106. Finally, we disagree with PTV's claim that “nothing in the NPRM or the extensive record in this proceeding `fairly apprised the public of the Commission's new approach' to reserved channels,” contrary to the requirements of the APA. The petition states that the “Notice's discussion of the impact of the incentive auction on noncommercial educational service was limited to channel sharing restrictions aimed at `preserv[ing] NCE stations and reserved channels.' ” This is incorrect. The Incentive Auction NPRM specifically analyzed whether NCEs would be eligible to participate in the reverse auction. It proposed an approach that did not restrict the participation of NCEs operating on reserved or non-reserved channels, noting that the Spectrum Act did not limit eligibility based on commercial status. The Incentive Auction NPRM indicated further that NCE participation in the auction would be beneficial, both because it would promote the overall goals of the auction and it would “serve the public interest by providing NCE licensees with opportunities to strengthen their financial positions and improve their service to the public.” Adequacy of the notice is demonstrated by comments that PTV submitted in response to the Incentive Auction NPRM, which cited section 307(b) and the FCC's historical policies pertaining to loss of service and asked the Commission not to accept license relinquishment bids that would result in DMAs not served by certain NCE stations.

    III. The Post-Incentive Auction Transition A. Construction Schedule and Deadlines

    107. We decline to consider at this time the Affiliates Associations, ATBA's, and Gannett's requests regarding the transition period for full power and Class A stations because the arguments the petitioners raise are the subject of a recent decision by the United States Court of Appeals for the D.C. Circuit. We will take appropriate action regarding these arguments in a subsequent Order.

    108. We will, however, address ATBA's petition to the extent that it challenges the decision not to “protect” LPTV and TV translator stations from displacement during and after the post-auction transition process. We decline ATBA's request that we “protect all LPTV licenses and construction permits” during the post-incentive auction transition period and “for at least two years thereafter,” which would presumably allow LPTV and TV translators to avoid being displaced during the post-incentive auction transition and two years beyond while repacked stations continue to make modifications to their facilities. The Spectrum Act does not mandate protection of LPTV or TV translator stations in the repacking process, and we declined to grant such protection as a matter of discretion for the reasons explained in the Incentive Auction R&O. For the same reasons, we decline to grant LPTV and TV translator stations protection during and after the post-auction transition period. Any such protection would be inconsistent with the secondary status of LPTV stations under the Commission's rules and policies and would seriously impede the transition process, a critical element to the incentive auction's success. Recognizing the potential impact of the incentive auction and the repacking process on LPTV stations, we adopted in the Incentive Auction R&O an expedited post-auction displacement window to allow stations that are displaced to file an application for a new channel without having to wait until they are actually displaced by a primary user. In addition, we have initiated a proceeding to consider measures to help LPTV and TV translators that are displaced, including delaying the digital transition deadline, allowing stations to channel share, and other measures. These actions will mitigate the impact of the repacking process on LPTV stations without impeding the post-incentive auction transition process.

    B. Consumer Education

    109. We grant, in part, Affiliates Associations' petition for reconsideration and modify our consumer education requirements with respect to certain “transitioning stations.” We continue to believe that “[c]onsumer education will be an important element of an orderly post-auction band transition. Consumers will need to be informed if stations they view will be changing channels, encouraged to rescan their receivers for new channel assignments, and educated on steps to resolve potential reception issues.” At the same time, we agree with Affiliates Association that transitioning stations, except for license relinquishment stations, will be motivated to inform their viewers of their upcoming channel change to prevent disruptions in service. Therefore, we revise our consumer education requirements to provide these stations with additional flexibility.

    110. In the Incentive Auction R&O, we required that all commercial full power and Class A television transitioning stations air a mix of Public Service Announcements (“PSAs”) and crawls at specific times of the day. We allowed NCE full power stations to comply with consumer education requirements through an alternate plan. Specifically, we allowed NCE full power stations to either comply with the framework established for commercial full power and Class A television stations or by only airing 60 seconds per day of on-air consumer education PSAs for 30 days prior to termination of operations on their pre-auction channel. Thus, NCE full power stations were given additional flexibility to choose the timeslots for their consumer education PSAs and to not have to air crawls. We conclude that all transitioning stations, except for license relinquishment stations, should have the same flexibility. Therefore, we will allow all transitioning stations, except for license relinquishment stations, to meet the consumer education objectives by airing, at a minimum, either 60 seconds of on-air consumer education PSAs or 60 seconds of crawls per day for 30 days prior to termination of operations on their pre-auction channel. Stations will have the discretion to choose the timeslots for these PSAs or crawls. We will continue to require that transition PSAs and crawls conform to the requirements set forth in the rules.

    111. We decline, however, to revise our consumer education requirements for license relinquishment stations. Given that these stations will be going off the air, their incentives are necessarily different from stations that will remain on the air. Specifically, relinquishing stations may be less motivated to inform their viewers of their upcoming plan to terminate operations. Nevertheless, it is critical that viewers of these stations be informed of the potential loss of service so they can take the necessary steps to view programming from another source. As we did with consumer education during the DTV transition, we continue to believe a “`baseline requirement' is necessary and appropriate for license relinquishment stations to ensure the public awareness necessary for a smooth and orderly transition.” For these reasons, we affirm our decision with respect to consumer education requirements for license relinquishment stations.

    C. Reimbursement of Relocation Costs 1. Sufficiency of Reimbursement Fund

    112. For the reasons set out below, we deny the requests of Affiliates Associations, Block Stations and NAB that the Commission limit the number of stations that can be repacked based on the availability of $1.75 billion for relocation expenses. We agree with CTIA that the statute merely limits the budget of the Fund to $1.75 billion but does not require that actual costs fall below this level. We affirm the repacking approach adopted in the Incentive Auction R&O, which will incorporate an optimization process to determine the amount of spectrum that can be cleared or repurposed based on the feasibility of assigning channels to stations that remain following the reverse auction. We deny NAB's request that the Commission impose additional constraints on provisional channel assignments, which will be made throughout the reverse auction, beyond those mandated by the statute. Imposing the cost-based constraints sought by petitioners is not mandated by the Spectrum Act and would be unworkable because the total cost of any repacking scenario remains unknown. Moreover, by increasing the number of constraints on the repacking process, granting the petitioners' request would limit our ability to recover spectrum through the incentive auction and undermine the goals of the Spectrum Act.

    113. We agree that reducing the overall costs associated with the repacking process would be beneficial, not only to broadcasters and MVPDs that will rely on reimbursement from the Fund, but also because any excess in funding would be applied to deficit reduction, consistent with another goal of the Spectrum Act. Accordingly, the Commission has proposed an optimization process that seeks to minimize relocation costs associated with the repacking process by adopting a plan for final channel assignments that maximizes the number of stations assigned to their pre-auction channel and avoids reassignments of stations with high anticipated relocation costs. The proposed optimization process would accomplish the same goals as the proposals made by NAB, without compromising the speed and certainty provided by the repacking process adopted in the Incentive Auction R&O. In this regard, we note that Affiliates Associations' and NAB's reliance on estimates that up to 1,300 stations could be reassigned to new channels is misplaced. These estimates do not include any optimization to minimize channel moves and reduce relocation costs in the final TV channel assignment plan. Therefore, these results are not representative of the final number of stations that will be required to move, which we expect to be significantly lower as a result of optimization. Likewise, Affiliates Associations' concern that optimization may not reduce the number of stations repacked enough to bring the total costs below $1.75 billion does not account for the ability of the optimization process to avoid reassignments of stations with high anticipated relocation costs, thereby reducing the total cost of repacking. In light of these initiatives, we have no reason, at this time, to believe the Fund will be insufficient to cover all eligible relocation costs.

    114. Contrary to Block Stations' contention, the “all reasonable efforts” mandate in section 1452(b)(2) does not require us to limit the number of repacked stations based on concerns about the sufficiency of the Fund. Section 1452(b)(2) applies “[i]n making any reassignments or reallocations” under section 1452(b)(1)(B). “Reassignments and reallocations” are “ma[de]” during the repacking process, and become “effective” after “the completion of the reverse auction . . . and the forward auction,” specifically upon release of the Channel Reassignment PN. Although the Commission's efforts to fulfill the statutory mandate include post-auction measures available to remedy losses in coverage area or population served that individual stations may experience, the mandate itself does not extend to the reimbursement process, which will occur after the Commission has made the reassignments and reallocations for which the statute provides.

    115. We are not persuaded by Affiliates Associations' argument that participation in the reverse auction might become involuntary for broadcasters if there is a risk that they could potentially incur out-of-pocket expenses. As discussed in the Incentive Auction R&O, Congress allocated $1.75 billion of the auction proceeds to cover repacking costs. The Spectrum Act expressly provides that broadcasters' participation in the reverse auction is voluntary, but the repacking process is not voluntary. Other than suggesting that the Commission could be “putting its thumb on the scale” in favor of auction participation as broadcasters weigh their options, Affiliates Associations offers no evidence that, notwithstanding the $1.75 billion set aside to compensate broadcasters for reasonable relocation costs, broadcasters who would otherwise remain on the air will be motivated to participate in the reverse auction out of concern they will not be fully compensated for their relocation expenses. For the reasons stated above, we believe that the optimization process will enhance the sufficiency of the $1.75 billion Fund by reducing both the overall number of stations repacked and the number of particularly expensive channel moves.

    116. We decline Affiliates Associations' request to reconsider the conclusion that providing additional funding from auction proceeds beyond the $1.75 billion would be contrary to the express language of the Spectrum Act. Our decision is consistent with the Commission's conclusion in previous auctions that it lacks authority to use auction proceeds to pay incumbents' relocation costs. In this case, section 309 of the Communications Act, as revised, requires $1.75 billion of “the proceeds” of the auction to be deposited in the Reimbursement Fund, and “all other proceeds” to be deposited in the Public Safety Trust Fund and the general fund of the Treasury. While section 1452(i) of the Act provides that “[n]othing in [section 1452(b)] shall be construed to” expand or contract the FCC's authority except as expressly provided, that provision does not qualify the specific direction in section 309 as to funding priorities and the amount of proceeds to be dedicated to relocation costs.

    117. We also deny requests that we mandate that winning forward auction bidders pay for post-auction expenses. First, we find no merit in the argument of ATBA that wireless carriers should reimburse LPTV stations. We agree with CTIA that the Commission is not obligated to provide reimbursement for displaced LPTV stations given Congress' unambiguous definition of “broadcast television licensee,” which includes only full-power television stations and Class A licensees. Because LPTV licensees do not meet the definition of “broadcast station licensee” they are not eligible for reimbursement from any source. Second, we disagree with the Affiliates Associations and NAB that there is relevant precedent for requiring winning forward auction bidders to reimburse relocation expenses of repacked broadcasters. Although in previous auctions the Commission has required winning bidders to cover incumbents' relocation costs pursuant to its broad spectrum management authority, in this case the Spectrum Act contains an explicit provision for the Reimbursement Fund. Congress's adoption of a precise amount for such costs indicates its intention to limit the FCC's authority to order additional reimbursements. In any event, it distinguishes the incentive auction from previous auctions in which the Commission has adopted other measures to address incumbent relocation costs.

    118. The blanket waiver approach advocated by ATBA is inconsistent with the Commission's obligation to analyze waiver petitions to ensure they comply with the statutory requirements. The Spectrum Act's flexible use waiver provision provides a means of reducing demand on the Fund by conditioning petition grant on an agreement to forgo reimbursement, as well as offering broadcasters flexibility in the use of their licensed broadcast spectrum. In the Incentive Auction R&O, we declined to automatically grant service rule waiver requests because we found that, in evaluating a waiver petition, the Media Bureau must determine whether the petition meets the Commission's general waiver standard and complies with the statutory requirements pertaining to interference protection and the provision of one broadcast television program stream at no cost to the public. Similarly, this analysis must be performed for each station seeking a waiver of the Commission's service rules. Therefore, we deny the request of ATBA. We note that a station group may still obtain a waiver for all of its stations if the Media Bureau determines they demonstrate compliance with the relevant statutory provisions.

    2. Stations That Are Not Repacked and Translator Facilities

    119. We decline to exercise our discretionary authority to allow secondary services such as translator stations to claim reimbursement from the Fund, consistent with our decision not to protect these entities in the repacking process. This decision is consistent with Commission precedent to reimburse only primary services that are relocated, not secondary services that are not entitled to protection. Providing reimbursement for translators or other secondary services out of the $1.75 billion Fund would also reduce the amount available to reimburse repacked Class A and full-power stations for their eligible relocation costs. Therefore, we deny this portion of ATBA's petition.

    120. Further, we are not persuaded by Affiliates Associations' argument that we acted inconsistently in declining to reimburse non-reassigned stations directly but allowing MVPDs to be reimbursed from the Fund for expenses related to a particular type of station move (successful high-VHF-to-low-VHF bidders). Although the Spectrum Act does not require reimbursement for either type of expense, they are distinguishable. The MVPD expenses in question arise from our decision to allow high-VHF-to-low-VHF bids, a decision that Congress could not have specifically anticipated. Our exercise of discretion makes MVPDs eligible for reimbursement for the reasonable costs they incur in order to continue to carry broadcast stations that are reassigned as a result of the auction, regardless of the type of bid option exercised by the broadcaster. In contrast, Congress clearly anticipated a distinction between reassigned and non-reassigned broadcasters, expressly providing for reimbursement of the former but not the latter. Moreover, non-repacked broadcasters might nevertheless indirectly benefit from a reimbursement to a reassigned station. We find that our decision was reasonable and will help to preserve limited reimbursement funds.

    3. Reimbursement Timing

    121. We dismiss on procedural grounds Affiliates Associations' request that we delay the completion of the auction until after forward licenses have been issued. The Incentive Auction R&O fully considered the argument by broadcasters that the Commission should delay the close of the forward auction until wireless licenses are assigned. Specifically, we found that this approach would produce uncertainty in the UHF Band transition because the Spectrum Act directs that no reassignments or reallocations may become effective until the completion of the reverse auction and the forward auction. We therefore dismiss the assertion of Affiliates Associations that close of the auction should be contingent on assigning licenses to winning forward auction bidders.

    122. We deny the requests of Affiliates Associations and Gannett for reconsideration of certain aspects of the reimbursement process. In adopting a reimbursement process providing that eligible entities receive an initial allocation of up to 80 percent of their estimated expenses, the Commission concluded that this approach should help ensure that broadcasters and MVPDs do not face an undue financial burden while also reducing the possibility that we allocate more funds than necessary to cover actual relocation expenses. Moreover, this approach takes into consideration the practical limitation that the Commission will have only $1 billion (borrowed from Treasury) to allocate at the beginning of the reimbursement process. Nevertheless, we fully intend to make initial allocations quickly to help broadcasters begin the relocation process.

    123. We also deny requests that we extend the initial three-month deadline for repacked stations to file construction permits and cost estimates. We find that doing so would postpone the award of initial funding allocations, thus making it more difficult for broadcasters to meet construction deadlines. The purpose behind these deadlines is to permit broadcasters to begin construction as quickly as possible. Moreover, the statute requires that reimbursements from the Fund be completed no later than three years after the completion of the forward auction, and extending the filing deadline would compress the period within which disbursements could be made. We disagree with Affiliates Associations that the Media Bureau will be unable to approve the cost estimates and construction permit applications of a large number of stations quickly. With respect to construction permit applications, the Media Bureau has the experience and expertise to process these applications quickly and has adopted expedited processing guidelines for certain applications to further accelerate the approval process. We also plan to hire a reimbursement contractor to assist with processing the cost estimates and actual cost submissions throughout the reimbursement period. In order to make initial allocations, we require all eligible entities to file cost estimates at the three-month deadline because allocations will be calculated based on total cost estimates in relation to the amount available to the Commission at the time. To the extent a broadcaster or MVPD is unable to obtain price quotes by the filing deadline, it can use the predetermined cost estimates published in the Catalog of Eligible Expenses as cost estimate proxies. For these reasons, we retain the three-month deadline for eligible entities to file construction permit applications and reimbursement cost estimates.

    IV. Other Matters

    124. Mako argues that the Incentive Auction R&O violates the National Environmental Policy Act of 1969 (“NEPA”) because it did not include an “Environmental Assessment” (“EA”) with a “No Significant Impact” finding or a full “Environmental Impact Statement” (“EIS”). In addition, International Broadcasting Network (“IBN”) argues without any support that Chairman Wheeler should be recused from this proceeding. We find no evidence whatsoever to support IBN's claim that the Chairman should have recused himself from this proceeding and we therefore we reject this request. We reject this argument. The environmental effects attributable to the rules adopted in the Incentive Auction R&O, including the potential modification of broadcast facilities resulting from channel reassignments and the build-out of facilities in the 600 MHz Band, are already subject to environmental review under our NEPA procedures. Under those procedures, potentially significant environmental effects of proposed facilities will be evaluated on a site-specific basis prior to construction. Adoption of rules in the Incentive Auction R&O has no potentially significant environmental effects—beyond those already subject to site-specific reviews—that the Commission must evaluate in an EA or EIS under NEPA or the Commission's NEPA procedures.

    V. Procedural Matters

    125. Final Regulatory Flexibility Act Analysis. The Commission has prepared a Final Regulatory Flexibility Certification in Appendix C. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that a regulatory flexibility analysis be prepared for notice-and-comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 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 U.S. Small Business Administration (SBA).

    126. In 2012, Congress mandated that the Commission conduct an incentive auction of broadcast television spectrum as set forth in the Middle Class Tax Relief and Job Creation Act of 2012 (“Spectrum Act”). The incentive auction will have three major pieces: (1) A “reverse auction” in which full power and Class A broadcast television licensees submit bids to voluntarily relinquish certain broadcast rights in exchange for payments; (2) a reorganization or “repacking” of the broadcast television bands in order to free up a portion of the ultra-high frequency (“UHF”) band for other uses; and (3) a “forward auction” of licenses for flexible use of the newly available spectrum. In the Incentive Auction R&O, the Commission adopted rules to implement the broadcast television spectrum incentive auction. Among other things, the Commission adopted the use of TVStudy software and certain modified inputs in applying the methodology described in OET-69 to evaluate the coverage area and population served by television stations in the repacking process. Pursuant to the RFA, a Final Regulatory Flexibility Analysis (“FRFA”) was incorporated into the Incentive Auction R&O.

    127. The Second Order on Reconsideration for the most part affirms the decisions made in the Incentive Auction R&O. To the extent the Second Order on Reconsideration revises the Incentive Auction R&O, it does so in a way that benefits both large and small entities, but without imposing any burdens or costs of compliance on such entities. First, the Second Order on Reconsideration modifies two of the input values that the Commission uses when applying the OET-69 methodology. Specifically, the Second Order on Reconsideration revises the vertical antenna pattern inputs for Class A stations in the TVStudy software, which will result in more accurate modeling of the service and interference potential of those stations during the repacking process. It also reduces the minimum effective radiated power (“ERP”) values, or power floors, that the TVStudy software uses to replicate a television station's signal contours when conducting pairwise interference analysis in the repacking process, which will result in greater accuracy. Second, the Second Order on Reconsideration provides that the Commission will make all reasonable efforts to preserve the coverage areas of stations operating pursuant to waivers of the antenna height above average terrain (“HAAT”) or ERP limits set forth in the Commission's rules, provided such facilities are otherwise entitled to protection under the Incentive Auction R&O. Third, in the Incentive Auction R&O, the Commission extended discretionary protection to five stations affected by the destruction of the World Trade Center. In the Second Order on Reconsideration, the Commission extends this protection to an additional station, WNJU, Linden, New Jersey. Fourth, we exercise discretion to protect stations that hold a Class A license today and that had an application for a Class A construction permit pending or granted as of February 22, 2012. Fifth, we revise our consumer education requirements to provide stations changing channels as a result of the incentive auction and repacking additional flexibility to determine the timeslots to air their consumer education public service announcements.

    128. None of these changes to the Incentive Auction R&O adopted in the Second Order on Reconsideration will impose additional costs or impose additional record keeping requirements on either small or large entities. Therefore, we certify that the changes adopted in this Second Order on Reconsideration will not have a significant economic impact on a substantial number of small entities.

    129. The Commission will send a copy of the Second Order on Reconsideration, including a copy of this Final Regulatory Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). In addition, the Second Order on Reconsideration and this certification will be sent to the Chief Counsel for Advocacy of the Small Business Administration, and will be published in the Federal Register. See 5 U.S.C. 605(b).

    130. Congressional Review Act. The Commission will send a copy of this Second Order on Reconsideration to Congress and the Government Accountability Office pursuant to the Congressional Review Act.

    VII. Ordering Clauses

    131. It is ordered, pursuant to the authority found in sections 1, 4, 301, 303, 307, 308, 309, 310, 316, 319, 325(b), 332, 336(f), 338, 339, 340, 399b, 403, 534, and 535 of the Communications Act of 1934, as amended, and sections 6004, 6402, 6403, 6404, and 6407 of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, 126 Stat. 156, 47 U.S.C. 151, 154, 301, 303, 307, 308, 309, 310, 316, 319, 325(b), 332, 336(f), 338, 339, 340, 399b, 403, 534, 535, 1404, 1452, and 1454, this Second Order on Reconsideration in GN Docket No. 12-268 is adopted.

    132. It is further ordered that, pursuant to section 405 of the Communications Act of 1934, as amended, 47 U.S.C. 405, and section 1.429 of the Commission's rules, 47 CFR 1.429, the Petition for Reconsideration filed by ABC Television Affiliates Association, CBS Television Network Affiliates Association, FBC Television Affiliates Association, and NBC Television Affiliates, is granted in part and denied in part to the extent described herein

    133. It is further ordered that, pursuant to section 405 of the Communications Act of 1934, as amended, 47 U.S.C. 405, and section 1.429 of the Commission's rules, 47 CFR 1.429, the Petition for Reconsideration filed by NBC Telemundo License, LLC, as clarified on April 7, 2015, is granted to the extent described herein.

    134. It is further ordered that, pursuant to section 405 of the Communications Act of 1934, as amended, 47 U.S.C. 405, and section 1.429 of the Commission's rules, 47 CFR 1.429, the Petition for Reconsideration filed by the Walt Disney Company is granted to the extent described herein.

    135. It is further ordered that, pursuant to section 405 of the Communications Act of 1934, as amended, 47 U.S.C. 405, and section 1.429 of the Commission's rules, 47 CFR 1.429, the Petition for Reconsideration filed by Dispatch Printing Company is granted to the extent described herein.

    136. It is further ordered that, pursuant to section 405 of the Communications Act of 1934, as amended, 47 U.S.C. 405, and section 1.429 of the Commission's rules, 47 CFR 1.429, the Petition for Reconsideration filed by Cohen, Dippell, and Everist, P.C is granted in part and denied in part to the extent described herein.

    137. It is further ordered that, pursuant to section 405 of the Communications Act of 1934, as amended, 47 U.S.C. 405, and section 1.429 of the Commission's rules, 47 CFR 1.429, the Petitions for Reconsideration filed by Advanced Television Broadcasting Alliance; and Gannett Co., Inc., Graham Media Group, and ICA Broadcasting are denied in part to the extent described herein.

    138. It is further ordered that, pursuant to section 405 of the Communications Act of 1934, as amended, 47 U.S.C. and 405, and section 1.429 of the Commission's rules, 47 CFR 1.429, the Petitions for Reconsideration filed by Abacus Television; American Legacy Foundation; Artemis Networks LLC; Association of Public Television Stations, Corporation for Public Broadcasting, and Public Broadcasting Service; Beach TV Properties, Inc.; Block Communications, Inc.; Bonten Media Group, Inc. and Raycom Media, Inc.; Competitive Carriers Association; Free Access & Broadcast Telemedia, LLC; GE Healthcare; International Broadcasting Network; the LPTV Spectrum Rights Coalition; Mako Communications, LLC; Media General, Inc.; Radio Television Digital News Association; Sennheiser Electronic Corporation; Signal Above, LLC; Qualcomm Inc.; T-Mobile USA, Inc.; U.S. Television, LLC; The Videohouse, Inc.; and the WMTS Coalition are dismissed and/or denied to the extent described herein.

    139. It is further ordered that the Petition for Leave to File Supplemental Reconsideration filed by Abacus Television on November 12, 2014 and the Petition for Leave to Amend filed by the LPTV Coalition on November 12, 2014 are denied.

    140. It is further ordered that the Motion for Leave to File Supplement to Petition for Reconsideration filed by Free Access and Broadcast Telemedia, LLC on December 15, 2014 is denied.

    141. It is further ordered that the Commission's rules are hereby amended as set forth in the Final Rules and will become effective September 8, 2015 except for § 73.3700(c)(6) which contains new or modified information collection requirements that have not be approved by OMB. The Federal Communications Commission will publish a document announcing the effective date.

    142. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Second Order on Reconsideration in GN Docket No. 12-268, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

    143. It is further ordered that the Commission shall send a copy of this Second Order on Reconsideration in GN Docket No. 12-268 in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    List of Subjects in 47 CFR Part 73

    Administrative practice and procedure, Communications common carriers, Radio, Telecommunications.

    Federal Communications Commission. Marlene H. Dortch, Secretary. Final rules

    For the reasons stated in the preamble, the Federal Communications Commission amends 47 CFR part 73 as set forth below:

    PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority:

    47 U.S.C. 154, 303, 334, 336 and 339

    2. Section 73.3700 paragraph (c) is revised to read as follows:
    § 73.3700 Post-incentive auction licensing and operation.

    (c) Consumer education for transitioning stations. (1) License relinquishment stations that operate on a commercial basis will be required to air at least one Public Service Announcement (PSA) and run at least one crawl in every quarter of every day for 30 days prior to the date that the station terminates operations on its pre-auction channel. One of the required PSAs and one of the required crawls must be run during prime time hours (for purposes of this section, between 8:00 p.m. and 11:00 p.m. in the Eastern and Pacific time zones, and between 7:00 p.m. and 10:00 p.m. in the Mountain and Central time zones) each day.

    (2) Noncommercial educational full power television license relinquishment stations may choose to comply with these requirements in paragraph (c)(1) of this section or may air 60 seconds per day of on-air consumer education PSAs for 30 days prior to the station's termination of operations on its pre-auction channel.

    (3) Transitioning stations, except for license relinquishment stations, must air 60 seconds per day of on-air consumer education PSAs or crawls for 30 days prior to the station's termination of operations on its pre-auction channel.

    (4) Transition crawls. (i) Each crawl must run during programming for no less than 60 consecutive seconds across the bottom or top of the viewing area and be provided in the same language as a majority of the programming carried by the transitioning station.

    (ii) Each crawl must include the date that the station will terminate operations on its pre-auction channel; inform viewers of the need to rescan if the station has received a new post-auction channel assignment; and explain how viewers may obtain more information by telephone or online.

    (5) Transition PSAs. (i) Each PSA must have a duration of at least 15 seconds.

    (ii) Each PSA must be provided in the same language as a majority of the programming carried by the transitioning station; include the date that the station will terminate operations on its pre-auction channel; inform viewers of the need to rescan if the station has received a new post-auction channel assignment; explain how viewers may obtain more information by telephone or online; and for stations with new post-auction channel assignments, provide instructions to both over-the-air and MVPD viewers regarding how to continue watching the television station; and be closed-captioned.

    (6) Licensees of transitioning stations, except for license relinquishment stations, must place a certification of compliance with the requirements in paragraph (c) of this section in their online public file within 30 days after beginning operations on their post-auction channels. Licensees of license relinquishment stations must include the certification in their notification of discontinuation of service pursuant to § 73.1750 of this chapter.

    [FR Doc. 2015-19281 Filed 8-5-15; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 192, 193, and 195 [Docket No. PHMSA-2011-0337; Amdt. Nos. 192-119; 193-25; 195-99] RIN 2137-AE85 Pipeline Safety: Periodic Updates of Regulatory References to Technical Standards and Miscellaneous Amendments; Corrections AGENCY:

    Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).

    ACTION:

    Correcting amendments.

    SUMMARY:

    PHMSA published in the Federal Register of January 5, 2015 (80 FR 168), a document containing revisions to the Pipeline Safety Regulations. That document inadvertently removed paragraphs (b)(1) through (b)(4) in 49 CFR 192.153. This document removes that amendment and makes several editorial changes.

    DATES:

    This amendment is effective August 6, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Technical Information: Mike Israni by phone at 202-366-4571 or by email at [email protected].

    Regulatory Information: Cheryl Whetsel by phone at 202-366-4431 or by email at [email protected].

    SUPPLEMENTARY INFORMATION:

    PHMSA published in the Federal Register of January 5, 2015 (80 FR 168), a document containing revisions to the Pipeline Safety Regulations. That document inadvertently removed paragraphs (b)(1) through (b)(4) in 49 CFR 192.153; incorrectly listed a cross-reference in § 193.2321(b)(1); incorrectly formatted the word “see” in various sections in parts 192, 193, and 195; and specified an incorrect authority citation in part 193. This document corrects the final regulations to address these issues.

    List of Subjects 49 CFR Part 192

    Incorporation by reference, Natural gas, Pipeline safety.

    49 CFR Part 193

    Incorporation by reference, Liquefied natural gas, Pipeline safety.

    49 CFR Part 195

    Anhydrous ammonia, Carbon dioxide, Incorporation by reference, Petroleum pipeline safety.

    In consideration of the foregoing, PHMSA amends 49 CFR parts 192, 193, and 195 as follows:

    PART 192—TRANSPORTATION OF NATURAL AND OTHER GAS BY PIPELINE: MINIMUM FEDERAL SAFETY STANDARDS 1. The authority citation for part 192 is revised to read as follows: Authority:

    49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60110, 60113, 60116, 60118 and 60137; and 49 CFR 1.53.

    § 192.55, 192.191, 192.735, 192.923, 192.933, and Appendix B to Part 192 [Amended]
    2. In 49 CFR part 192, remove “(incorporated by reference, see § 192.7)” and add in its place “(incorporated by reference, see § 192.7)” everywhere it appears in the following sections: a. Section 192.55(e); b. Section 192.735(b); c. Section 192.923(b)(1); d. Section 192.933(d)(1)(i); and e. Appendix B to part 192.
    § 192.11 [Amended]
    3. In § 192.11: a. Amend paragraph (a) by removing “NFPA 58 and 59” and adding in its place “NFPA 58 and NFPA 59”. b. Amend paragraph (c) by removing “NFPA 58 and 59” and “ANSI/NFPA 58 and 59” and adding in their place the terms “NFPA 58 and NFPA 59”.
    4. In § 192.153, paragraphs (b)(1), (2), (3), and (4) are added to read as follows:
    § 192.153 Components fabricated by welding.

    (b) * * *

    (1) Regularly manufactured butt-welding fittings.

    (2) Pipe that has been produced and tested under a specification listed in appendix B to this part.

    (3) Partial assemblies such as split rings or collars.

    (4) Prefabricated units that the manufacturer certifies have been tested to at least twice the maximum pressure to which they will be subjected under the anticipated operating conditions.

    PART 193—LIQUEFIED NATURAL GAS FACILITIES: FEDERAL SAFETY STANDARDS 5. The authority citation for part 193 continues to read as follows: Authority:

    49 U.S.C. 5103, 60102, 60103, 60104, 60108, 60109, 60110, 60113, 60118; and 49 CFR 1.53.

    § 193.2321 [Amended]
    6. In § 193.2321, amend paragraph (b)(1) by removing “(incorporated by reference, see § 193. 2012)” and adding in its place “(incorporated by reference, see § 193.2013).”
    PART 195—TRANSPORTATION OF HAZARDOUS LIQUIDS BY PIPELINE 7. The authority citation for part 195 continues to read as follows: Authority:

    49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60116, 60118 and 60137; and 49 CFR 1.53.

    §§ 195.132, 195.205, 195.264, 195.405, and 195.432 [Amended]
    8. In 49 CFR part 195, remove “(incorporated by reference, see § 195.3)” and add in its place “(incorporated by reference, see § 195.3)” everywhere it appears in the following sections: a. Section 195.132(b)(1); b. Section 195.205(b)(1) and (2); c. Section 195.264(b)(2) and (e)(1) and (3); d. Section 195.405(b); and e. Section 195.432(c).
    Issued in Washington, DC, on July 24, 2015, under authority delegated in 49 CFR Part 1.97. Stacy Cummings, Interim Executive Director.
    [FR Doc. 2015-18565 Filed 8-5-15; 8:45 am] BILLING CODE 4910-60-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 140117052-4402-02] RIN 0648-XE077 Fisheries of the Northeastern United States; Atlantic Bluefish Fishery; Quota Transfer AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Temporary rule; quota transfer.

    SUMMARY:

    NMFS announces that the State of North Carolina is transferring a portion of its 2015 commercial Atlantic bluefish quota to the Commonwealth of Massachusetts. These quota adjustments are necessary to comply with the Bluefish Fishery Management Plan quota transfer provision. This announcement informs the public of the revised commercial quota for each state involved.

    DATES:

    Effective August 5, 2015, through December 31, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Reid Lichwell, Fishery Management Specialist, (978) 281-9112.

    SUPPLEMENTARY INFORMATION:

    Regulations governing the bluefish fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from Florida through Maine. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.162.

    The final rule implementing Amendment 1 to the Bluefish Fishery Management Plan published in the Federal Register on July 26, 2000 (65 FR 45844), provided a mechanism for transferring bluefish quota from one state to another. Two or more states, under mutual agreement and with the concurrence of the Administrator, Greater Atlantic Region, NMFS (Regional Administrator), can transfer or combine bluefish commercial quota under § 648.162(e). The Regional Administrator is required to consider the criteria in § 648.162(e)(1) in the evaluation of requests for quota transfers or combinations.

    North Carolina has agreed to transfer 200,000 lb (90,719 kg) of its 2015 commercial quota to Massachusetts. This transfer was prompted by state officials in Massachusetts to ensure their commercial bluefish quota is not exceeded. The Regional Administrator has determined that the criteria set forth in § 648.162(e)(1) are met. The revised bluefish quotas for calendar year 2015 are: North Carolina, 1,480,371 lb (671,485 kg); and Massachusetts, 552,036 lb (250,399 kg), based on the final 2015 Atlantic Bluefish Specifications.

    Classification

    This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: August 3, 2015. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-19486 Filed 8-5-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 150126074-5655-02] RIN 0648-XD742 Fisheries of the Northeastern United States; Atlantic Bluefish Fishery; 2015 Atlantic Bluefish Specifications AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    NMFS is implementing final specifications for the 2015 Atlantic bluefish fishery, including catch restrictions for commercial and recreational fisheries. This action is necessary to establish the 2015 harvest limits and management measures to prevent overfishing. The intent of the action is to inform the public of the 2015 catch limits and state-to-state commercial quota transfers consistent with the Atlantic Bluefish Fishery Management Plan and the recommendations of the Mid-Atlantic Fishery Management Council. NMFS is also approving transfers of commercial bluefish quota from the Commonwealth of Virginia and the State of Florida to the State of New York to ensure New York quota would not be exceeded.

    DATES:

    The final specifications and state-to-state commercial quota transfers for the 2015 bluefish fishery are effective August 5, 2015, through December 31, 2015.

    ADDRESSES:

    Copies of the specifications document, including the Environmental Assessment and Initial Regulatory Flexibility Analysis (EA/IRFA) and other supporting documents for the specifications, are available from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 N. State Street, Dover, DE 19901. The specifications document is also accessible via the Internet at: http://www.greateratlantic.fisheries.noaa.gov.

    FOR FURTHER INFORMATION CONTACT:

    Reid Lichwell, Fishery Management Specialist, (978) 281-9112.

    SUPPLEMENTARY INFORMATION: Background

    The Atlantic bluefish fishery is jointly managed by the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission. The management unit for bluefish specified in the Atlantic Bluefish Fishery Management Plan is U.S. waters of the western Atlantic Ocean. Regulations implementing the FMP appear at 50 CFR part 648, subparts A and J. The regulations requiring annual specifications are found at § 648.162, and are described in the proposed rule. The proposed rule for this action published in the Federal Register on April 27, 2015 (80 FR 23249), and comments were accepted through May 12, 2015.

    Final Specifications

    A description of the process used to estimate bluefish stock status and fishing mortality, as well as the process for deriving the annual catch limit (ACL) and associated quotas and harvest limits, is provided in the proposed rule and in the bluefish regulations at §§ 648.160 through 648.162. The stock is not overfished or experiencing overfishing, and the catch limits described below reflect the best available scientific information for bluefish. The final 2015 bluefish acceptable biological catch (ABC), ACL, and Annual Catch Target (ACT) are specified at 21.544 million lb (9,772 mt).

    The ACT is initially allocated between the recreational fishery (83 percent) and the commercial fishery (17 percent). After deducting 3.351 million lb (1,520 mt) to adjust for recreational discards (commercial discards are considered negligible), the recreational Total Allowable Landings (TAL) is 14.530 million lb (6,591 mt) and the commercial TAL is 3.662 million lb (1,661 mt).

    A transfer of quota from the recreational to the commercial sector is permitted under the FMP because the initial commercial fishery ACT is less than 10.50 million lb (4,763 mt) and the recreational fishery is not projected to land its harvest limit in 2015.

    The recreational landings for 2015 are projected to be 12.951 million lb (5,875 mt). This projection was based on the average recreational landings from 2012 through 2014, including final 2014 Marine Recreational Information Program data that became available after the publication of the proposed rule. With the addition of updated and final recreational landings data, the projected 2015 recreational landings (12.951 million lb; 5,875 mt) are lower than what was published in the proposed rule (13.073 million lb; 5,930 mt). We are implementing a revised transfer of 1.579 million lb (716 mt) from the recreational to the commercial sector in the final rule. This updated final transfer results in an adjusted 2015 commercial quota of 5.241 million lb (2,377 mt), a 35-percent decrease from 2014 (7.458 million lb; 3,383 mt), and an adjusted 2015 RHL of 12.951 million lb (5,875 mt), a 4.3-percent decrease from the 2014 RHL (13.523 million lb; 6,133 mt). Consistent with Council recommendations, these final specifications do not allocate research set-aside quota for 2015; therefore, no additional adjustments to commercial or recreational allocations are needed.

    The final rule implementing Amendment 1 to the Bluefish Fishery Management Plan, which was published in the Federal Register on July 26, 2000 (65 FR 45844), provided a mechanism for bluefish quota to be transferred from one state to another. Two or more states, under mutual agreement and with the concurrence of the Administrator, Greater Atlantic Region, NMFS (Regional Administrator), can transfer or combine bluefish commercial quota under § 648.162(e). The Regional Administrator is required to consider the criteria in § 648.162(e)(1) in the evaluation of requests for quota transfers or combinations.

    During the processing of this final rule, the Commonwealth of Virginia and the State of Florida each requested we transfer 150,000 lb (68,039 kg) to the State of New York to help ensure the NY state quota would not be exceeded. The state commercial transfers will not preclude the overall annual quota from being fully harvested, and will also address contingencies in the fishery. In addition, the transfer is consistent with the objectives of the FMP and the Magnuson-Stevens Fishery Conservation and Management Act. These transfers have been approved and are incorporated within this final rule and the individual state quota allocations have been adjusted to reflect the transfers. The final bluefish quotas are shown in Table 1.

    Final Recreational Possession Limit

    Consistent with the recommendation by the Council, this final rule maintains the status quo daily recreational possession limit of up to 15 fish per person for 2015.

    Final State Commercial Allocations

    The final state commercial allocations, including the previously outlined transfers, for the recommended 2015 commercial quota are shown in Table 1. The initial quotas are based on the percentages specified in the FMP. There were no states that exceeded their quota in 2014; therefore, no accountability measures are being implemented for the 2015 fishing year.

    Table 1—Final Bluefish Commercial State-by-State Allocations for 2015 State Percent share 2015 Commercial quota (lb) before transfer 2015 Transfer of commercial quota (lb) as of 7/10/2015 Final 2015 commercial quota (lb) Final 2015 commercial quota (kg) ME 0.6685 35,037 35,037 15,893 NH 0.4145 21,725 21,725 9,854 MA 6.7167 352,036 352,036 159,682 RI 6.8081 356,826 356,826 161,855 CT 1.2663 66,369 66,369 30,105 NY 10.3851 544,304 +300,000 844,304 382,970 NJ 14.8162 776,547 776,547 352,239 DE 1.8782 98,440 98,440 44,652 MD 3.0018 157,330 157,330 71,365 VA 11.8795 622,629 −150,000 472,629 214,380 NC 32.0608 1,680,371 1,680,371 762,211 SC 0.0352 1845 1,845 837 GA 0.0095 498 498 226 FL 10.0597 527,249 −150,000 377,249 171,117 Total 100.0001 5,241,202 5,241,202 2,377,394 Comments and Responses

    The public comment period for the proposed rule ended on May 12, 2015. There were 19 comments that resulted in 9 groups of substantive comments received from the public, including recreational and commercial fishermen, in regards to the proposed rule. Three comments were non-substantive and did not address this rule or the subject matter related to the rule.

    Comment 1: One commenter generally criticized NMFS and the data used to set catch limits. The commenter did not suggest other data or approaches that might be better suited for establishing specifications.

    Response: Consistent with National Standard 2 of the MSA, NMFS used the best scientific information available and is approving specifications for the bluefish fishery. The most up-to-date stock assessment and recreational and commercial catch data were used. The final specifications in this rule are consistent with the FMP and recommendations of the Council.

    Comment 2: One commenter expressed concern regarding the economic effects that this rule would have on the recreational sector, specifically party and charter/head boat businesses. The commenter suggested there should be an increase in quota specifically for charter/head boats.

    Response: NMFS disagrees that a quota increase for charter and party vessels is needed. The 2015 specifications have been established following the procedures set forth in the FMP, which does not allocate bluefish harvest between sectors of the recreational fishery. Marine Recreational Information Program (MRIP) catch data by mode for 2013 indicate that approximately 59 percent of bluefish were caught from shore, 34 percent of bluefish were caught from private and rental boats, and 7 percent from party and charter boats. The 2015 RHL represents approximately 71 percent of the coastwide total allowable landings for bluefish when accounting for transfers, which are expected to be equivalent to recent observed recreational harvest across all sectors (shore, private, charter, etc.). As such, the 2015 RHL is not likely to constrain party or charter fishing opportunity or catch. According to the analyses in the EA supporting this action (see ADDRESSES), the economic impacts of these specifications have neutral to slightly negative impacts that are not expected to be significant to any component of the recreational fishery.

    Comment 3: One commenter suggested that with the decrease in private angler and for-hire effort, there should be no reduction in the bluefish recreational quota.

    Response: NMFS disagrees. The RHL is set to equal the expected recreational catch for 2015. NMFS calculates the expected catch by averaging the yearly recreational landing over a three-year period (2012-2014) using MRIP data. Although the 2014 RHL is less than the 2015 RHL, the fishery is projected to catch less bluefish recreationally during 2015. Therefore, the RHL is not likely to constrain or limit recreational fishing opportunity in 2015.

    Comment 4: Three commenters requested clarification for the decision to reduce the ACL, given that the bluefish stock is not currently being overfished.

    Response: Although the bluefish stock is not currently overfished or experiencing overfishing, estimated biomass has declined slightly in recent years. Based upon the results of the 2014 assessment update for bluefish, the Council's Scientific and Statistical Committee (SSC) recommended a reduction in the ABC for 2015. This reduction is necessary to reduce the risk of overfishing the stock.

    Comment 5: Three commenters, including an operator of a party boat that targets bluefish, agreed with NMFS that the current recreational bag limit of 15 bluefish per person per day should remain unchanged for the 2015 fishing year.

    Response: NMFS agrees and has retained the Council's recommendation that the status quo recreational bag limit of 15 bluefish per person, per day remain in place for the 2015 fishing year.

    Comment 6: Five commenters stated that the bluefish specifications should remain unchanged from the 2014 fishing year. The comments offered no suggestions on why specifications should remain unchanged.

    Response: NMFS disagrees that the status quo bluefish specifications would be appropriate for 2015. As outlined in the response to comment number 3, the bluefish biomass has declined. The specifications in place for 2014 would be expected to result in negative biological impacts to the bluefish stock. If the 2014 catch limits remain in place for 2015 and were fully achieved, it would result in catches above the ABC recommended by the SSC, and could result in overfishing. Under National Standard 1 guidelines, the Council cannot recommend catch limits higher than the ABC recommended by its SSC.

    Comment 7: Two commenters expressed concern that the 2015 specifications imposed regulations that were too severe and would have an adverse effect on small businesses in the commercial sector.

    Response: According to the economic analyses in the EA (see ADDRESSES), the impacts of the 2015 specifications are not expected to be significant. Although there are 1,009 affiliate firms that caught bluefish from 2011 to 2013, of those, 1,001 were considered small business entities and bluefish comprised a very small amount of their annual gross revenues, averaging 0.63 percent.

    The 2015 commercial bluefish quota is lower than the commercial quota implemented in 2014. However, the 2015 quota is higher than the realized commercial landings for 2014. Under the 2015 commercial quota, it is expected that commercial bluefish fishermen would likely land bluefish similarly to 2014 landings. Furthermore, the Bluefish FMP permits states to transfer bluefish quota to each other as a tool to mitigate the potential adverse economic impacts of a fishery closure in a particular state.

    Comment 8: One commenter expressed concern that offshore fleets outside of the Exclusive Economic Zone (EEZ) are having an adverse impact on bluefish abundance. The commenter suggested that the EEZ border be expanded to improve U.S. fish stocks.

    Response: NMFS recognizes that a small amount of bluefish are caught outside the U.S. EEZ. Bluefish stock assessments are based on data collected from within EEZ and changes in stock biomass from a variety of sources, including international fishing pressures, are part of the assessment. Changes to the EEZ boundaries would be beyond the scope of this rule.

    Comment 9: One commenter inquired about the reduction in the commercial quota compared to a smaller reduction in the recreational TAL. The commenter asked if there could be a more equitable split in quota reduction to accomplish the same conservation goals.

    Response: Bluefish catch is allocated between the recreational and commercial fisheries according to specific requirements in the Bluefish FMP, as described in the EA (see ADDRESSES). Allocation changes can be addressed by the Council through an FMP amendment. Apart from the previously described transfer, NMFS has no authority to alter allocations between the commercial and recreational sector. How the 2015 specifications were derived is explained in detail in the preamble of this rule and the proposed rule (80 FR 23249).

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the Atlantic Bluefish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

    This final rule is exempt from review under Executive Order 12866.

    This final rule does not duplicate, conflict, or overlap with any existing Federal rules.

    The Assistant Administrator for Fisheries finds there is a need to implement these measures in an timely manner in order to help achieve conservation objectives for the bluefish fishery which constitutes good cause, under authority contained in 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness and to make the 2015 Atlantic bluefish specifications effective immediately upon filing with the Office of the Federal Register.

    The bluefish fishing year began on January 1, 2015, and has been operating without an established bluefish quota. Until this final rule becomes effective, there will be no established bluefish quota for 2015 and therefore no authority to close a fishery approaching a quota limit. A 30-day delay in implementing this final rule would delay the setting of quota used to properly manage and monitor bluefish stocks at the state and federal level. Development of this final rule was undertaken as quickly as possible; however, incorporating the most up-to-date MRIP data necessarily created a delay while analysis occurred.

    This final rule also implements two quota transfers of commercial bluefish quota from the Commonwealth of Virginia and the State of Florida to the State of New York to ensure New York does not exceed its 2015 commercial quota.

    The FRFA included in this final rule was prepared pursuant to 5 U.S.C. 604(a), and incorporates the IRFA and a summary of analyses completed to support the action. A public copy of the EA/IRFA is available from the Council (see ADDRESSES).

    The preamble to the proposed rule included a detailed summary of the analyses contained in the IRFA, and that discussion is not repeated here.

    Final Regulatory Flexibility Analysis A Summary of the Significant Issues Raised by the Public in Response to the IRFA, a Summary of the Agency's Assessment of Such Issues, and a Statement of Any Changes Made in the Final Rule as a Result of Such Comments

    The comments NMFS received did not raise specific issues, but commented generally on the economic analyses summarized in the IRFA. Refer to the “Comments and Responses” section of this preamble for more detail. No changes to the proposed rule were required to be made as a result of public comment.

    Description and Estimate of Number of Small Entities to Which the Rule Will Apply

    The Small Business Administration (SBA) defines a small business in the commercial harvesting sector as a firm with receipts (gross revenues) of up to $5.5 million for shellfish and $20.5 million for finfish businesses. A small business in the recreational fishery is a firm with receipts of up to $7.5 million.

    According to the 2011-2013 Northeast affiliate ownership database, 1,009 fishing businesses or affiliated firms (vessels grouped together by a common owner) landed bluefish during the 2011-2013 period, with 1,001 of those businesses categorized as small businesses and 8 categorized as large businesses. South Atlantic Trip Ticket reports identified 790 vessels that landed bluefish in North Carolina and 1,338 vessels that landed bluefish on Florida's east coast in 2013.1 Bluefish landings in South Carolina and Georgia were near zero in 2013, representing a negligible proportion of the total bluefish landings along the Atlantic Coast. In recent years, approximately 2,000 party/charter vessels have been active in the bluefish fishery and/or have caught bluefish.

    1 Some of these vessels were also identified in the Northeast dealer data; therefore, double counting is possible.

    Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

    No additional reporting, recordkeeping, or other compliance requirements are included in this final rule.

    Description of the Steps the Agency Has Taken To Minimize the Significant Economic Impact on Small Entities Consistent With the Stated Objectives of Applicable Statutes

    Specification of commercial quota, recreational harvest levels, and possession limits is constrained by the conservation objectives set forth in the FMP and implemented at 50 CFR part 648 under the authority of the Magnuson-Stevens Act. With the specification options considered, the measures in this final rule are the only measures that both satisfy these overarching regulatory and statutory requirements while minimizing, to the extent possible, impacts on small entities. The 2015 commercial quota implemented by this final rule is 35 percent lower than the 2014 quota, but higher than actual 2014 bluefish landings. All affected states will receive decreases in their individual commercial quota allocations. The magnitude of the decrease varies depending on the state's relative percent share in the total commercial quota, as specified in the FMP. The states have the ability to transfer commercial quota from one state to another; although the use of this management measure cannot be predicted, it is often used to prevent quota overages in the commercial sector and can minimize the economic impacts associated with a quota allocation.

    The 2015 RHL contained in this final rule is approximately 4.3 percent lower than the RHL in 2014. The 2015 RHL is greater than the total recreational bluefish harvested in 2014, and therefore it does not constrain recreational bluefish harvest below a level that the fishery is anticipated to achieve. The possession limit for bluefish will remain at 15 fish per person, so there should be no impact on demand for party/charter vessel fishing and, therefore, no impact on revenues earned by party/charter vessels. No negative economic impacts on the recreational fishery are anticipated.

    Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide will be sent to all holders of Federal permits issued for the Atlantic bluefish fishery.

    In addition, copies of this final rule and guide (i.e., permit holder letter) are available from NMFS (see ADDRESSES) and at the following Web site: www.greateratlantic.fisheries.noaa.gov.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: July 31, 2015. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2015-19269 Filed 8-5-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 150316270-5662-02] RIN 0648-XD843 Fisheries Off West Coast States; West Coast Salmon Fisheries; 2015 Management Measures; Correction AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Final rule; correcting amendment.

    SUMMARY:

    On May 5, 2015, NMFS published a final rule to implement fishery management measures for the 2015 ocean salmon fisheries off the coast of the states of Washington, Oregon, and California under the jurisdiction of the Pacific Fisheries Management Council (Council). This correcting amendment changes the date of an area closure in the recreational salmon fishery that was incorrect in the original rule; this will make the Federal rule consistent with State regulations.

    DATES:

    This correction is effective August 10, 2015, until the effective date of the 2016 management measures, as published in the Federal Register.

    FOR FURTHER INFORMATION CONTACT:

    Peggy Mundy at 206-526-4323.

    SUPPLEMENTARY INFORMATION:

    Need for Correction

    On May 5, 2015, NMFS published a final rule (80 FR 25611) that implemented the fishery management measures for the 2015 ocean salmon fisheries off the coasts of the states of Washington, Oregon, and California under the jurisdiction of the (Council). On page 25620, in the first column, under the subheading “—Queets River to Leadbetter Point (Westpoint Subarea),” in the second paragraph, fifth sentence, an incorrect date was provided for the closure of the Grays Harbor Control Zone. Under Washington State regulations, the Grays Harbor Control Zone is closed beginning the second Monday in August. The Federal fishery management measures for the 2015 ocean salmon fisheries were intended to be consistent with the Washington State regulations and to include the same closing date. In 2015, the second Monday in August is August 10. However, the date for the second Monday in August in 2014 (August 11) was inadvertently left in the management measures for 2015, as originally published. To be consistent with the state regulations, as was intended, the correct date of the Grays Harbor Control Zone closure in 2015 is August 10, 2015. This rule corrects the closure date for the Grays Harbor Control Zone in 2015, from “August 11” to “August 10.” This correction was discussed during an inseason consultation among NMFS, the Council, Washington Department of Fish and Wildlife, Oregon Department of Fish and Wildlife, Salmon Advisory Subpanel, and Salmon Technical Team on July 21, 2015. Also, the date is correct in state regulations. Therefore, this correction is anticipated by the public and the regulatory agencies and its implementation will cause no harm.

    Correction

    In the Federal Register of May 5, 2015 (80 FR 25611), on page 25620, under the subheading “—Queets River to Leadbetter Point (Westport Subarea)”, the second paragraph, fifth sentence is corrected to read as follows:

    “Grays Harbor Control Zone closed beginning August 10 (C.4.b).”

    Classification

    Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries (AA) finds there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be unnecessary and contrary to public interest. Notice and comment are unnecessary and contrary to the public interest because this action corrects an inadvertent error in regulations for a fishery that opened on July 1, and immediate notice of the error and correction is necessary to prevent confusion among participants in the fishery that could result from the existing conflict between state regulations and the final rule. This error was called to NMFS' attention on July 21, 2015. To effectively correct the error, this correction must be done as soon as possible prior to August 10, the date when the Grays Harbor Control Zone should be closed. There is not sufficient time for a notice and comment rulemaking prior to August 10. In addition, this action makes only a minor change to the dates of the fishery.

    This correction will not affect the results of analyses conducted to support management decisions in the salmon fishery nor change the total catch of salmon. No change in operating practices in the fishery is required. For the same reasons, the AA has determined that good cause exists to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d). Because prior notice and an opportunity for public comment are not required to be provided for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. Accordingly, no Regulatory Flexibility Analysis is required for this rule and none has been prepared.

    This final rule is not significant under Executive Order 12866.

    Authority:

    16 U.S.C. 773-773k; 1801 et seq.

    Dated: July 31, 2015. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2015-19268 Filed 8-5-15; 8:45 am] BILLING CODE 3510-22-P
    80 151 Thursday, August 6, 2015 Proposed Rules DEPARTMENT OF AGRICULTURE Rural Housing Service 7 CFR Part 3560 RIN 0575-AC98 Multi-Family Housing Program Requirements To Reduce Financial Reporting Requirements AGENCY:

    Rural Housing Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Rural Housing Service (RHS) is proposing to amend regulations to change program requirements regarding financial reporting to align RHS requirements with those of the Department of Housing and Urban Development (HUD) which will reduce the burden on the borrower to produce multiple financial reports.

    DATES:

    Written comments must be received on or before October 5, 2015 to be assured for consideration.

    ADDRESSES:

    You may submit comments to this rule by any of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Mail: Submit written comments via the U.S. Postal Service to the Branch Chief, Regulations and Paperwork Management Branch, U.S. Department of Agriculture, STOP 0742, 1400 Independence Avenue SW., Washington, DC 20250-0742.

    Hand Delivery/Courier: Submit written comments via Federal Express mail or other courier service requiring a street address to the Branch Chief, Regulations and Paperwork Management Branch, U.S. Department of Agriculture, 300 7th Street SW., 7th Floor, Washington, DC 20024.

    • All written comments will be available for public inspection during regular work hours at 300 7th Street SW., 7th Floor, Washington, DC 20024.

    FOR FURTHER INFORMATION CONTACT:

    Stephanie White, Director, Multi-Family Housing Portfolio Management Division, Rural Housing Service, Room 1263S—STOP 0782, 1400 Independence Avenue SW., Washington, DC 20250-0782, Telephone: (202) 720-1615.

    SUPPLEMENTARY INFORMATION:

    Executive Order 12866, Classification

    This proposed rule has been determined to be non-significant and, therefore was not reviewed by the Office of Management and Budget (OMB) under Executive Order 12866.

    Authority

    The Multi-Family Housing program is administered, subject to appropriations, by the U.S. Department of Agriculture (USDA) as authorized under Sections 514, 515 and 516 of the Housing Act of 1949, as amended (42 U.S.C. 1484, 1485, and 1486).

    Environmental Impact Statement

    This document has been reviewed in accordance with 7 CFR part 1940, subpart G, “Environmental Program.” RHS has determined that this action does not constitute a major Federal action significantly affecting the quality of the environment. In accordance with the National Environmental Policy Act of 1969, Public Law 91-190, an Environmental Impact Statement is not required.

    Regulatory Flexibility Act

    This proposed rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). The undersigned has determined and certified by signature on this document that this rule will not have a significant economic impact on a substantial number of small entities since this rulemaking action does not involve a new or expanded program nor does it require any more action on the part of a small business than required of a large entity.

    Executive Order 13132, Federalism

    The policies contained in this rule do not have any 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. This rule does not impose substantial direct compliance costs on State and local Governments; therefore, consultation with the States is not required.

    Executive Order 12988, Civil Justice Reform

    This rule has been reviewed under Executive Order 12988. In accordance with this rule: (1) Unless otherwise specifically provided, all State and local laws that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule except as specifically prescribed in the rule; and (3) administrative proceedings of the National Appeals Division of the Department of Agriculture (7 CFR part 11) must be exhausted before bringing suit in court that challenges action taken under this rule.

    Unfunded Mandate Reform Act (UMRA)

    Title II of the UMRA, Public Law104-4, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local, and tribal Governments and on the private sector. Under section 202 of the UMRA, Federal Agencies generally must prepare a written statement, including cost-benefit analysis, for proposed and Final Rules with “Federal mandates” that may result in expenditures to State, local, or tribal Governments, in the aggregate, or to the private sector, of $100 million or more in any one-year. When such a statement is needed for a rule, section 205 of the UMRA generally requires a Federal Agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective, or least burdensome alternative that achieves the objectives of the rule.

    This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal Governments or for the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

    Paperwork Reduction Act of 1995

    The information collection requirements contained in this regulation have been approved by OMB and have been assigned OMB control number 0575-0189. This proposed rule contains no new reporting or recordkeeping requirements that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

    E-Government Act Compliance

    Rural Development 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.

    Programs Affected

    The programs affected by this regulation are listed in the Catalog of Federal Domestic Assistance under number 10.405—Farm Labor Housing Loans and Grants; 10.415—Rural Rental Housing Loans; and 10.427—Rural Rental Assistance Payments.

    Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

    This executive order imposes requirements on RHS in the development of regulatory policies that have tribal implications or preempt tribal laws. RHS has determined that the proposed rule does not have a substantial direct effect on one or more Indian tribe(s) or on either the relationship or the distribution of powers and responsibilities between the Federal Government and the Indian tribes. Thus, the proposed rule is not subject to the requirements of Executive Order 13175. If tribal leaders are interested in consulting with RHS on this proposed rule, they are encouraged to contact USDA's Office of Tribal Relations or Rural Development's Native American Coordinator at (720) 544-2911 or [email protected] to request such consultation.

    Executive Order 12372, Intergovernmental Consultation

    These loans are subject to the provisions of Executive Order 12372 which require intergovernmental consultation with State and local officials. RHS conducts intergovernmental consultations for each loan in accordance with 2 CFR part 415, subpart C.

    Non-Discrimination Policy

    The U.S. Department of Agriculture (USDA) prohibits discrimination against its customers, employees, and applicants for employment on the bases of race, color, national origin, age, disability, sex, gender identity, religion, reprisal, and where applicable, political beliefs, marital status, familial or parental status, sexual orientation, or all or part of an individual's income is derived from any public assistance program, or protected genetic information in employment or in any program or activity conducted or funded by the Department. (Not all prohibited bases will apply to all programs and/or employment activities.)

    If you wish to file a Civil Rights program complaint of discrimination, complete the USDA Program Discrimination Complaint Form (PDF), found online at http://www.ascr.usda.gov/complaint_filing_cust.html, or at any USDA office, or call (866) 632-9992 to request the form. You may also write a letter containing all of the information requested in the form. Send your completed complaint form or letter to us by mail at U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW., Washington, DC 20250-9410, by fax (202) 690-7442 or email at [email protected]

    Individuals who are deaf, hard of hearing or have speech disabilities and you wish to file either an EEO or program complaint please contact USDA through the Federal Relay Service at (800) 877-8339 or (800) 845-6136 (in Spanish).

    Persons with disabilities who wish to file a program complaint, please see information above on how to contact us by mail directly or by email. If you require alternative means of communication for program information (e.g., Braille, large print, audiotape, etc.) please contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

    Background

    Section 515(z)(1) of the Housing Act of 1949, as amended states that the Secretary shall require that borrowers in programs authorized by this section maintain accounting records in accordance with generally accepted accounting principles for all projects that receive funds from loans made or guaranteed by the Secretary. Since RHS considers 514 loans to have similar risks as 515 loans, the regulatory accounting requirements apply to both types of loans. See 7 CFR 3560.578.

    RHS published an interim rule on November 26, 2004, (69 FR 69032-69176) to implement the consolidation of MFH's previous 14 separate regulations, with an effective date of February 24, 2005. As part of the interim rule, RHS required that engagement reports be submitted with the annual financial reports for borrowers with 16 or more units. Borrowers with less than 16 units in their housing project are required to submit annual financial reports using a limited scope engagement. Engagement is currently defined at 7 CFR 3560.11.

    RHS proposes to remove engagement requirements as well as unit-based requirements from 7 CFR 3560.11, 3560.301, 3560.302, 3560.303 and 3560.308 and replace it with risk-based requirements for audits utilizing a modified version of the HUD Office of Inspector General's (OIG's) Consolidated Audit Guide standard.

    This proposed change is a result of RHS's participation in the White House's Domestic Policy Council's Rental Policy Working Group (RPWG) on an initiative to reduce duplications of requirements on customers, eliminate conflicting administrative requirements, and align program requirements in the affordable rental housing industry. The RPWG believes high-risk properties, which consists of properties that have combined federal financial assistance of $500,000 or greater, should receive more stringent evaluation of financial performance. RHS agrees, and plans to implement a risk-based threshold to set the standard for audit guidelines. This will reduce the burden on project budgets, as multiple reports become unnecessary. Instead it will require financial reporting to include audits based on a modified version of the HUD OIG Consolidated Audit Guide, which are also acceptable to HUD.

    Combined Federal financial assistance is defined as a combination of any or all of the sources identified below:

    • The outstanding principal balance of a USDA Mortgage, a mortgage insured by the Federal Housing Administration (FHA) or HUD-held mortgages or loans (including flexible subsidy loans);

    • Any USDA Rental Assistance or Project-based Section 8 assistance received during the fiscal year;

    • Interest reduction payments received during the year (interest subsidy) and/or;

    • Federal grant funds received during the year.

    The Agency believes standardizing audit requirements is an important first step in aligning the financial reporting standards among various Federal and State agencies. The new policy eliminates a financial reporting burden by allowing owners who receive less than $500,000 in combined Federal assistance to submit owner certified financial statements instead of audited financial statements.

    Although the Agency is removing engagement requirements as it relates to the borrower's annual financial reporting requirements, Section 514 and 515 proposals for new construction are still subject to the agreed upon cost certification procedures set forth in 7 CFR 3560.72(b).

    In addition to the changes in the annual reporting requirements outlined herein, the Agency is proposing two additional certifications to the Performance Standards required under 7 CFR 3560.308(c). The borrower will be asked to certify there have been no changes in project ownership other than those approved by the Agency and identified in the certification; and that, real estate taxes are paid in accordance with state and/or local requirements and are current.

    List of Subjects in 7 CFR Part 3560

    Aged loan programs—Agriculture, Loan programs—Housing and Community Development, Low- and moderate-income housing, Public housing, Rent subsidies.

    For the reasons set forth in the preamble, chapter XXXV, Title 7 of the Code of Federal Regulations is proposed to be amended as follows:

    PART 3560—DIRECT MULTI-FAMILY HOUSING LOANS AND GRANTS 1. The authority citation for Part 3560 continues to read as follows: Authority:

    42 U.S.C. 1480.

    Subpart A—General Provisions and Definitions 2. Amend § 3560.11 by removing the definition of “Engagement”. Subpart G—Financial Management 3. Section 3560.301 is revised to read as follows:
    § 3560.301 General.

    This subpart contains requirements for the financial management of Agency-financed multi-family housing (MFH) projects, including accounts, budgets, and reports. Financial management systems and procedures must cover all housing operations and provide adequate documentation to ensure that program objectives are met.

    4. Amend § 3560.302 by revising paragraphs (a), (b)(1) and (2), and (e)(1) to read as follows:
    § 3560.302 Accounting, bookkeeping, budgeting, and financial management systems.

    (a) General. Borrowers must establish the accounting, bookkeeping, budgeting and financial management procedures necessary to conduct housing project operations in a financially safe and sound manner. Borrowers must maintain records in a manner suitable for an audit, and must be able to report accurate operational results to the Agency from these accounts and records.

    (b) * * *

    (1) Borrowers may use a cash, accrual, or modified accrual method of accounting, bookkeeping, and budget preparations as long as they are prepared in accordance with the standards identified in § 3560.308.

    (2) Borrowers must describe their accounting, bookkeeping, budget preparation, and financial reporting procedures in their management plan.

    (e) * * *

    (1) Borrowers must retain all housing project financial records, books, and supporting material for at least three years after the issuance of their financial reports. Upon request, these materials will immediately be made available to the Agency, its representatives, the USDA Office of the Inspector General (OIG), or the General Accountability Office (GAO).

    5. Amend § 3560.303 by revising paragraph (b)(1)(vi)(Q) to read as follows:
    § 3560.303 Housing project budgets.

    (b) * * *

    (1) * * *

    (vi) * * *

    (Q) Professional service contracts (audits, owner-certified submissions in accordance with § 3560.302(a)(2), tax returns, energy audits, utility allowances, architectural, construction, rehabilitation and inspection contracts, etc.)

    6. Amend § 3560.308 by: a. Revising paragraphs (a)(1) and (2). b. Removing paragraph (b). c. Redesignating paragraphs (c) and (d) as (b) and (c) respectively. d. Revising the newly designated (b) introductory text. e. Adding paragraphs (b)(8) and (b)(9). f. Revising the newly designated (c)(1).

    The revisions and additions read as follows:

    § 3560.308 Annual financial reports.

    (a) General. (1) Borrowers that receive $500,000 or more in combined Federal financial assistance must include an independent auditor's report, financial statements and notes to the financial statements, supplemental information containing Agency approved forms for project budgets and borrower balance sheets, report on internal controls and compliance, and a schedule of current and prior year finding and corrective actions (if applicable). Borrowers must include the audit with their annual financial reports submitted to the Agency. Federal Financial Assistance is defined in accordance with 2 CFR 200.40.

    (2) Borrowers that receive less than $500,000 in combined Federal financial assistance must submit annual owner certified financial statements presented in accordance with Generally Accepted Accounting Principles (GAAP). Owner-certified submissions will not include an auditor's opinion or auditor's report on compliance or internal controls. Borrowers may use a CPA to prepare this report.

    (b) Performance standards. All Borrowers must certify that the housing meets the performance standards below:

    (8) There have been no changes in project ownership other than those approved by the Agency and Identified in the certification.

    (9) Real estate taxes are paid in accordance with state and/or local requirements and are current.

    (c) * * *

    (1) Non-profit and public borrower entities subject to OMB Circular A-133 requirements must submit audits in accordance with 2 CFR part 200.

    Dated: July 9, 2015. Tony Hernandez, Administrator, Rural Housing Service.
    [FR Doc. 2015-19342 Filed 8-5-15; 8:45 am] BILLING CODE 3410-XV-P
    DEPARTMENT OF ENERGY 10 CFR Parts 429 and 430 [Docket No. EERE-2014-BT-TP-0044] RIN 1904-AD45 Energy Conservation Program: Test Procedures for Battery Chargers AGENCY:

    Office of Energy Efficiency and Renewable Energy, Department of Energy.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The U.S. Department of Energy (DOE) is proposing to revise its test procedure for battery chargers established under the Energy Policy and Conservation Act of 1975, as amended (EPCA). These proposed revisions, if adopted, would harmonize the instrumentation resolution and uncertainty requirements with the second edition of the International Electrotechnical Commission (IEC) 62301 standard and other international standards for measuring standby power. Additionally, the proposed amendments would update and propose new battery selection criteria for multi-voltage, multi-capacity battery chargers, and provide specific steps on how to select a battery for those chargers when more than one battery meets the selection criteria, such as with a multi-chemistry battery charger. The proposal also outlines new provisions for conditioning and discharging lead acid batteries.

    DATES:

    Comments: DOE will accept comments, data, and information regarding this notice of proposed rulemaking before and after the public meeting, but no later than October 20, 2015. See section V, “Public Participation,” for details.

    Meeting: DOE will hold a public meeting on Tuesday, September 15, 2015 from 9 a.m. to 4 p.m., in Washington, DC. The meeting will also be broadcast as a webinar. See section V, “Public Participation,” for webinar registration information, participant instructions, and information about the capabilities available to webinar participants.

    ADDRESSES:

    The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 8E-089, 1000 Independence Avenue SW., Washington, DC 20585.

    Any comments submitted must identify the NOPR for Test Procedures for battery chargers and provide docket number EERE-2014-BT-TP-0044 and/or regulatory information number (RIN) number 1904-AD45. Comments may be submitted using any of the following methods:

    1. Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.

    2. Email: [email protected] Include the docket number and/or RIN in the subject line of the message.

    3. Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, Mailstop EE-2J, 1000 Independence Avenue SW., Washington, DC, 20585-0121. If possible, please submit all items on a CD. It is not necessary to include printed copies.

    4. Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, 950 L'Enfant Plaza SW., Suite 600, Washington, DC, 20024. Telephone: (202) 586-2945. If possible, please submit all items on a CD. It is not necessary to include printed copies.

    For detailed instructions on submitting comments and additional information on the rulemaking process, see section V of this document (Public Participation).

    Docket: The docket, which includes Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials, is available for review at regulations.gov. All documents in the docket are listed in the regulations.gov index. However, some documents listed in the index, such as those containing information that is exempt from public disclosure, may not be publicly available.

    A link to the docket Web page can be found at: http://www1.eere.energy.gov/buildings/appliance_standards/product.aspx?productid=84.

    This Web page will contain a link to the docket for this notice on the regulations.gov site. The regulations.gov Web page will contain simple instructions on how to access all documents, including public comments, in the docket. See section V for information on how to submit comments through regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Direct requests for additional information may be sent to Mr. Jeremy Dommu, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-9870.

    Email: [email protected]

    In the office of the General Counsel, contact Mr. Michael Kido, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-8145. Email: [email protected]

    For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact Ms. Brenda Edwards at (202) 586-2945 or by email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Authority and Background II. Summary of the Notice of Proposed Rulemaking III. Discussion A. Battery Selection and Testing of Multi-Voltage, Multi-Capacity Battery Chargers B. Back-Up Battery Chargers C. Measurement Accuracy and Precision D. Conditioning and Discharge Rate for Lead Acid Battery Chargers E. Sampling and Certification Requirements F. Enforcement Testing Sampling Plan G. Other Proposed Updates H. Effective Date and Compliance Date of Test Procedure I. Impact from the Test Procedure J. Wireless Power IV. Procedural Issues and Regulatory Review A. Review Under Executive Order 12866 B. Review Under the Regulatory Flexibility Act C. Review Under the Paperwork Reduction Act of 1995 D. Review Under the National Environmental Policy Act of 1969 E. Review Under Executive Order 13132 F. Review Under Executive Order 12988 G. Review Under the Unfunded Mandates Reform Act of 1995 H. Review Under the Treasury and General Government Appropriations Act, 1999 I. Review Under Executive Order 12630 J. Review Under Treasury and General Government Appropriations Act, 2001 K. Review Under Executive Order 13211 L. Review Under Section 32 of the Federal Energy Administration Act of 1974 M. Description of Material Incorporated by Reference V. Public Participation A. Attendance at Public Meeting B. Procedure for Submitting Prepared General Statements for Distribution C. Conduct of Public Meeting D. Submission of Comments E. Issues on Which DOE Seeks Comment VI. Approval of the Office of the Secretary I. Authority and Background

    Title III of the Energy Policy and Conservation Act of 1975 (42 U.S.C. 6291 et seq.; “EPCA” or, “the Act”) sets forth a variety of provisions designed to improve energy efficiency. (All references to EPCA refer to the statute as amended through the Energy Efficiency Improvement Act of 2015, Public Law 114-11 (April 30, 2015). Part B of Title III, which for editorial reasons was re-designated as Part A upon incorporation into the U.S. Code (42 U.S.C. 6291-6309, as codified), establishes the “Energy Conservation Program for Consumer Products Other Than Automobiles.” Battery chargers are among the products affected by these provisions.

    Under EPCA, the energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA, and (2) making representations about the efficiency of those products. Similarly, DOE must use these test procedures to determine whether the products comply with any relevant standards promulgated under EPCA.

    General Test Procedure Rulemaking Process

    Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE follows when prescribing or amending test procedures for covered products. EPCA provides in relevant part that any test procedures prescribed or amended under this section shall be reasonably designed to produce test results that measure the energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))

    In addition, when DOE determines that a test procedure requires amending, it publishes a notice with the proposed changes and offers the public an opportunity to comment on the proposal. (42 U.S.C. 6293(b)(2)) As part of this process, DOE determines the extent to which, if any, the proposed test procedure would alter the measured energy efficiency of any covered product as determined under the existing test procedure. (42 U.S.C. 6293(e)(1))

    Section 135 of the Energy Policy Act of 2005 (“EPACT 2005”), Public Law 109-58 (Aug. 8, 2005), amended sections 321 and 325 of EPCA by adding certain provisions related to battery chargers. Among these provisions were new definitions defining what constitutes a battery charger and a requirement that DOE prescribe “definitions and test procedures for the power use of battery chargers and external power supplies.” (42 U.S.C. 6295(u)(1)(A)) DOE complied with this requirement by publishing a test procedure final rule on December 8, 2006, that established a new Appendix Y to address the testing of battery chargers to measure their energy consumption and adopted several definitions related to the testing of battery chargers. See 71 FR 71340 (codified at 10 CFR part 430, subpart B, appendix Y “Uniform Test Method for Measuring the Energy Consumption of Battery Chargers”). Lastly, DOE incorporated by reference specific sections of the EPA's “Test Methodology for Determining the Energy Performance of Battery Charging Systems” when measuring inactive mode energy consumption.

    Section 310 of the Energy Independence and Security Act of 2007 (“EISA 2007”), Public Law 110-140 (Dec. 19, 2007) then amended section 325 of EPCA by defining active mode, standby mode, and off mode. (42 U.S.C. 6295(gg)(1)(A)) This section also directed DOE to amend its existing test procedures by December 31, 2008, to measure the energy consumed in standby mode and off mode for battery chargers. (42 U.S.C. 6295(gg)(2)(B)(i)) Further, it authorized DOE to amend, by rule, any of the definitions for active, standby, and off modes (42 U.S.C. 6295(gg)(1)(B)) Accordingly, the Department issued a notice of proposed rulemaking (NOPR) in 2008, 73 FR 48054 (Aug. 15, 2008), and a final rule in early 2009 to establish definitions for these terms. (74 FR 13318, March 27, 2009)

    Subsequently, in response to numerous testing issues raised by commenters in the context of DOE's energy conservation standards rulemaking efforts for battery chargers,1 DOE issued another NOPR on April 2, 2010 (75 FR 16958). The NOPR proposed adding a new active mode energy consumption test procedure for battery chargers that would assist in developing potential energy conservation standards for these products. DOE also proposed amending portions of its standby and off mode battery charger test procedure to shorten the overall measurement time. DOE held a public meeting to discuss its test procedure NOPR on May 7, 2010, where it also received comments on the proposals set forth in the NOPR.

    1 U.S. Department of Energy—Office of Energy Efficiency and Renewable Energy. Energy Conservation Program for Consumer Products Energy Conservation Standards Rulemaking for Battery Chargers and External Power Supplies. May 2009. Washington, DC. Available at: http://www1.eere.energy.gov/buildings/appliance_standards/residential/pdfs/bceps_frameworkdocument.pdf.

    After receiving comments at the public meeting, DOE published a final rule that codified a new active-mode test procedure and amended the standby and off-mode test procedures then-present in appendix Y to subpart B of part 430 in the CFR. 76 FR 31750 (June 1, 2011). That rule became effective 30 days after publication in the Federal Register, but manufacturers were allotted 180 days from the rule's publication to use the new test procedure when making written representations of the energy efficiency of their chargers. As federal standards for battery chargers have yet to be finalized, DOE has not required manufacturers to submit energy efficiency data for their products tested under the battery charger test procedure.

    Following the publication of the most recent final rule, DOE continued to receive additional questions and requests for clarification regarding the testing, rating, and classification of battery chargers. As part of the continuing effort to establish federal efficiency standards for battery chargers and to develop a clear and widely applicable test procedure, DOE published a Notice of Data Availability (NODA) on May 15, 2014 (79 FR 27774). This NODA sought comment from stakeholders concerning the repeatability of the test procedure when testing battery chargers with several consumer configurations, and on the anticipated market penetration of new battery charging technologies that may require further revisions to DOE's regulations. DOE also sought comment on the reporting methodologies for manufacturers attempting to comply with the California Energy Commission's (CEC's) efficiency standards for battery chargers in order to understand certain data discrepancies in the CEC database. DOE indicated its interest in soliciting feedback to determine whether the current procedure contained any ambiguities requiring clarification. These issues were discussed during DOE's NODA public meeting on June 3, 2014.

    To ensure the test procedure's clarity, DOE's proposal, which is based on commenter feedback to the NODA, would make certain clarifications to appendix Y to subpart B of 10 CFR part 430 and include a sampling plan for battery chargers in 10 CFR part 429. These proposed changes would include updated references to the latest version of IEC 62301 and clarify DOE's test methods for specific types of battery chargers to better reflect evolving technologies.

    II. Summary of the Notice of Proposed Rulemaking

    This proposal seeks to make several changes to the current test procedure for measuring the energy use of battery chargers.

    First, DOE is proposing to amend the existing battery selection criteria to limit the number of batteries selected for testing to a single battery. DOE is proposing that only the battery with the highest rated voltage and/or highest rated charge capacity, from those among which the battery charger is capable of charging, would be tested for each basic model. Additionally, DOE is proposing that if at least two distinct batteries meet the criteria of having the highest rated voltage and highest rated charge capacity, the battery charger and battery combination with the highest maintenance mode power would be selected for testing. (“Maintenance mode” is defined as “the mode of operation when the battery charger is connected to the main electricity supply and the battery is fully charged, but is still connected to the charger.” See 10 CFR part 430, subpart B, appendix Y, Sec. 2.8.)

    Second, the proposed changes would exclude back-up battery chargers embedded in continuous use devices from being required to be tested under the DOE procedure. This proposed exclusion would harmonize with DOE's approach currently under consideration regarding the potential regulation of battery back-up systems (including uninterruptible power supplies (UPSs)) as part of the Computer and Back-up Battery Systems rulemaking.

    Third, the proposed changes would harmonize DOE's test procedure with the latest version of IEC 62301 by providing specific resolution and measurement tolerances. These specifications would assist in ensuring that testing is performed with equipment that is capable of reaching these tolerances and that the resulting measurements are repeatable and reproducible.

    Fourth, DOE is proposing to change how lead acid batteries are conditioned and discharged by applying the protocol currently used for all other battery chemistries (excluding lithium-ion) to lead acid batteries. DOE has become aware that a lead acid battery's condition may vary upon purchase and this variation can impact lead acid battery performance. In an effort to minimize these effects, DOE is proposing to require that the batteries be conditioned prior to testing. Additionally, DOE has been informed that discharge rate can significantly impact the nominal battery energy of lead acid batteries, especially in the case of flooded lead acid batteries. Stakeholders have claimed that the discharge rate as determined by the current DOE test procedure is higher than that during typical use, and therefore does not give an accurate representation of the battery energy in lead acid batteries. (NMMA, No. 12, p. 4) Accordingly, DOE is proposing to lengthen the discharge time for lead acid batteries to mitigate these effects.

    Fifth, DOE is proposing to add product-specific certification reporting requirements into 10 CFR 429.39(b), which is currently reserved. DOE is also proposing to add a sampling methodology to be used for determining representations of efficiency, energy and power consumption, and other key battery charger characteristics. These proposals would specify the required data elements to certify compliance with any energy conservation standards for battery chargers that DOE may adopt, and also would provide a method for DOE to enforce compliance with any energy conservation standards for battery chargers that DOE may promulgate.

    Sixth, DOE is proposing to correct an internal cross-reference in the current version of Table 3.1 contained in 10 CFR part 430, subpart B, appendix Y and to add units to the measured and calculated values in the table. The updates would also remove the empty value column currently found in Table 3.1. DOE is also proposing to specify in section 430.23(aa) that battery discharge energy should be measured according to section 3.8 of appendix Y.

    The table below summarizes the changes and the affected sections of 10 CFR parts 429 and 430.

    Table II.1—Summary of Proposed Changes and Affected Sections of 10 CFR Parts 429 and 430 Sections to modify Summary of proposed modifications Subpart B of Part 429—Certification 429.39(b) Certification Reports • Create new paragraph (b), specifying requirements for certifications of compliance with energy conservation standards for battery chargers. Subpart C of Part 429—Enforcement Appendix D • Create new appendix to include sampling plan for enforcement testing. Subpart A of Part 430—General Provisions § 430.2. Definitions • Amend definitions of “direct operation external power supply.” • Add definition of “back-up battery charger.” Appendix Y to Subpart B of Part 430—Uniform Test Method for Measuring the Energy Consumption of Battery Chargers 1. Scope • Insert exceptions for back-up battery chargers embedded in continuous use devices and wireless charging systems that do not fix the position of the device during charging. 3. Standard Test Conditions • Incorporate by reference the uncertainty requirements of IEC 62301 (2nd Ed.) in 3.2(a). • Correct the internal cross-reference in Table 3.1 for item 4 and modify the table by removing the current “value” column and adding units to the table as appropriate. 4. Unit Under Test (UUT) Setup Requirements • Clarify in section 4.3.b that a single battery should be selected as a result of applying the battery selection criteria in Table 4.1. • Insert section 4.3.b.1 to require selecting the single battery resulting in the highest maintenance mode power when following Table 4.1 results in two or more distinct batteries. • Update Table 4.1 to remove instances of multiple batteries for test and to instruct that, where applicable, the highest voltage or highest charge capacity battery, or combination for multi-port battery chargers, must be tested. Remove column “number of tests.” 5. Test Measurement • Remove reference to lead acid batteries from section 5.3(a). • Insert provision for lead acid batteries to be discharged to 50% of rated voltage in section 5.3(c)(2)(i). • Remove reference to lead acid from section 5.3(d). • Removed discharge current value “.2C” from section 5.8(c)(2). • Updated discharge rate and termination voltage for VRLA and Flooded Lead Acid in Table 5.2. III. Discussion

    In response to the May 2014 NODA, DOE received written comments from 15 interested parties, including manufacturers, trade associations, standards development organizations, and energy efficiency advocacy groups. Table III.1 lists the entities that commented on that NODA and their affiliation. These comments are discussed in more detail below, and the full set of comments can be found at: http://www.regulations.gov/#!docketBrowser;rpp=25;po=0;D=EERE-2014-BT-NOA-0012;dct=PS.

    Table III-1—Interested Parties That Commented on the May 2014 NODA Commenter Acronym Organization type/

  • affiliation
  • Comment No.
  • (Docket
  • reference)
  • Alliance for Wireless Power A4WP Trade Association 17 Arris Group, Inc. ARRIS Manufacturer 12 Association of Home Appliance Manufacturers AHAM Standard Development Organization 18 California Investor-Owned Utilities CA IOUs Utilities 15 Consumer Electronics Association CEA Trade Association 21 Energizer Holdings, Inc. Energizer Manufacturer 8 Information Technology Industry Council ITI Trade Association 19 Johnson Outdoors Marine Electronics JOME Manufacturer 9 National Electrical Manufacturers Association NEMA Trade Association 7 National Marine Manufacturers Association NMMA Trade Association 11 Natural Resources Canada/ECOVA NRCan (ECOVA) Efficiency Advocacy Group 16 National Resources Defense Council NRDC Efficiency Advocacy Group 20 Power Tool Institute PTI Trade Association 13 Proctor & Gamble P&G Manufacturer 10 Telecommunications Industry Association TIA Standard Development Organization 14 A. Battery Selection and Testing of Multi-Voltage, Multi-Capacity Battery Chargers

    DOE sought comments on the existing battery selection methodology included in section 4.3 “Selection of Batteries To Use for Testing” of the test procedure in its recent NODA as it relates to multi-voltage, multi-voltage and multi-capacity, and multi-chemistry battery chargers. See 79 FR 27774, 27776-27777 (May 15, 2014).The submitted comments suggested that errors may be introduced when testing these types of battery chargers and raised questions about the repeatability of the test procedure when testing battery chargers capable of charging batteries of different chemistries (i.e., chargers capable of handling multiple battery chemistries such as lithium and nickel metal hydride). PTI urged DOE to state explicitly how each battery charger and battery combination should be rated. (PTI, Pub. Mtg. Transcript, No. 6 at p. 77) ITI commented that the current test procedure leaves significant room for error and does not employ effective, reasonable and repeatable test conditions for these types of battery chargers. (ITI, No. 19, pp. 2-3) The CA IOUs and NRDC both offered solutions to eliminate ambiguity in battery selection for these battery chargers by suggesting that the least expensive battery or the battery which represents the most common intended use be selected. (California IOUs, No. 15, p. 2, NRDC, No. 20, p. 2) DOE took all of these comments into account when developing its proposal.

    Under the current provisions for battery selection, a multi-voltage, multi-capacity battery charger must be tested with as many as three distinct battery types. The battery selection procedure under Appendix Y, Section 4, Table 4.1, lays out three sets of testing scenarios:

    (a) Test unit with the lowest voltage, lowest capacity battery utilizing only one port.

    (b) Test unit with the highest voltage, lowest capacity battery utilizing only one port.

    (c) Use all ports and use the battery or configuration of batteries with the highest total rated energy capacity.

    Per section 4.3.a(2), if no batteries are packaged with the charger, but the instructions specify or recommend batteries for use with the charger, batteries for testing must be those recommended or specified in the instructions and must be selected according to the procedure in section 4.3.b, which generally requires that a tester use Table 4.1 to determine which batteries to use when testing the efficiency of a given battery charger. In the case of multi-chemistry battery chargers, multiple batteries of differing chemistries may meet the criteria outlined in 4.3.b for a single battery selection and test. Specifically, the current test procedure is not clear which battery chemistry, or chemistries, should be selected for testing—it indicates only that the battery with the highest voltage or highest rated charge capacity be selected. In this case, the test results for each battery of differing chemistries may be inconsistent even though they have the same voltage and charge capacity. Finally, DOE realizes that the current battery selection criteria can result in the selection of up to three separate batteries for testing, which increases testing burden and may create ambiguity as to which test result to use when making a representation about the energy efficiency of a battery charger. DOE is proposing an approach that would reduce ambiguity and testing burden, while yielding repeatable measurements of a tested unit's energy use.

    Specifically, to eliminate potential ambiguity and reduce testing burden, DOE is proposing to modify Table 4.1 to eliminate the multiple tests currently required for multi-voltage and multi-capacity battery chargers and instead require that only the battery with the highest voltage and/or highest charge capacity be selected. In doing so, DOE's goal is to test the charger in the mode for which the battery charger is designed to operate optimally. Based on feedback from industry representatives and consultation with subject matter experts, DOE understands that, if required to operate over a range of outputs, power electronics, including battery chargers, are typically designed to optimize components at the high output range of the device. Therefore, DOE believes these test results will be representative of the typical energy consumption of the battery charger and reduce the possibility of placing undue burden on manufacturers of chargers that are able to charge lower voltage, lower capacity batteries.

    To address these same issues, DOE is also proposing that if a battery charger is multi-voltage and multi-capacity and capable of charging batteries of multiple chemistries (such that two or more batteries, each with a unique chemistry, meet the proposed selection criteria) the battery and battery charger combination resulting in the highest maintenance mode power would be chosen for testing.

    DOE anticipates that, with these proposed changes, there will be only one set of test results, and a single rating, for each basic model of battery charger. The resulting energy consumption calculation would be repeatable and representative of each basic model's energy use for which it has been optimized, while eliminating the ambiguity that appears to be present in the current version of the procedure. Additionally, by reducing the number of tests required, DOE believes that the overall test burden would be reduced. DOE seeks comment on the proposed methodology for selecting batteries for multi-voltage, multi-capacity battery chargers, and for those cases when the battery selection criteria results in two or more unique batteries (e.g., multi-chemistry battery chargers).

    DOE notes that it also considered several other options to modify the test procedure to clarify how to measure the energy use of, and obtain a single set of energy consumption ratings for, multi-voltage and multi-capacity battery chargers. First, DOE considered requiring the existing battery selection criteria to be applied and then averaging the test results to produce one set of test results. Second, DOE considered modifying the battery selection criteria to require that only the battery with the lowest voltage and/or lowest rated charge capacity be selected for testing. Lastly, in the case of multi-chemistry battery chargers, DOE considered requiring the battery charger be considered a basic model for each base chemistry it was capable of charging and apply the battery selection criteria separately for each chemistry, or basic model.

    Each one of these proposed solutions, however, resulted in solutions that did not fully accomplish DOE's goals. The first option, while producing a single set of test results, could result in an unrepresentative measurement of the true energy consumption consistent with any configuration of batteries the battery charger is capable of charging. The second option, while similar to DOE's proposal, would not produce results representative of the higher range for which battery chargers are, typically, optimally designed when capable of charging multiple voltages and capacities. Finally, in addressing battery chemistry, treating each chemistry mode as a unique basic model, with either of the previous options discussed above, did not produce a single metric and could increase the testing burden on some manufacturers. In DOE's view, this approach would produce test results that are repeatable and representative of the typical energy consumption of the battery charger under test and at the same time reduce testing burden on manufacturers. While DOE's preliminary determination is that these options conflict with those intentions, DOE is seeking comment on these other options as well.

    B. Back-Up Battery Chargers

    DOE sought comments on applying the current test procedure to battery chargers embedded in continuous use products, or back-up battery chargers, in the recent NODA. See 79 FR 27774. Based on comments received from interested parties and DOE's own analysis, DOE is proposing to define back-up battery chargers and exclude them from the scope of this test procedure. DOE is proposing to define back-up battery chargers in 10 CFR 430.2 as a battery charger that: (1) Is embedded in a separate end-use product that is designed to continuously operate using main power (AC or DC) and (2) has as its sole purpose to recharge a battery used to maintain continuity of load power in case of input power failure. DOE previously referred to these battery chargers in the context of continuous use devices in the May 2014 NODA. Examples of such devices that integrate back-up battery chargers include UPSs and some cable modems. Interested parties noted to DOE that continuous use devices are becoming increasingly integrated with a variety of products that do not perform back-up battery charging as a primary function of the device. As a result of this integrated approach, the battery charging function in these products often cannot be isolated during testing (ARRIS, No. 22, p. 2). While the test procedure is designed to measure the energy consumption and efficiency of the battery charging functionality, the method is limited when applied to a battery charger that is embedded among other functions that cannot be isolated during testing. Citing this reason, ARRIS suggested that these types of devices be excluded from the scope of the test procedure. (ARRIS, No. 22, p. 2).

    ARRIS also noted that, in the event that DOE does not exclude these types of back-up battery chargers embedded in continuous use devices from the scope of this procedure, DOE should add provisions specifically to address the testing of these units. ARRIS suggested amending the test procedure to provide for measurement of only the battery charging functionality of continuous use devices that lack an on/off switch and for which the battery cannot be removed. The suggested alternative includes measuring 24-hour energy consumption (“E24”) with a fully charged battery, then again measuring E24 with a discharged battery. ARRIS's approach would use the absolute difference between these two values to represent the 24-hour energy consumption of the unit under test (UUT). (ARRIS, No. 12, p. 4-6)

    Additionally, the CA IOUs and NRDC both suggested that if DOE plans to require back-up battery chargers embedded in continuous use devices to be tested under the current test procedure, manufacturers should add an on-off switch to turn off all additional functionality. (CA IOUs, No. 15, p. 3, NRDC, No. 20, p. 3) ARRIS argued, however, that adding switches to disable non-charging functionality in a device where multiple functions, including battery charging, have been integrated at the system or chipset level—which helps achieve lower manufacturing costs and increased reliability and energy efficiency—is not feasible. (ARRIS, No. 22, p. 3).

    Based on its own testing data and the feedback received from commenters, at this time, DOE is proposing to exclude back-up battery chargers that are embedded in continuous devices from the testing requirements of the DOE battery charger test procedure. DOE may revisit this decision in the future as circumstances permit.

    Consistent with this proposed approach, DOE is also proposing to define the term “back-up battery charger” in § 430.2 and add to Section 1 of Appendix Y language specifying that back-up battery chargers would be excluded from the scope of the test procedure. DOE recognizes that its previously proposed standards for battery chargers considered products that would now be excluded from the scope of the test procedure. If back-up battery chargers were removed from the scope of test procedure, DOE would no longer consider establishing conservation standards for these types of products as part of a standards rulemaking for battery chargers. However, DOE is considering energy conservation standards for some battery back-up systems (including UPSs) as part of the Computer and Back-up Battery Systems rulemaking. DOE seeks comments on this approach.

    C. Measurement Accuracy and Precision

    On June 13, 2005, the IEC published its first edition of testing standard IEC 62301, which provided a method for measuring standby power of household appliances. The standard quantified minimum resolution requirements for energy measurement instruments and outlined the necessary procedures to ensure stable energy readings for any UUT. The standard also set limits on the uncertainties associated with any measurement taken that is meant to represent the energy consumption of a household device. It has since become recognized by many regulatory bodies as the default guideline for any power or energy measurement required for formal certification. DOE subsequently adopted instrumentation resolution and measurement uncertainty requirements for testing battery chargers identical to those in the IEC 62301 standard and codified these requirements at 10 CFR part 430, subpart B, appendix Y on June 1, 2011. 76 FR 31750.

    The IEC published Edition 2.0 of IEC 62301 in January 2011. This revised version of the testing standard refined the test equipment specifications, measuring techniques, and uncertainty determination to improve the method for measuring loads with high crest factors and/or low power factors, such as the low power modes typical of battery chargers operating in standby mode. These provisions were contained in Section 4 of IEC 62301, with informative guidance provided in Annex B and Annex D on measuring low power modes and determining measurement uncertainty.

    To continue to ensure test methods are harmonized, DOE is proposing to incorporate by reference the resolution parameters for power measurements and uncertainty methodologies found in Section 4 of the second edition of the IEC 62301 standard. DOE seeks comment on the merits of incorporating these revisions into the current battery chargers test procedure in Appendix Y. DOE also seeks comment regarding whether the use of Annex B and Annex D should be mandatory to ensure the most accurate test results.

    D. Conditioning and Discharge Rate for Lead Acid Battery Chargers

    DOE received several comments from stakeholders suggesting changes to both the conditioning of lead acid batteries and the discharge rate for lead acid batteries. In some cases, DOE's own research also points to a potential need to modify the current procedure to better account for the specific characteristics of lead acid batteries. Currently, no conditioning is performed for lead acid batteries. See 10 CFR part 430, appendix Y, sec. 5.3.a.

    First, Johnson Outdoor Marine Electronics (JOME) provided test results with its comments indicating that the discharge energy of lead acid batteries varies over several cycles. These results are contrary to certain lead acid battery manufacturers' claims that conditioning is not required. JOME stated that typical lead acid batteries are only at 75 to 80 percent capacity when they are delivered in new condition, and JOME's test results show that lead acid battery discharge energy could increase after just two cycles, the current value for all other battery chemistries. (JOME, No. 9, p. 4-5) These data suggest that applying the conditioning protocol outlined in the current appendix Y, section 5.3.c (for batteries of other chemistries) as a prerequisite, prior to testing lead acid batteries, will produce a more accurate representation of battery discharge energy.

    Providing the option of various discharge rates during battery conditioning would also allow manufacturers to increase conditioning if needed. JOME's data suggest that additional conditioning may be needed to maximize discharge energy—in some cases up to 4 cycles or more. Furthermore, JOME added that its conversations with battery manufacturers indicate that a 50%-80% depth of discharge would produce more accurate and representative results for lead acid batteries. (JOME, No. 9, p. 4) To account for these issues, DOE is proposing to apply the same battery conditioning provisions found in appendix Y, Section 5.3.c, to lead acid batteries and use a 50% depth of discharge during conditioning. DOE is seeking comment on applying the conditioning protocol (two charges and two discharges, followed by a charge, as a minimum) outlined in section 5.3.c of the test procedure to lead acid batteries. DOE also seeks comment on amending the depth of discharge requirement, during conditioning only, to 50% of the rated voltage of the battery and what alternative depth of discharge requirements (if any) should apply to lead acid batteries.

    Second, JOME, the National Marine Manufacturers Association (NMMA), and DOE's own research, indicate that the amount of usable energy extracted from a lead acid battery is inversely proportional to its discharge rate.2 (NMMA, No. 12, p. 3) Thus, a lead acid battery discharged over a span of 10 hours produces a higher amount of overall measured energy than one discharged over a period of 5 hours. To address this issue, NMMA suggested that DOE allow for a longer discharge cycle than the current 5 hours required in the battery charger test procedure. (NMMA, No. 12, p. 4) Given that a longer discharge rate may be more representative for certain lead acid batteries, particularly those used in marine applications, DOE is proposing to amend its procedure by providing manufacturers with the option to choose between a 5-hour (C/5 or .2C), 10-hour (C/10 OR .1C), or 20-hour (C/20 OR .05C) discharge rate when testing with batteries that are rated above 1,000 watt-hours (Wh). DOE is limiting this option to those batteries that are above 1,000 Wh because a longer discharge cycle would do little to maximize discharge energy for batteries under 1,000 Wh, but would have a more significant impact on maximizing discharge energy for batteries greater than 1,000 Wh. DOE seeks comment on its proposed approach for lead acid batteries and whether the approach as described above would require any adjustments. Should adjustments be needed, DOE seeks feedback on what those adjustments should be.

    2 Perez, Richard. “Lead-Acid Battery State of Charge vs. Voltage.” Home Power #36 (August/September 1993). Web 2014. http://www.zetatalk4.com/docs/Batteries/FAQ/State_Of_Charge_Ver_Voltage_2004+.pdf.

    E. Sampling and Certification Requirements

    DOE is proposing to update 10 CFR 429.39, section (a), “Determination of represented value,” and reserved section (b), “Certification Reports,” to detail how to apply the sampling plan to calculate a represented value for each measure of energy consumption, time, and power recorded as part of the battery charger test procedure, and subsequently report those ratings during certification. For each basic model, these ratings would be determined by applying the statistical requirements outlined in 10 CFR 429.39 to a sample of battery charger units that are tested according to the test procedure in appendix Y. Specifically, a represented value would be calculated in watts (W) for the measured maintenance mode power, the measured standby mode power, and the measured off mode power; the Wh rating would be calculated for the measured battery discharge energy and the measured 24-hour energy consumption. Additionally, the proposal would require the certification report for each basic model of battery charger to include each of the aforementioned represented values, along with the manufacturer and model of the test battery used; the nameplate battery voltage of the test battery in volts (V); the nameplate charge capacity of the test battery in ampere-hours (Ah); the nameplate charge energy, if available, of the battery in watt hours (Wh); the brand and model, when applicable, of the external power supply (EPS) used for testing; 3 and the average duration of the charge and maintenance mode test in hours (hr).

    3 The test procedure states in section 4.1.a that “[t]he battery charger system shall be prepared and set up in accordance with the manufacturer's instructions.” See 10 CFR 430 appendix Y to subpart B. Battery charger systems that include an EPS should be tested with the EPS that is sold with the battery charger system in accordance with the manufacturer's instructions. For battery chargers that use an EPS but are not sold with an EPS, the system should be tested according to the manufacturer's instructions on how to supply power to the battery charger. Providing the manufacturer and model for the EPS in the certification report would help ensure test result repeatability in cases where the EPS necessary to supply power to the charger is not included.

    In 2012, DOE proposed to regulate battery charger energy use with a single metric—Unit Energy Consumption (UEC)—derived from a calculation of the amount of energy consumed by the battery charger over the course of year. 77 FR 18478 (March 27, 2012). The inputs into this calculation would include the represented values that DOE is proposing to include as part of the certification requirements, along with constants used to represent the estimated number of charges per day and the number of hours each day that the battery charger spends in each mode of operation. These usage profile assumptions were originally proposed as part of the March 2012 NOPR. Therefore, should DOE finalize energy conservation standards using the same UEC approach proposed in the NOPR, the represented values included on the certification report would allow DOE to calculate the UEC of each certified basic model of battery charger and ensure compliance with energy conservation standards.

    DOE seeks comment on its proposal to update the sampling requirements and reporting requirements for battery chargers to include the data required to identify the battery charger and battery, as well as measured ratings recorded in the test procedure. DOE is particularly interested in whether the inclusion of these proposed categories of information would present a significant burden on manufacturers to produce as part of a submitted certification report—and if so, why.

    F. Enforcement Testing Sampling Plan

    To ensure that manufacturers of consumer products comply with the applicable energy conservation standards, DOE conducts enforcement testing by randomly selecting a sample of units and testing them according to the test procedure. DOE then compares the results obtained through this enforcement testing to the applicable energy conservation standard to determine whether the basic model meets that standard. DOE is proposing a sampling and calculation method for DOE to assess the compliance of battery charger basic models.

    When conducting enforcement testing for battery chargers, DOE is proposing to test a sample of at least 4 units of a battery charger basic model according to the provisions of the test procedure. DOE would then determine the sample mean for each of the output metrics of the test procedure, and then use those sample means to calculate the basic model's UEC according to the UEC equation that would be set forth as part of an energy conservation standard for battery chargers. DOE would then determine compliance by comparing the UEC calculated as part of enforcement testing to the applicable energy conservation standard. DOE is proposing to add Appendix D to Subpart C of Part 429 of the CFR to describe the methodology that DOE would use when conducting enforcement testing of battery chargers. DOE seeks comments on this proposal.

    G. Other Proposed Updates

    DOE is also proposing to update Table 3.1 of Appendix Y to correct a cross-reference error and eliminate a redundant column. The Active and Maintenance Mode Energy Consumption item on the fourth line in this table currently references section 5.8, when it should reference section 5.6, “Testing Charge Mode and Battery Maintenance Mode.” Additionally, DOE is proposing to remove the current “Value” column because the information from that column can be inserted in the column labeled “Name of measured or calculated value” column to reduce the table's complexity. DOE seeks comment on these proposed simplification changes.

    H. Effective Date and Compliance Date of Test Procedure

    If adopted, the effective date for the battery charger test procedure would be 30 days after publication of the test procedure final rule in the Federal Register. At that time, any measure of energy consumption relying on these metrics may be represented pursuant to the final rule. Consistent with 42 U.S.C. 6293(c), representations of the energy consumption or energy efficiency of battery chargers must be based on the new test procedure and sampling plans as of 180 days after the date of publication of the test procedure final rule. Starting on that date, any such representations, including those made on marketing materials, Web sites (including qualification with a voluntary or State program), and product labels would be required to be based on results generated using the proposed procedure as well as the sampling plan in 10 CFR part 429.

    I. Impact From the Test Procedure

    When proposing to amend a test procedure, DOE typically determines the extent to which, if any, the proposed test procedure would alter the measured energy efficiency of any covered product when compared to the existing test procedure. (42 U.S.C. 6293(e)(1)). Because DOE does not currently have energy conservation standards for battery chargers, this proposal would not affect this provision.

    J. Wireless Power

    In a March 2012 standards NOPR for battery chargers and EPSs, DOE noted that there are a number of different products under the broad umbrella of “wireless power,” including both battery chargers and EPSs. See 77 FR 18478 (March 27, 2012) (notice of proposed rulemaking to set standards for battery chargers and external power supplies). In the May 2014 battery charger NODA, DOE sought input on wireless charging stations that are specifically designed to operate in dry environments, although DOE did not explicitly consider these products when first developing the battery charger test procedure. (79 FR at 27776-27777) DOE plans to address this issue in a separate rulemaking.

    IV. Procedural Issues and Regulatory Review A. Review Under Executive Order 12866

    The Office of Management and Budget (OMB) has determined that test procedure rulemakings do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (October 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget.

    B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis (IFRA) for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the DOE rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's Web site: http://energy.gov/gc/office-general-counsel.

    For manufacturers of battery chargers, the Small Business Administration (SBA) has set a size threshold, which defines those entities classified as “small businesses” for the purposes of the statute. DOE used the SBA's small business size standards to determine whether any small entities would be subject to the requirements of the rule. 65 FR 30836, 30848 (May 15, 2000), as amended at 65 FR 53533, 53544 (September 5, 2000) and codified at 13 CFR part 121. The size standards are listed by North American Industry Classification System (NAICS) code and industry description and are available at http://www.sba.gov/content/summary-size-standards-industry. Battery charger manufacturers are classified under NAICS 335999, “All Other Miscellaneous Electrical Equipment and Component Manufacturing.” The SBA sets a threshold of 500 employees or less for an entity to be considered as a small business for this category.

    As discussed in the March 2012 NOPR, DOE identified one battery charger original device manufacturer with domestic manufacturing. Based on manufacturer interviews and DOE's research, DOE believes that almost all battery charger manufacturing takes place abroad. Also, in the NOPR and at the NOPR public meeting DOE asked for comment regarding the impacts on small battery charger manufacturers and it received no comments. Therefore, based on the information DOE currently has at hand, DOE certifies that this proposed rule is unlikely to have a significant impact on a substantial number of small entities.

    DOE reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. This proposed rule prescribes certain limited clarifying amendments to an already-existing test procedure that will help manufacturers and testing laboratories to consistently conduct that procedure when measuring the energy efficiency of a battery charger, including in those instances where compliance with the applicable Federal energy conservation standard is being assessed. DOE has tentatively concluded that the proposed rule would not have a significant impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE will transmit the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the SBA for review under 5 U.S.C. 605(b).

    C. Review Under the Paperwork Reduction Act of 1995

    If DOE adopts energy conservation standards for battery chargers, manufacturers of battery chargers will be required to certify that their products comply with those standards. In certifying compliance, manufacturers must test their products according to the applicable DOE test procedure, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment and is proposing specific requirements for battery chargers in this rule. See 10 CFR part 429, subpart B. The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB under OMB control number 1910-1400. This information collection was renewed in January 2015 to include certification requirements for battery chargers. 80 FR 5099 (January 30, 2015). Public reporting burden for the certification is estimated to average 30 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

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

    D. Review Under the National Environmental Policy Act of 1969

    The proposed test procedure amendments will likely be used to develop and implement future energy conservation standards for battery chargers. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and DOE's implementing regulations at 10 CFR part 1021. Specifically, this proposed rule would amend the existing test procedures without affecting the amount, quality or distribution of energy usage, and, therefore, would not result in any environmental impacts. Thus, this rulemaking is covered by Categorical Exclusion A5 under 10 CFR part 1021, subpart D, which applies to any rulemaking that interprets or amends an existing rule without changing the environmental effect of that rule. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

    E. Review Under Executive Order 13132

    Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.

    F. Review Under Executive Order 12988

    Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of Executive Order 12988.

    G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at http://energy.gov/gc/office-general-counsel. DOE examined this proposed rule according to UMRA and its statement of policy and determined that the rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure of $100 million or more in any year, so these requirements do not apply.

    H. Review Under the Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

    I. Review Under Executive Order 12630

    DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (March 18, 1988), that this proposed regulation, if adopted, would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

    J. Review Under Treasury and General Government Appropriations Act, 2001

    Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

    K. Review Under Executive Order 13211

    Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

    This regulatory action to amend the test procedure for measuring the energy efficiency of battery chargers is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.

    L. Review Under Section 32 of the Federal Energy Administration Act of 1974

    Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (FTC) concerning the impact of the commercial or industry standards on competition.

    Certain of the proposed amendments would incorporate testing methods contained in the following commercial standards: IEC Standard 62301 “Household electrical appliances—Measurement of standby power.” DOE has evaluated these testing standards and believes that the IEC standard complies with the requirements of section 32(b) of the Federal Energy Administration Act, (i.e., that they were developed in a manner that fully provides for public participation, comment, and review). DOE is, however, consulting with the Attorney General and the Chairwoman of the FTC concerning the effect on competition of requiring manufacturers to use the test method in this standard.

    M. Description of Material Incorporated by Reference

    DOE previously adopted instrumentation resolution and measurement uncertainty requirements for testing battery chargers identical to those in the IEC 62301 standard and codified these requirements at 10 CFR part 430, subpart B, Appendix Y on June 1, 2011. 76 FR 31750. The IEC published Edition 2.0 of IEC 62301 in January 2011, which is available from the American National Standards Institute, 25 W. 43rd Street, 4th Floor, New York, NY 10036 or at http://webstore.ansi.org/. This revised version of the testing standard refined the test equipment specifications, measuring techniques, and uncertainty determination to improve the method for measuring loads with high crest factors and/or low power factors, such as the low power modes typical of battery chargers operating in standby mode. These provisions were contained in Section 4 of IEC 62301, with informative guidance provided in Annex B and Annex D on measuring low power modes and determining measurement uncertainty. DOE has already incorporated by reference Edition 2.0 of IEC 62301in 10 CFR part 430 for use with other test procedures, and is now proposing to also incorporate by reference Edition 2.0 in appendix Y as well.

    V. Public Participation A. Attendance at Public Meeting

    The time, date and location of the public meeting are listed in the DATES and ADDRESSES sections at the beginning of this document. If you plan to attend the public meeting, please notify Ms. Brenda Edwards at (202) 586-2945 or [email protected]

    Please note that foreign nationals visiting DOE Headquarters are subject to advance security screening procedures which require advance notice prior to attendance at the public meeting. If a foreign national wishes to participate in the public meeting, please inform DOE of this fact as soon as possible by contacting Ms. Regina Washington at (202) 586-1214 or by email: [email protected] so that the necessary procedures can be completed.

    DOE requires visitors to have laptops and other devices, such as tablets, checked upon entry into the building. Any person wishing to bring these devices into the Forrestal Building will be required to obtain a property pass. Visitors should avoid bringing these devices, or allow an extra 45 minutes to check in. Please report to the visitor's desk to have devices checked before proceeding through security.

    Due to the REAL ID Act implemented by the Department of Homeland Security (DHS), there have been recent changes regarding ID requirements for individuals wishing to enter Federal buildings from specific states and U.S. territories. Driver's licenses from the following states or territory will not be accepted for building entry and one of the alternate forms of ID listed below will be required. DHS has determined that regular driver's licenses (and ID cards) from the following jurisdictions are not acceptable for entry into DOE facilities: Alaska, American Samoa, Arizona, Louisiana, Maine, Massachusetts, Minnesota, New York, Oklahoma, and Washington. Acceptable alternate forms of Photo-ID include: U.S. Passport or Passport Card; an Enhanced Driver's License or Enhanced ID-Card issued by the states of Minnesota, New York or Washington (Enhanced licenses issued by these states are clearly marked Enhanced or Enhanced Driver's License); a military ID or other Federal government issued Photo-ID card.

    In addition, you can attend the public meeting via webinar. Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE's Web site: http://www1.eere.energy.gov/buildings/appliance_standards/product.aspx?productid=84. Participants are responsible for ensuring their systems are compatible with the webinar software.

    B. Procedure for Submitting Prepared General Statements for Distribution

    Any person who has plans to present a prepared general statement may request that copies of his or her statement be made available at the public meeting. Such persons may submit requests, along with an advance electronic copy of their statement in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format, to the appropriate address shown in the ADDRESSES section at the beginning of this NOPR. The request and advance copy of statements must be received at least one week before the public meeting and may be emailed, hand-delivered, or sent by mail. DOE prefers to receive requests and advance copies via email. Please include a telephone number to enable DOE staff to make a follow-up contact, if needed.

    C. Conduct of Public Meeting

    DOE will designate a DOE official to preside at the public meeting and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public meeting. After the public meeting and until the end of the comment period, interested parties may submit further comments on the proceedings and any aspect of the rulemaking.

    The public meeting will be conducted in an informal, conference style. DOE will present summaries of comments received before the public meeting, allow time for prepared general statements by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a general statement (within time limits determined by DOE), before the discussion of specific topics. DOE will permit, as time permits, other participants to comment briefly on any general statements.

    At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly and comment on statements made by others. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this rulemaking. The official conducting the public meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the public meeting.

    A transcript of the public meeting will be included in the docket, which can be viewed as described in the Docket section at the beginning of this NOPR. In addition, any person may buy a copy of the transcript from the transcribing reporter.

    D. Submission of Comments

    DOE will accept comments, data, and information regarding this proposed rule before or after the public meeting, but no later than the date provided in the DATES section at the beginning of this proposed rule. Interested parties may submit comments using any of the methods described in the ADDRESSES section at the beginning of this NOPR.

    Submitting comments via regulations.gov. The regulations.gov Web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

    However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

    Do not submit to regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (CBI)). Comments submitted through regulations.gov cannot be claimed as CBI. Comments received through the Web site will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

    DOE processes submissions made through regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that regulations.gov provides after you have successfully uploaded your comment.

    Submitting comments via email, hand delivery, or mail. Comments and documents submitted via email, hand delivery, or mail also will be posted to regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information on a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

    Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery, please provide all items on a CD, if feasible. It is not necessary to submit printed copies. No facsimiles (faxes) will be accepted.

    Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English and free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

    Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

    Confidential Business Information. According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email, postal mail, or hand delivery two well-marked copies: one copy of the document marked confidential including all the information believed to be confidential, and one copy of the document marked non-confidential with the information believed to be confidential deleted. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

    Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.

    It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

    E. Issues on Which DOE Seeks Comment

    Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:

    1. DOE seeks comments on the methodology for selecting a battery for multi-capacity, multi-voltage, multi-chemistry battery chargers. (See section III.A.1)

    2. DOE seeks comments on the methodology for selecting a single battery based on the battery and battery charger combination that results in the highest maintenance mode power when Table 4.1 results in two or more unique batteries. (See section III.A.1)

    3. DOE seeks comment on the other options considered for addressing multi-voltage, multi-capacity battery chargers. (See section III.A.1)

    4. DOE seeks comments on the exclusion of back-up battery chargers from the scope of the test procedure. (See section III.A.2)

    5. DOE seeks comments on the merits of incorporating IEC 62301 V.2 updates into the current battery chargers test procedure in Appendix Y. (See section III.A.3)

    6. DOE seeks comments on amending the depth of discharge to 50% of the rated voltage of the battery for lead acid batteries during conditioning. (See section III.DA.4)

    7. DOE seeks comment on adding optional discharge rates at 10 hrs. (orC/10) and 20 hrs. (or C/20) in the Battery Discharge Energy Test for lead acid batteries. (See section III.A.4)

    8. DOE seeks comment on its proposal to amend the sampling and certification requirements for battery chargers. (See section III.A.5)

    9. DOE seeks comment on the updates to Table 3.1 to correct for a reference error and update units for the required values identified in the table. (See section III.A.7)

    10. DOE seeks comment on the burden estimates outlined in the review of the Paperwork Reduction Act. (See section IV.C)

    VI. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this proposed rule.

    List of Subjects 10 CFR Part 429

    Confidential business information, Energy conservation, Household appliances, Imports, Reporting and recordkeeping requirements.

    10 CFR Part 430

    Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental relations, Small businesses.

    Issued in Washington, DC, on July 27, 2015. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.

    For the reasons stated in the preamble, DOE is proposing to amend parts 429 and 430 of chapter II of title 10, Code of Federal Regulations as set forth below:

    PART 429—CERTIFICATION, COMPLIANCE, AND ENFORCEMENT FOR CONSUMER PRODUCTS AND COMMERCIAL AND INDUSTRIAL EQUIPMENT 1. The authority citation for part 429 continues to read as follows: Authority:

    42 U.S.C. 6291-6317.

    2. Revise § 429.39 to read as follows:
    § 429.39 Battery chargers.

    (a) Determination of represented value. Manufacturers must determine represented values, which includes certified ratings, for each basic model of battery charger in accordance with following sampling provisions.

    (1) Represented values include: Battery discharge energy in watt hours (Wh), 24-hour energy consumption in watt hours (Wh), maintenance mode power in watts (W), standby mode power in watts (W), and off mode power in watts (W).

    (2) Units to be tested. The requirements of § 429.11 are applicable to battery chargers; and, for each basic model of battery charger, a sample of sufficient size must be randomly selected and tested to ensure that—

    (i) Any represented value of energy consumption or power for which consumers would favor lower values must be greater than or equal to the higher of:

    (A) The mean of the sample, where:

    ER06AU15.006 And, x is the sample mean; η is the number of samples; and xi is the ith sample; or,

    (B) The upper 97.5 percent confidence limit (UCL) of the true mean divided by 1.05, where:

    ER06AU15.007 And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.975 is the t statistic for a 97.5% one-tailed confidence interval with n-1 degrees of freedom (from appendix A to subpart B of part 429); and

    (ii) Any represented value energy consumption or power of a basic model for which consumers would favor higher values must be less than or equal to the lower of:

    (A) The mean of the sample, where:

    ER06AU15.008 And, x is the sample mean; η is the number of samples; and xi is the ith sample; or,

    (B) The lower 97.5 percent confidence limit (LCL) of the true mean divided by 1.05, where:

    ER06AU15.009 And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.975 is the t statistic for a 97.5% one-tailed confidence interval with n-1 degrees of freedom (from appendix A to subpart B of part 429).

    (b) Certification reports. (1) The requirements of § 429.12 are applicable to battery chargers;

    (2) Pursuant to § 429.12(b)(13), a certification report must include the following public product-specific information: The manufacturer and model of the test battery; the nameplate battery voltage of the test battery in volts (V); the nameplate charge capacity of the test battery in ampere-hours (Ah); the nameplate charge energy, if available, of the battery in watt hours (Wh); the manufacturer and model, when applicable, of the external power supply used for testing; the average duration of the charge and maintenance mode test in hours (hr) for the units sampled; battery discharge energy in watt hours (Wh); 24-hour energy consumption in watt hours (Wh); maintenance mode power in watts (W); standby mode power in watts (W); and off mode power in watts (W).

    3. Revise paragraph (e) of § 429.110 to read as follows:
    § 429.110 Enforcement testing.

    (e) Basic model compliance. DOE will evaluate whether a basic model complies with the applicable energy conservation standard(s) based on testing conducted in accordance with the applicable test procedures specified in parts 430 and 431 of this chapter, and with the following statistical sampling procedures:

    (1) For products with applicable energy conservation standard(s) in § 430.32, and commercial prerinse spray valves, illuminated exit signs, traffic signal modules and pedestrian modules, commercial clothes washers, and metal halide lamp ballasts, DOE will use a sample size of not more than 21 units and follow the sampling plans in appendix A of this subpart (Sampling for Enforcement Testing of Covered Consumer Products and Certain High-Volume Commercial Equipment).

    (2) For automatic commercial ice makers; commercial refrigerators, freezers, and refrigerator-freezers; refrigerated bottled or canned vending machines; and commercial HVAC and WH equipment, DOE will use an initial sample size of not more than four units and follow the sampling plans in appendix B of this subpart (Sampling Plan for Enforcement Testing of Covered Equipment and Certain Low-Volume Covered Products).

    (3) If fewer than four units of a basic model are available for testing when the manufacturer receives the notice, then:

    (i) DOE will test the available unit(s); or

    (ii) If one or more other units of the basic model are expected to become available within 30 calendar days, DOE may instead, at its discretion, test either:

    (A) The available unit(s) and one or more of the other units that subsequently become available (up to a maximum of four); or

    (B) Up to four of the other units that subsequently become available.

    (4) For battery chargers, DOE will use a sample size of not more than 21 units and follow the sampling plan in appendix D of this subpart (Sampling Plan for Enforcement Testing of Battery Chargers).

    (5) For distribution transformers, DOE will use an initial sample size of not more than five units and follow the sampling plans in appendix C of this subpart (Sampling Plan for Enforcement Testing of Distribution Transformers). If fewer than five units of a basic model are available for testing when the manufacturer receives the test notice, then:

    (i) DOE will test the available unit(s); or

    (ii) If one or more other units of the basic model are expected to become available within 30 calendar days, the Department may instead, at its discretion, test either:

    (A) The available unit(s) and one or more of the other units that subsequently become available (up to a maximum of five); or

    (B) Up to five of the other units that subsequently become available.

    (6) Notwithstanding paragraphs (e)(1) through (4) of this section, if testing of the available or subsequently available units of a basic model would be impractical, as for example when a basic model has unusual testing requirements or has limited production, DOE may in its discretion decide to base the determination of compliance on the testing of fewer than the otherwise required number of units.

    (7) When DOE makes a determination in accordance with section (e)(6) to test less than the number of units specified in paragraphs (e)(1) through (4) of this section, DOE will base the compliance determination on the results of such testing in accordance with appendix B of this subpart (Sampling Plan for Enforcement Testing of Covered Equipment and Certain Low-Volume Covered Products) using a sample size (n1) equal to the number of units tested.

    (8) For the purposes of this section, available units are those that are available for distribution in commerce within the United States.

    4. Add appendix D to subpart C of part 429 to read as follows: Appendix D to Subpart C of Part 429—Sampling Plan for Enforcement Testing of Battery Chargers

    a. The initial sample size (n) for enforcement testing of battery chargers is four units.

    b. Test each unit in the sample according to the test procedure in 10 CFR part 430, subpart B, appendix Y, recording the following metrics: 24-hour energy (Wh), battery discharge energy (Wh), maintenance mode power (W), standby mode power (W), off mode power (W), and the duration of the charge and maintenance mode test.

    c. Compute the sample mean for each of the metrics, where

    ER06AU15.010 and, x is the sample mean; n is the number of samples; and xi is the ith sample.

    d. Compute Unit Energy Consumption (UEC) for the sample using the applicable equation from the applicable energy conservation standard for battery chargers in § 430.32 and the sample means for each of the metrics, as calculated in step c.

    e. Determine the applicable standard for the basic model being tested (ECS), using the sample mean for battery discharge energy.

    f. Compare the UEC to the ECS.

    g. If the UEC of the sample is greater than the ECS, then the basic model is not compliant.

    PART 430—ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS 5. The authority citation for part 430 continues to read as follows: Authority:

    42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.

    6. Section 430.2 is amended by adding in alphabetical order a definition for “back-up battery charger” to read as follows:
    § 430.2 Definitions.

    Back-up battery charger means a battery charger:

    (1) That is embedded in a separate end-use product that is designed to continuously operate using main power (AC or DC); and

    (2) Whose sole purpose is to recharge a battery used to maintain continuity of load power in case of input power failure.

    § 430.3 [Amended]
    7. In § 430.3, paragraph (p)(4) is amended by removing “and X” and adding in its place “X, and Y”. 8. In § 430.23, revise paragraph (aa) to read as follows:
    § 430.23 Test procedures for the measurement of energy and water consumption.

    (aa) Battery chargers. Measure battery discharge energy, expressed in watt-hours, in accordance with section 5.8 of appendix Y of this subpart. Measure the 24-hour energy consumption of a battery charger in active and maintenance modes, expressed in watt-hours, and the power consumption of a battery charger in maintenance mode, expressed in watts, in accordance with section 5.10 of appendix Y of this subpart. Measure the power consumption of a battery charger in standby mode and off mode, expressed in watts, in accordance with sections 5.11 and 5.12, respectively, of appendix Y of this subpart.

    9. Appendix Y to subpart B of part 430 is amended by: a. Revising the introductory text to appendix Y; b. Revising section 1. Scope; c. Revising Table 3.1 and section 3.2; d. Revising the undesignated center heading directly above section 4.1. General Setup; e. Revising section 4.3b. and Table 4.1; f. Revising sections 5.3a., 5.3c.(2)(i), 5.3d., 5.8c.(2); and g. Moving Table 5.2 to appear after section 5.8d. and revising it.

    The revisions and additions read as follows:

    Appendix Y to Subpart B of Part 430—Uniform Test Method for Measuring the Energy Consumption of Battery Chargers Note:

    On or after [DATE 180 DAYS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], any representation regarding the energy consumption of battery chargers must be based upon results generated under this test procedure. Upon the compliance date(s) of any energy conservation standard(s) for battery chargers, use of the applicable provisions of this test procedure to demonstrate compliance with the energy conservation standard will also be required.

    1. Scope

    This appendix covers the test requirements used to measure the energy consumption for battery chargers operating at either DC or United States AC line voltage (115V at 60Hz). This appendix does not provide a method for testing back-up battery chargers.

    3. * * *

    Table 3.1—List of Measured or Calculated Values Name of measured or calculated value Reference Duration of the charge and maintenance mode test (Hrs) Section 5.2. Battery Discharge Energy (Wh) Section 4.6. Initial time and power (W) of the input current of connected battery (A) Section 5.8. Active and Maintenance Mode Energy Consumption (W, Hrs) Section 5.6. Maintenance Mode Power (W) Section 5.9. 24-Hour Energy Consumption (Wh) Section 5.10. Standby Mode Power (W) Section 5.11. Off Mode Power (W) Section 5.12. 3.2. Verifying Accuracy and Precision of Measuring Equipment

    Any power measurements recorded, as well as any power measurement equipment utilized for testing, shall conform to the uncertainty and resolution requirements outlined in Section 4, “General conditions for measurements,” as well as Annexes B, “Notes on the measurement of low power modes,” and D, “Determination of uncertainty of measurement,” of IEC 62301 (incorporated by reference, see § 430.3).

    Unit Under Test Setup Requirements

    4.3. * * *

    b. From the detachable batteries specified above, use Table 4.1 of this appendix to select the batteries to be used for testing depending on the type of battery charger being tested. Each row in the table represents a mutually exclusive battery charger type. In the table, find the single applicable row for the UUT, and test according to those requirements. Select a single battery configuration for testing, according to the battery selection criteria in Table 4.1.

    If the battery selection criteria outlined in Table 4.1 results in two or more batteries of differing configurations, but with equal voltage and capacity ratings, use the battery that results in the highest maintenance mode power, as determined in section 5.9 of this appendix, for testing.

    Table 4.1—Battery Selection for Testing Type of charger Multi-voltage Multi-port Multi-capacity Tests to perform Battery selection
  • (from all configurations of all associated batteries)
  • No No No Any associated battery. No No Yes Highest charge capacity battery. No Yes Yes or No Use all ports and use the maximum number of identical batteries with the highest rated charge capacity that the charger can accommodate. Yes No No Highest voltage battery. Yes Yes to either or both Use all ports and use the battery or the configuration of batteries with the highest individual voltage and highest total rated energy capacity.

    5. * * *

    5.3. * * *

    a. No conditioning is to be done on lithium-ion batteries. Proceed directly to battery preparation, section 5.4 of this appendix, when testing chargers for these batteries.

    c. * * *

    (2) * * *

    (i) A battery analyzer at a rate not to exceed 1 C, until its average cell voltage under load reaches the end-of-discharge voltage specified in Table 5.2 of this appendix for the relevant battery chemistry, with the exception of VRLA and Flooded Lead Acid batteries with a capacity of greater than 1000Wh which may be discharged at .2C, .1C, or .05C and must be discharged to 50% of their rated voltage; or

    d. Batteries of chemistries, other than lithium-ion, that are known to have been through at least two previous full charge/discharge cycles shall be fully charged only once as in step c.(1) of this section.

    5.8. * * *

    c. * * *

    (2) Set the battery analyzer for a constant discharge current and the end-of-discharge voltage in Table 5.2 of this appendix for the relevant battery chemistry.

    Table 5.2—Required Battery Discharge Rates and End-of-Discharge Battery Voltages Battery chemistry Discharge rate (C) End-of-
  • discharge
  • voltage
  • (volts per cell)
  • Valve-Regulated Lead Acid (VRLA) 0.1 1.75 Flooded Lead Acid 0.1 1.70 Nickel Cadmium (NiCd) 0.2 1.0 Nickel Metal Hydride (NiMH) 0.2 1.0 Lithium Ion (Li-Ion) 0.2 2.5 Lithium Polymer 0.2 2.5 Rechargeable Alkaline 0.2 0.9 Nanophosphate Lithium Ion 0.2 2.0 Silver Zinc 0.2 1.2
    [FR Doc. 2015-19105 Filed 8-5-15; 8:45 a.m.] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY 10 CFR Parts 429 and 431 [Docket No. EERE-2015-BT-TP-0015] RIN 1904-AD54 Energy Conservation Program: Test Procedures for Small, Large, and Very Large Air-Cooled Commercial Package Air Conditioning and Heating Equipment AGENCY:

    Office of Energy Efficiency and Renewable Energy, Department of Energy.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    In this notice of proposed rulemaking (NOPR), the U.S. Department of Energy (DOE) proposes to reaffirm that the currently prescribed test procedure must be used when measuring the energy efficiency ratio, integrated energy efficiency ratio, and coefficient of performance for small, large, and very large air-cooled commercial unitary air conditioners (CUAC) and commercial unitary heat pumps (CUHP). With this test procedure rulemaking, DOE fulfills its obligation under EPCA to review its test procedures for covered equipment at least once every seven years and either amend the applicable test procedures or publish a determination in the Federal Register not to amend them. The proposed amendments would limit the incorporation by reference of the industry test procedure AHRI Standard 340/360-2007, “2007 Standard for Performance Rating of Commercial and Industrial Unitary Air-Conditioning and Heat Pump Equipment” to certain sections and addenda; specify requirements for indoor airflow tolerance and adjustment to meet other rating conditions; clarify requirements for condenser head pressure controls; clarify units of measurement for airflow; and establish a tolerance on part-load rating points. DOE also proposes to amend the certification, compliance, and enforcement provisions for CUACs and CUHPs to specify additional reporting requirements for indoor airflow and add enforcement provisions for verifying the rated cooling capacity, as the rated cooling capacity determines which class of equipment the product belongs to and also determines certain testing conditions.

    DATES:

    DOE will hold a public meeting on this proposed test procedure if one is requested by August 13, 2015. If a public meeting is requested, DOE will announce its date and location on the DOE Web site and via email. The meeting will also be broadcast as a webinar. DOE will accept comments, data, and information regarding this notice of proposed rulemaking (NOPR) before and after any public meeting, but no later than September 8, 2015. See section V, “Public Participation,” for details.

    ADDRESSES:

    Any comments submitted must identify the NOPR for Test Procedures for Small, Large, and Very Large Air-Cooled Commercial Package Air Conditioning and Heating Equipment, and provide docket number EERE-2015-BT-TP-0015 and/or regulatory information number (RIN) number 1904-AD54. Comments may be submitted using any of the following methods:

    1. Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.

    2. Email: [email protected] Include the docket number EERE-2015-BT-TP-0015 and/or RIN 1904-AD54 in the subject line of the message.

    3. Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, Mailstop EE-2J, 1000 Independence Avenue SW., Washington, DC, 20585-0121. If possible, please submit all items on a CD. It is not necessary to include printed copies.

    4. Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, 950 L'Enfant Plaza, SW., Suite 600, Washington, DC, 20024. Telephone: (202) 586-2945. If possible, please submit all items on a CD. It is not necessary to include printed copies.

    For detailed instructions on submitting comments and additional information on the rulemaking process, see section V, “Public Participation,” near the end of this document.

    Docket: The docket, which includes Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials, is available for review at regulations.gov. All documents in the docket are listed in the regulations.gov index. However, some documents listed in the index, such as those containing information that is exempt from public disclosure, may not be publicly available.

    A link to the docket Web page can be found at: [www.regulations.gov/#!docketDetail;D=EERE-2015-BT-TP-0015]. This Web page contains a link to the docket for this notice on the regulations.gov site. The regulations.gov Web page contains instructions on how to access all documents, including public comments, in the docket. See section V for information on how to submit comments through regulations.gov.

    For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact Ms. Brenda Edwards at (202) 586-2945 or by email: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Ashley Armstrong, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue SW., Washington, DC, 20585-0121. Telephone: (202) 586-9590, or email [email protected]

    For legal issues, please contact Mr. Michael Kido, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-8145. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    DOE intends to incorporate by reference the following industry standard into part 429: ANSI/AHRI Standard 340/360-2007, “2007 Standard for Performance Rating of Commercial and Industrial Unitary Air-Conditioning and Heat Pump Equipment,” approved by ANSI on October 27, 2011 and updated by addendum 1 in December 2010 and addendum 2 in June 2011 (AHRI 340/360-2007) ANSI/AHRI Standard 340/360-2007 is available at the Air-Conditioning, Heating, and Refrigeration Institute, 2111 Wilson Blvd., Suite 500, Arlington, VA 22201, (703) 524-8800, or go to: http://www.ahrinet.org.

    Table of Contents I. Authority and Background II. Summary of the Notice of Proposed Rulemaking III. Discussion A. Amendments to the Current DOE Test Procedure 1. Sections of ANSI/AHRI 340/360-2007 Incorporated by Reference 2. Indoor Airflow Adjustment and Reporting 3. Condenser Head Pressure Controls 4. Unit of Measurement for Airflow 5. Tolerance on Percent Load for IEER Part-Load Tests B. Certification and Enforcement Issues 1. Measuring Cooling Capacity for Purposes of Certification, Assessment, and Enforcement 2. Compliance Dates of the Test Procedure Amendments IV. Procedural Issues and Regulatory Review A. Review Under Executive Order 12866 B. Review Under the Regulatory Flexibility Act C. Review Under the Paperwork Reduction Act of 1995 D. Review Under the National Environmental Policy Act of 1969 E. Review Under Executive Order 13132 F. Review Under Executive Order 12988 G. Review Under the Unfunded Mandates Reform Act of 1995 H. Review Under the Treasury and General Government Appropriations Act, 1999 I. Review Under Executive Order 12630 J. Review Under Treasury and General Government Appropriations Act, 2001 K. Review Under Executive Order 13211 L. Review Under Section 32 of the Federal Energy Administration Act of 1974 M. Description of Material Incorporated by Reference V. Public Participation A. Submission of Comments B. Issues on Which DOE Seeks Comment VI. Approval of the Office of the Secretary I. Authority and Background

    Title III of the Energy Policy and Conservation Act of 1975 (42 U.S.C. 6291, et seq.; “EPCA” or, “the Act”) sets forth a variety of provisions designed to improve energy efficiency. (All references to EPCA in this document refer to the statute as amended through the Energy Efficiency Improvement Act of 2015, Pub. L. 114-11 (Apr. 30, 2015).) Part C of Title III, which for editorial reasons was redesignated as Part A-1 upon incorporation into the U.S. Code (42 U.S.C. 6311-6317, as codified), establishes the Energy Conservation Program for Certain Commercial and Industrial Equipment. This equipment includes small, large, and very large air-cooled commercial package air conditioning and heating equipment—which includes commercial unitary air conditioners (CUACs) and commercial unitary heat pumps (CUHPs), the subjects of today's notice. (42 U.S.C. 6311(1)(B)-(D))

    Under EPCA, the energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered equipment must use as the basis for (1) certifying to DOE that their equipment complies with applicable energy conservation standards adopted under EPCA, and (2) making representations about the efficiency of the equipment. Similarly, DOE must use these test procedures to determine whether the equipment complies with any relevant standards promulgated under EPCA.

    General Test Procedure Rulemaking Process

    In 42 U.S.C. 6314, EPCA sets forth the general criteria and procedures DOE must follow when prescribing or amending test procedures for covered equipment. EPCA provides in relevant part that any test procedures prescribed or amended under this section must be reasonably designed to produce test results which measure energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle or period of use and must not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(2)) In addition, if DOE determines that a test procedure amendment is warranted, it must publish proposed test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6314(b))

    DOE is also required by EPCA to conduct an evaluation of test procedures at least every seven years for each class of covered equipment (including CUACs and CUHPs) to determine if an amended test procedure would more accurately or fully comply with the requirement to be reasonably designed to produce test results that reflect the energy efficiency, energy use, and operating costs during a representative average use cycle. DOE must either prescribe amended test procedures or publish a notice in the Federal Register regarding its determination not to amend test procedures. (42 U.S.C. 6314(a)(1)-(2))

    Background

    DOE's test procedure for CUACs and CUHPs is codified at Title 10 of the Code of Federal Regulations (CFR), section 431.96. The current regulations require that manufacturers use ANSI/AHRI Standard 340/360-2007, “2007 Standard for Performance Rating of Commercial and Industrial Unitary Air-Conditioning and Heat Pump Equipment” (henceforth referred to as ANSI/AHRI 340/360-2007) when measuring the efficiency of a given CUAC or CUHP and certifying that equipment as compliant with the applicable standard.1 77 FR 28928, 28990 (May 16, 2012).

    1 DOE notes that for purposes of this notice, all references to ANSI/ASHRAE 340/360-2007 include Addenda 1 and 2 to this industry-based standard.

    On February 1, 2013, DOE published a request for information and notice of document availability regarding energy conservation standards for CUACs and CUHPs. 78 FR 7296. The request for information solicited information from the public to help DOE determine whether national standards more stringent than those that are currently in place would result in a significant amount of additional energy savings and whether those national standards would be technologically feasible and economically justified. DOE also sought information from the public on the merits of adopting the integrated energy efficiency ratio (IEER) as the energy efficiency descriptor for small, large, and very large air-cooled commercial air conditioners and heat pumps. Currently, manufacturers must measure the energy efficiency of their equipment using the energy efficiency ratio (EER), which provides a measurement of the full-load efficiency of a given unit. The procedure to follow when measuring and calculating that value, like the proposed IEER metric, is found in ANSI/ASHRAE 340/360-2007. See ANSI/ASHRAE 340/360-2007 at sec. 6. Comments received on the topic of IEER are discussed in a related energy conservation standards NOPR, which was published in September 2014. 79 FR 58948 (Sept. 30, 2014).

    Subsequently, on April 1, 2015, DOE issued a notice of intent to establish the Commercial Package Air Conditioners and Heat Pumps and Commercial Warm Air Furnaces Working Group to negotiate either a notice of proposed rulemaking (NOPR) or final rule for energy conservation standards for this equipment. 80 FR 17363. This Working Group was established under the Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC) in accordance with the Federal Advisory Committee Act and the Negotiated Rulemaking Act. See 5 U.S.C. Appendix—Federal Advisory Committee Act and 5 U.S.C. 561-570a. The Working Group, which consisted of 17 members, including one member from ASRAC and one DOE representative, met six times (five times in-person and once by teleconference). The meetings were held on April 28, May 11-12, May 20-21, June 1-2, June 9-10, and June 15, 2015. The Working Group successfully reached consensus on energy conservation standards for commercial package air conditioners and heat pumps and commercial warm air furnaces, which included the Working Group's recommendations to ASRAC on the energy conservation standards. The group also chose to provide test procedure and metric-related recommendations to the committee. ASRAC voted unanimously to approve the Working Group's recommendations on June 17, 2015. Consistent with those recommendations, DOE proposes to amend the test procedure and associated certification regulations for small, large, and very large air-cooled commercial package air conditioning and heating equipment to implement the Working Group's recommendations. Participants in the Working Group consisted of the following entities aside from DOE:

    Participant Acronym,
  • abbreviation
  • Affiliation
    Air Conditioning Contractors of America ACCA Contractor/Installer Group. Air-Conditioning, Heating, and Refrigeration Institute AHRI HVAC Manufacturers Group. Appliance Standards Awareness Project ASAP Energy Efficiency Advocacy Group. Emerson Climate Technologies Emerson Manufacturer. Goodman Manufacturing Goodman Manufacturer. Lennox International Lennox Manufacturer. Mitsubishi Electric Mitsubishi Manufacturer. Natural Resources Defense Council NRDC Energy Efficiency Advocacy Group. Northwest Energy Efficiency Alliance NEEA Energy Efficiency Advocacy Group. Pacific Gas & Electric Company, San Diego Gas & Electric Company, Southern California Edison, and Southern California Gas Company Cal. IOUs Investor-Owned Utilities. Rheem Manufacturing Company Rheem Manufacturer. Sheet Metal and Air Conditioning Contractors National Association, Inc. SMACCNA Contractor/Installer Group. Trane/Ingersoll Rand Trane Manufacturer. United Technologies Corporation (Carrier) Carrier Manufacturer. Underwriters Laboratories UL Test Lab.

    DOE considers the activity associated with this rulemaking sufficient to satisfy the statutory requirement that DOE review its test procedures for all covered equipment, including CUACs and CUHPs, at least once every seven years and either amend the applicable test procedures or publish a determination in the Federal Register not to amend them. (42 U.S.C. 6314(a)(1))

    II. Summary of the Notice of Proposed Rulemaking

    DOE is proposing several amendments to its regulations related to the test procedures prescribed for CUACs and CUHPs in 10 CFR part 431, subpart F. First, DOE proposes to amend the current DOE test procedure to incorporate only certain sections of ANSI/AHRI 340/360-2007 rather than in its entirety. Second, DOE proposes amendments to incorporate a tolerance on the indoor airflow rate. In particular, during full load testing in cooling mode, the indoor airflow rate would be required to remain within +/−5 percent of the rated full-load indoor airflow. The unit and/or test facility must be adjusted to maintain this tolerance for indoor airflow rate while ensuring that the ESP remains within the tolerance required by the test procedure. For any other condition using full-load airflow (e.g. full-load heating for a heat pump), the +/−5 percent tolerance would also apply and, if necessary, a test facility adjustment would be made in order to maintain air flow within the required tolerance, but the unit itself may not be adjusted. Third, DOE proposes to clarify that condenser head pressure controls, if included with the unit, must be active during testing. Fourth, DOE proposes to clarify that reference to cubic feet per minute (CFM) in ANSI/AHRI 340/360-2007 must be interpreted as referring to standard CFM (SCFM). Fifth, DOE proposes that when conducting part-load testing to measure IEER, the difference between the percent load calculated for a part-load test point and its target value may be as much as three percent without requiring interpolation or application of the cyclic degradation factor specified in ANSI/AHRI 340/360-2007. Sixth, DOE proposes to amend the certification, compliance, and enforcement provisions for CUACs and CUHPs. These amendments include adding enforcement provisions for verifying the cooling capacity, as the cooling capacity determines which class of equipment the product belongs to and also determines certain testing conditions. Lastly, DOE has proposed a definition of integrated energy efficiency ratio (IEER).

    DOE believes that none of these clarifications or amendments would result in any changes to the energy efficiency of current equipment. Representations of energy efficiency metrics would be required to be based on the amended test procedure beginning 360 days after the date of publication of the final rule. 42 U.S.C. 6314(d) (prescribing a 360-day period after a test procedure's publication by which manufacturer representations of energy consumption or energy costs must be based on that procedure).

    III. Discussion A. Amendments to the Current DOE Test Procedure

    DOE proposes making several amendments to the current DOE test procedure, which incorporates ANSI/AHRI 340/360-2007 by reference. These amendments are detailed below.

    1. Sections of ANSI/AHRI 340/360-2007 Incorporated by Reference

    Currently, 10 CFR 431.96, Table 2, specifies that when measuring the energy efficiency of CUACs and CUHPs using the metrics EER and coefficient of performance (COP), ANSI/AHRI 340/360-2007 must be used, but omitting section 6.3 of that industry testing standard. DOE proposes that when testing CUACs and CUHPs using the EER, COP, and IEER metrics, only certain sections of ANSI/AHRI 340/360-2007 are required, specifically sections 3, 4, and 6 (but, again, omitting section 6.3), rather than applying the entirety of ANSI/AHRI 340/360-2007. The sections DOE proposes to incorporate are those that include the relevant testing provisions that apply directly to the DOE test procedure, while the excluded sections contain provisions unrelated to the DOE test procedure. DOE proposes not to incorporate section 5 of ANSI/AHRI 340/360-2007, which consists of a single sentence referring to use of ASHRAE 37, “Methods of Testing for Rating Unitary Air-Conditioning and Heat Pump Equipment,” for test methods and procedures. DOE proposes this change because the version of this test method is not specified. Instead, DOE proposes to incorporate by reference the most recent version of this test procedure—ANSI/ASHRAE 37-2009. The test standard would be listed in 10 CFR 431.95, and incorporated by reference in 10 CFR 431.96. In case of a conflict between ANSI/AHRI 340/360-2007 or ANSI/ASHRAE 37-2009 and the CFR, the CFR provisions control.

    2. Indoor Airflow Adjustment and Reporting

    Section 6.1.3.2 of ANSI/AHRI 340/360-2007 establishes minimum external static pressure (ESP) rating requirements for different equipment capacities and requirements for the indoor-coil airflow rate for determining standard ratings. DOE notes that AHRI 340/360 also refers to ESP as “external pressure” and “external resistance.” Section 6.1.3.2 establishes a tolerance of −0 in. H2O to +0.05 in. H2O for ESP (i.e., the measured ESP may not be any lower but can be up to 0.05 in. H2O higher than the required minimum) but does not contain a tolerance for the airflow rate. Manufacturers are currently required to report, among other information, the model number and specifications of the motor and the drive kit, including settings, associated with that specific motor that were used to determine the certified rating; as well as the rated airflow in SCFM for each fan coil; in the supplemental information submitted with the certification report for the unit. (See 10 CFR 429.43(b)(4)(i))

    DOE proposes that any subsequent testing (e.g., DOE assessment and enforcement testing) must use the same motor and drive assembly and settings specified in the certification information, and that the party conducting testing would be required to ensure that the ESP is within the tolerances set forth in Section 6.1.3.2 of ANSI/AHRI 340/360-2007 and must verify that the indoor airflow rate is within +/−5 percent of the manufacturer-rated full-load indoor airflow rate. If the indoor airflow in SCFM measured at the required ESP is outside the +/−5 percent tolerance, the unit and/or test facility must be adjusted to set up the unit such that both the airflow and ESP are within the required tolerances. This process may include, but is not limited to, adjusting any adjustable motor sheaves, adjusting variable frequency drive (VFD) settings, or adjusting the code tester fan. DOE believes that the proposed 5 percent tolerance on airflow is an appropriate compromise of test burden and precision because holding this tolerance has been possible without difficulty in DOE's own testing, and because testing and analysis shows that the impact of up to 5 percent airflow rate variation on capacity and IEER is minimal. For example, DOE testing of a 7.5-ton CUAC unit suggested that 5 percent variation in the full-load airflow would cause 0.5 percent variation in EER and 0.8 percent variation in capacity. DOE also used data available in manufacturer data sheets to calculate IEER as a function of indoor airflow for several commercial air conditioners and determined that a 5 percent variation in airflow would be expected to cause, on average, a 1.5 percent variation in IEER. (See EERE-2015-BT-TP-0015.) DOE requests comment on the appropriateness of the +/−5 percent tolerance and/or data that might show that a different tolerance level might be more appropriate. This is Issue 1 in section V.B, “Issues on Which DOE Seeks Comment.”

    ANSI/AHRI 340/360-2007, section 6.1.3.2.e specifies that the full-load cooling airflow rate must be employed for any other condition using full-load air flow (e.g., full-load heating) without regard to resulting ESP. DOE proposes that the +/−5 percent tolerance for air flow rate must be applied for these other conditions as well. If necessary, a test facility adjustment may have to be made in order to maintain air flow within the required tolerance; for example, adjustment of the code tester fan may be needed to ensure air flow within the specified tolerance range even if the ESP is no longer within the range specified for operation in full-capacity cooling mode. (In this situation, the tester would not adjust the unit under test.) DOE requests comments on this interpretation and clarification of the requirements of ANSI/AHRI 340/360-2007, section 6.1.3.2.e, regarding operation in modes other than full-capacity cooling. This is Issue 2 in section V.B, “Issues on Which DOE Seeks Comment.”

    DOE realizes that some units may be designed to operate with a different indoor airflow rate for cooling or heating mode, such as when the unit incorporates variable speed indoor fans. In that case, DOE proposes that manufacturers would report the individual indoor airflow rates in cooling and heating mode. DOE is proposing this approach in order to capture air flow rates used in the different full-load tests (i.e., heating and cooling). DOE requests comment on whether marketed units actually operate in this manner, and if so, whether this proposed provision would be appropriate for such units. This is Issue 3 in section V.B, “Issues on Which DOE Seeks Comment.”

    DOE also proposes that a manufacturer must include in its certification report the adjusted indoor airflow at each part-load condition. Inclusion of these part-load air flow rates would allow confirmation that, during any subsequent third-party testing, the equipment is operating at part-load as rated.

    3. Condenser Head Pressure Controls

    Note 2 of Table 6 of ANSI/AHRI 340/360-2007 specifies that condenser airflow should be adjusted as required by the unit controls for head pressure control. Condenser head pressure controls regulate the flow of refrigerant through the condenser and/or adjust operation of condenser fans to prevent condenser pressures from dropping too low during low-ambient operation. When employed, these controls ensure that the refrigerant pressure is high enough to maintain adequate flow through refrigerant expansion devices such as thermostatic expansion valves. The use of condenser head pressure controls influences a unit's performance, making it important that this feature be operating during the test because it would be operating in the field. DOE proposes to specify that condenser head pressure controls, if included with the unit, must be active during testing.

    The use of condenser head pressure controls may prevent a unit from reaching steady state prior to testing. For example, a unit employing condenser head pressure control might cycle a condenser fan to control head pressure. The current DOE test procedure does not address such operation. Hence, if a unit with condenser head pressure controls cannot achieve steady-state operation with the controls active, and thus cannot be tested, the manufacturer would have to request a waiver. See 10 CFR 431.401 (“Any interested person may submit a petition to waive for a particular basic model the requirements of any uniform test method contained in this part, upon the grounds that . . . the basic model contains one or more design characteristics that prevent testing of the basic model according to the prescribed test procedures.”) DOE requests comment on whether there are any units sold for which this might occur and what changes, if any, may be needed to DOE's proposal to address this scenario. This is Issue 4 in section V.B, “Issues on Which DOE Seeks Comment.”

    4. Unit of Measurement for Airflow

    ANSI/AHRI 340/360-2007 lacks clarity regarding references to CFM as opposed to SCFM. In order to resolve this, DOE proposes that all instances of CFM as a unit of airflow must be interpreted to mean SCFM where they appear in the sections of ANSI/AHRI 340/360-2007 incorporated by reference in 10 CFR part 431, subpart F.

    5. Tolerance on Percent Load for IEER Part-Load Tests

    For calculating IEER, section 6.2.2 of ANSI/AHRI 340/360-2007 specifies that the unit efficiency must be determined at 100 percent, 75 percent, 50 percent, and 25 percent load (defined as part-load net cooling capacity divided by full-load net cooling capacity, then multiplied by 100 percent) at the conditions specified in Table 6 of ANSI/AHRI 340/360-2007 (Table 6). ANSI/AHRI 340/360-2007 also provides instruction for when a unit cannot operate at the 75 percent, 50 percent, and 25 percent part-load test points, but does not specify a tolerance for the percent load, i.e. how much can the load deviate from the part-load test point and still be considered operating at the part-load test point. For example, if the calculated percent load for one of the part-load tests is 75.5 percent, are the results of this test acceptable for use as the 75 percent part-load test point condition?

    DOE proposes to apply a+/−3 percent tolerance to each part load test point. In other words, the difference between the percent load calculated for a part-load test point and its target value may be as much as 3 percent and still be considered to be operating at the target part-load test point. DOE anticipates that this proposal will reduce testing time and burden by eliminating additional part-load tests in cases where operation closely approaches but does not exactly meet the target part-load test points. DOE requests comment on establishing this tolerance and on the appropriateness of the proposed tolerance level. This is Issue 5 in section V.B, “Issues on Which DOE Seeks Comment.”

    B. Certification and Enforcement Issues 1. Measuring Cooling Capacity for Purposes of Certification, Assessment, and Enforcement

    Manufacturers must certify and report CUAC and CUHP cooling capacity (in Btu/h) when certifying the efficiency of this equipment, per 10 CFR 429.43(b)(2). The cooling capacity represented by manufacturers for certification and compliance purposes must be determined through testing in accordance with 10 CFR 431.96. DOE proposes that the cooling capacity certified to DOE for a given basic model must be the average of the capacities measured for the sample of units tested to certify that basic model, rounded according to the multiples in Table 4 in ANSI/AHRI 340/360-2007.

    DOE proposes that when conducting assessment and enforcement testing, the total cooling capacity must be measured pursuant to the test requirements of 10 CFR 431.96 for each unit tested, and the results of the measurement(s) (either the measured cooling capacity for a single unit sample or the average of the measured cooling capacities for a multiple-unit sample) compared to the value of cooling capacity certified by the manufacturer. The manufacturer-certified cooling capacity will be considered valid if the cooling capacity determined through DOE testing is within five percent of the certified cooling capacity.

    2. Compliance Dates of the Test Procedure Amendments

    In amending a test procedure for small, large, or very large commercial package air conditioning and heating equipment, EPCA directs DOE to determine to what extent, if any, the test procedure would alter the measured energy efficiency or measured energy use of a covered product. (42 U.S.C. 6314(a)(4)) If the amended test procedure alters the measured energy efficiency or measured energy use, the Secretary must amend the applicable energy conservation standard accordingly. (42 U.S.C. 6314(a)(4) (requiring that the provisions of 42 U.S.C. 6293(e), which includes determining the impact that changes to a test procedure would have on the measured energy efficiency or energy use of a covered product))

    In DOE's view, no aspect of this NOPR is likely to alter the measured efficiency of CUACs and CUHPs. These proposed amendments, which follow the Working Group's recommendations, relate to DOE's efforts to establish amended energy conservation standards for CUACs and CUHPs. As part of that standards rulemaking effort, DOE had proposed, and the Working Group adopted, an approach that would base the amended standards for this equipment on IEER instead of EER. See 79 FR 58947 at 58956 (September 30, 2014); ASRAC Commercial Package Air Conditioners and Commercial Warm Air Furnaces Working Group Term Sheet, at 2 (June 15, 2015). DOE has also proposed a definition of IEER to support the Working Group's approach. Consistent with this transition to IEER as the reporting metric for this equipment, DOE proposes to require the reporting of indoor part-load airflow rates used in the IEER calculation as of the compliance date of the new standard. DOE also proposes another amendment associated with the measurement of IEER—applying a +/− 3 percent tolerance to each part-load test point for IEER ratings. This proposed amendment, if adopted, would be required as of the compliance date of the new standard.

    The proposed amendments not specifically related to IEER would, rather than alter the measured efficiency or measured energy use of CUAC and CUHP equipment, clarify how to test this equipment. These proposed amendments would limit the incorporation by reference of ANSI/AHRI 340/360-2007 to certain sections, establish a tolerance on full-load indoor airflow, add condenser head pressure control requirements, and clarify units of measurement for airflow. These proposals, if adopted, would result in no procedural changes related to how testing would be performed. These proposed amendments, if adopted, would become effective 30 days after publication of the final rule in the Federal Register. Consistent with 42 U.S.C. 6314(d), any representations of energy consumption of CUACs and CUHPs must be based on any final amended test procedures 360 days after the publication of the test procedure final rule.

    IV. Procedural Issues and Regulatory Review A. Review Under Executive Order 12866

    The Office of Management and Budget (OMB) has determined that test procedure rulemakings do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget.

    B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis (IRFA) for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the DOE rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's Web site: http://energy.gov/gc/office-general-counsel.

    DOE reviewed today's proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. This proposed rule prescribes test procedures that will be used to test compliance with energy conservation standards for the equipment that are the subject of this rulemaking. DOE has tentatively concluded that the proposed rule would not have a significant impact on a substantial number of small entities.

    For manufacturers of small, large, and very large air-cooled CUAC and CUHP, the Small Business Administration (SBA) has set a size threshold, which defines those entities classified as “small businesses” for the purposes of the statute. DOE used the SBA's small business size standards to determine whether any small entities would be subject to the requirements of the rule. 65 FR 30836, 30848 (May 15, 2000), as amended at 65 FR 53533, 53544 (Sept. 5, 2000) and codified at 13 CFR part 121. The size standards are listed by North American Industry Classification System (NAICS) code and industry description and are available at http://www.sba.gov/category/navigation-structure/contracting/contracting-officials/small-business-size-standards. Manufacturing of small, large, and very large air-cooled CUAC and CUHP is classified under NAICS 333415, “Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing.” The SBA sets a threshold of 750 employees or less for an entity to be considered as a small business for this category. DOE initially identified 12 potential manufacturers of commercial packaged air conditioners sold in the U.S. DOE then determined that 10 were large manufacturers, manufacturers that are foreign-owned and -operated, or manufacturers that do not produce products covered by this rulemaking. DOE was able to determine that 2 manufacturers meet the SBA's definition of a “small business” and manufacture products covered by this rulemaking.

    DOE expects the impact of the proposed rule on manufacturers, including small businesses, to be minimal. The proposed rule would amend DOE's certification requirements to specify additional reporting requirements and add enforcement provisions for verifying cooling capacity. The proposed rule would also clarify or amend DOE's test procedures to amend AHRI Standard 340/360-2007, “2007 Standard for Performance Rating of Commercial and Industrial Unitary Air-Conditioning and Heat Pump Equipment,” to incorporate certain sections by reference, specify requirements for airflow adjustment and tolerance to meet other rating conditions, require units with condenser head pressure controls to be tested with those controls active, clarify the unit of measurement for airflow, and establish a tolerance on part-load rating points.

    The Working Group has recommended amended energy conservation standards rulemaking that the standards will be based on the metric of integrated energy efficiency ratio (IEER) instead of energy efficiency ratio (EER). DOE expects the impact on test burden to be modest. AHRI ratings already include IEER, indicating that many manufacturers, representing a large portion of the market, already determine IEER for their units. ANSI/ASHRAE/IES Standard 90.1-2013—Energy Standard for Buildings Except Low-Rise Residential Buildings (ASHRAE 90.1-2013) has adopted an IEER requirement, which makes reporting of IEER necessary for shipment to those states and localities that will adopt that standard in building codes. Current procedures relating to alternative efficiency determination methods (AEDMs), including procedures for certifying IEER, require a limited amount of testing to be conducted when validating an AEDM for CUACs and CUHPs. 10 CFR 429.70(c)(2)(iv) (detailing the minimum number of distinct basic models required to be test for purposes of AEDM validation for different equipment types and classes) . DOE expects that most CUAC and CUHP ratings will be based on results obtained from AEDMs. Although DOE recognizes that some ratings will be based on testing, DOE expects these ratings to comprise a small minority of products.

    However, to help DOE better understand the burdens when measuring IEER instead of EER, DOE requests comment and data on manufacturer expectations of the number of models that will likely be tested rather than rated with an AEDM. DOE encourages confidential data submissions if necessary in order to ensure that such data can be provided.

    For these reasons, DOE certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE will transmit the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the SBA for review under 5 U.S.C. 605(b).

    C. Review Under the Paperwork Reduction Act of 1995

    Manufacturers of small, large, and very large air-cooled CUAC and CUHP equipment must certify to DOE that their equipment complies with any applicable energy conservation standards. In certifying compliance, manufacturers must test their equipment according to the appropriate DOE test procedures for this equipment, including any applicable amendments. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including CUACs and CUHPs. See 10 CFR part 429, subpart B. The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (PRA).

    In the Certification of Commercial Equipment Final Rule published in May 2014, DOE amended existing regulations governing compliance certification for a variety of commercial equipment covered by EPCA, which affected CUAC and CUHP manufacturers. 79 FR 25486 at 25502 (May 5, 2014). In today's NOPR, DOE proposes to amend its certification requirements to specify additional reporting requirements. DOE does not believe that these additions to the certification requirements constitute a significant additional burden upon respondents, as they require minimal additional information to what manufacturers must already report in their certification reports. DOE believes that the Certification of Commercial Equipment Final Rule provides an accurate estimate of the existing burden on respondents and would continue to apply to the relevant aspects of the proposed amendments. See 79 FR at 25496-25498 (detailing burden estimates and indicating an average burden of approximately 30 hours per company on an annual basis). OMB has approved the revised information collection for DOE's certification and recordkeeping requirements. 80 FR 5099 (January 30, 2015).

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

    D. Review Under the National Environmental Policy Act of 1969

    In this proposed rule, DOE proposes test procedure amendments that it expects will be used to develop and implement future energy conservation standards for commercial unitary air conditioners and commercial unitary heat pumps. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and DOE's implementing regulations at 10 CFR part 1021. Specifically, this proposed rule would amend the existing test procedures without affecting the amount, quality or distribution of energy usage, and, therefore, would not result in any environmental impacts. Thus, this rulemaking is covered by Categorical Exclusion A5 under 10 CFR part 1021, subpart D, which applies to any rulemaking that interprets or amends an existing rule without changing the environmental effect of that rule. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

    E. Review Under Executive Order 13132

    Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the equipment that is the subject of today's proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.

    F. Review Under Executive Order 12988

    Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of Executive Order 12988.

    G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at http://energy.gov/gc/office-general-counsel. DOE examined this proposed rule according to UMRA and its statement of policy and determined that the proposed rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure of $100 million or more in any year, so these requirements do not apply.

    H. Review Under the Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

    I. Review Under Executive Order 12630

    DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (March 18, 1988), that this regulation would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

    J. Review Under Treasury and General Government Appropriations Act, 2001

    Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed today's proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

    K. Review Under Executive Order 13211

    Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

    Today's regulatory action to amend the test procedure for measuring the energy efficiency of CUACs and CUHPs is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.

    L. Review Under Section 32 of the Federal Energy Administration Act of 1974

    Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (FTC) concerning the impact of the commercial or industry standards on competition.

    The proposed rule incorporates testing methods contained in the following commercial standards: ANSI/AHRI Standard 340/360-2007 and ANSI/ASHRAE Standard 37-2009. The Department has evaluated these standards and is unable to conclude whether they fully comply with the requirements of section 32(b) of the FEAA, (i.e., that they were developed in a manner that fully provides for public participation, comment, and review). DOE will consult with the Attorney General and the Chairman of the FTC concerning the impact of these test procedures on competition, prior to prescribing a final rule.

    M. Description of Materials Incorporated by Reference

    DOE is proposing to incorporate by reference ANSI/AHRI Standard 340/360-2007 (with Addenda 1 and 2), “2007 Standard for Performance Rating of Commercial and Industrial Unitary Air-Conditioning and Heat Pump Equipment.” This is an industry-accepted standard used by manufacturers when testing and rating the performance of commercial and industrial unitary air-conditioning and heat pump equipment. Copies of this testing standard are available for download at http://www.ahrinet.org/App_Content/ahri/files/standards%20pdfs/ANSI%20standards%20pdfs/ANSI%20AHRI%20Standard%20340-360-2007%20with%20Addenda%201%20and%202.pdf.

    V. Public Participation A. Submission of Comments

    DOE will accept comments, data, and information regarding this proposed rule before or after the public meeting, but no later than the date provided in the DATES section at the beginning of this proposed rule. Interested parties may submit comments using any of the methods described in the ADDRESSES section at the beginning of this notice.

    Submitting comments via regulations.gov. The regulations.gov Web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

    However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

    Do not submit to regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (CBI)). Comments submitted through regulations.gov cannot be claimed as CBI. Comments received through the Web site will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

    DOE processes submissions made through regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that regulations.gov provides after you have successfully uploaded your comment.

    Submitting comments via email, hand delivery, or mail. Comments and documents submitted via email, hand delivery, or mail also will be posted to regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information on a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

    Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery, please provide all items on a CD, if feasible. It is not necessary to submit printed copies. No facsimiles (faxes) will be accepted.

    Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English and free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

    Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

    Confidential Business Information. According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email, postal mail, or hand delivery two well-marked copies: One copy of the document marked confidential including all the information believed to be confidential, and one copy of the document marked non-confidential with the information believed to be confidential deleted. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

    Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.

    It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

    B. Issues on Which DOE Seeks Comment

    Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:

    1. DOE proposes that when conducting full-load cooling tests with the appropriate external static pressure (ESP) condition in Table 5 of ANSI/AHRI 340/360-2007, the tester must use the motor and drive kit that was used to determine the certified rating, as specified in the manufacturer's certification information. During such testing, the indoor airflow must be within +/−5 percent of the manufacturer's rated full-load indoor airflow rate. If the indoor airflow at the required ESP is outside the +/−5 percent tolerance, make necessary adjustments to the test setup and/or the unit such that both the airflow and ESP are within the required tolerances. DOE requests comment on the appropriateness of the +/−5 percent tolerance and/or data showing that a different tolerance level might be more appropriate, as well as feedback on the burden of maintaining airflow within the tolerance. See section III.A.2 for details.

    2. Section 6.1.3.2.e of ANSI/AHRI 340/360-2007 specifies that the full-load cooling airflow rate must be maintained for any other condition using full-load air flow (e.g., full-load heating) without regard to resulting ESP. DOE proposes that in this situation, the +/−5 percent tolerance on the full-load cooling airflow rate must also apply. To maintain the airflow within the required tolerance, the tester may make adjustments to the test facility or apparatus, but not the unit being tested. DOE requests comments on this interpretation and clarification of the requirements of section 6.1.3.2.e of ANSI/AHRI 340/360-2007 regarding operation in modes other than full-capacity cooling. See section III.A.2 for details.

    3. For all units, certification requirements already include reporting of the indoor airflow at full capacity cooling operation. If units are designed to operate with a different indoor airflow for cooling and heating mode, DOE proposes that manufacturers would separately report the indoor airflow in cooling and heating mode. DOE requests comment on whether this approach is appropriate and also requests comment on whether any units in the market are designed to operate with a different full-load air flow for heating and cooling modes. See section III.A.2 for details.

    4. DOE proposes that condenser head pressure controls, if included in a unit, must be active during testing. DOE requests comment on whether there are any units on the market with condenser head pressure controls that would prevent the unit from achieving steady state under the test conditions. If so, how should DOE address these kinds of units for testing purposes? See section III.A.3 for details.

    5. For calculating IEER, section 6 of ANSI/AHRI 340/360-2007 specifies that the unit efficiency must be determined at 100 percent, 75 percent, 50 percent, and 25 percent load (defined as net part-load cooling capacity divided by full-load net cooling capacity times 100 percent). ANSI/AHRI 340/360-2007 also provides instruction for when a unit cannot operate at the 75 percent, 50 percent, and 25 percent part-load test points, but does not specify a tolerance for the percent load, i.e. how much can the load deviate from the part-load test point and still be considered operating at the part-load test point. DOE proposes to apply a +/−3 percent tolerance on the percent load for approach to each part-load rating point. In other words, the difference between the percent load calculated for a part-load test point and its target value may be as much as 3 percent and still be considered to be operating at the target part-load test point. DOE requests comment on the appropriateness of the tolerance level. See section III.A.5 for details.

    VI. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this proposed rule.

    List of Subjects 10 CFR Part 429

    Confidential business information, Energy conservation, Commercial equipment, Imports, Incorporation by reference, Reporting and recordkeeping requirements.

    10 CFR Part 431

    Administrative practice and procedure, Confidential business information, Energy conservation, Commercial equipment, Imports, Incorporation by reference, Intergovernmental relations, Small businesses.

    Issued in Washington, DC, on July 27, 2015. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.

    For the reasons stated in the preamble, DOE proposes to amend parts 429 and 431 of Chapter II, Subchapter D, of Title 10 the Code of Federal Regulations as set forth below:

    PART 429—CERTIFICATION, COMPLIANCE AND ENFORCEMENT FOR CONSUMER PRODUCTS AND COMMERCIAL AND INDUSTRIAL EQUIPMENT 1. The authority citation for part 429 continues to read as follows: Authority:

    42 U.S.C. 6291-6317.

    2. Amend § 429.4 by redesignating paragraph (c) as (d) and adding a new paragraph (c) to read as follows:
    § 429.4 Materials incorporated by reference.

    (c) AHRI. Air-Conditioning, Heating, and Refrigeration Institute, 2111 Wilson Blvd., Suite 500, Arlington, VA 22201, (703) 524-8800, or go to: http://www.ahrinet.org.

    (1) ANSI/AHRI Standard 340/360-2007, “2007 Standard for Performance Rating of Commercial and Industrial Unitary Air-Conditioning and Heat Pump Equipment,” approved by ANSI on October 27, 2011 and updated by addendum 1 in December 2010 and addendum 2 in June 2011 (AHRI 340/360-2007), IBR approved for § 429.43.

    (2) Reserved.

    3. Amend § 429.43 by revising paragraphs (a)(1)(iii), (b)(2)(i) and (ii), (b)(4)(i) and (ii), to read as follows:
    § 429.43 Commercial heating, ventilating, air conditioning (HVAC) equipment.

    (a) * * *

    (1) * * *

    (iii) For commercial unitary air conditioners and commercial unitary heat pumps the represented value of cooling capacity must be the average of the capacities measured for the units in the sample selected as described in paragraph (a)(1)(ii) of this section, rounded to the nearest appropriate Btu/h multiple according to Table 4 of ANSI/AHRI 340/360-2007 (incorporated by reference, see § 429.43).

    (b) * * *

    (2) * * *

    (i) Commercial package air-conditioning equipment (except commercial package air conditioning equipment that is air-cooled with a cooling capacity less than 65,000 Btu/h):

    (A) When certifying compliance with the January 1, 2010 energy conservation standards: The energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/Wh)), the rated cooling capacity in British thermal units per hour (Btu/h), and the type(s) of heating used by the basic model (e.g., electric, gas, hydronic, none).

    (B) When certifying compliance with the January 1, 2018 or the January 1, 2023 energy conservation standards: The integrated energy efficiency ratio (IEER in British thermal units per Watt-hour (Btu/Wh)), the rated cooling capacity in British thermal units per hour (Btu/h), and the type(s) of heating used by the basic model (e.g., electric, gas, hydronic, none).

    (ii) Commercial package heating equipment (except commercial package heating equipment that is air-cooled with a cooling capacity less than 65,000 Btu/h):

    (A) When certifying compliance with the January 1, 2010 energy conservation standards: The energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/Wh)), the coefficient of performance (COP), the rated cooling capacity in British thermal units per hour (Btu/h), and the type(s) of heating used by the basic model (e.g., electric, gas, hydronic, none).

    (B) When certifying compliance with the January 1, 2018 or the January 1, 2023 energy conservation standards: The integrated energy efficiency ratio (IEER in British thermal units per Watt-hour (Btu/Wh)), the coefficient of performance (COP), the rated cooling capacity in British thermal units per hour (Btu/h), and the type(s) of heating used by the basic model (e.g., electric, gas, hydronic, none).

    (4) * * *

    (i) Commercial package air-conditioning equipment (except commercial package air conditioning equipment that is air-cooled with a cooling capacity less than 65,000 Btu/h): Rated indoor airflow in standard cubic feet per minute (SCFM) for each fan coil; water flow rate in gallons per minute (gpm) for water-cooled units only; rated external static pressure in inches of water; frequency or control set points for variable speed components (e.g., compressors, VFDs); required dip switch/control settings for step or variable components; a statement whether the model will operate at test conditions without manufacturer programming; any additional testing instructions, if applicable; and if a variety of motors/drive kits are offered for sale as options in the basic model to account for varying installation requirements, the model number and specifications of the motor (to include efficiency, horsepower, open/closed, and number of poles) and the drive kit, including settings, associated with that specific motor that were used to determine the certified rating. When certifying compliance with the January 1, 2018 or the January 1, 2023 energy conservation standards, rated indoor airflow in SCFM for each part-load point used in the IEER calculation and any special instructions required to obtain operation at each part-load point, such as frequency or control set points for variable speed components (e.g., compressors, VFDs), dip switch/control settings for step or variable components, or any additional applicable testing instructions, are also required.

    (ii) Commercial package heating equipment (except commercial package heating equipment that is air-cooled with a cooling capacity less than 65,000 Btu/h): The rated heating capacity in British thermal units per hour (Btu/h); rated indoor airflow in standard cubic feet per minute (SCFM) for each fan coil (in cooling mode); rated airflow in SCFM for each fan coil in heating mode if the unit is designed to operate with different airflow rates for cooling and heating mode; water flow rate in gallons per minute (gpm) for water cooled units only; rated external static pressure in inches of water; frequency or control set points for variable speed components (e.g., compressors, VFDs); required dip switch/control settings for step or variable components; a statement whether the model will operate at test conditions without manufacturer programming; any additional testing instructions, if applicable; and if a variety of motors/drive kits are offered for sale as options in the basic model to account for varying installation requirements, the model number and specifications of the motor (to include efficiency, horsepower, open/closed, and number of poles) and the drive kit, including settings, associated with that specific motor that were used to determine the certified rating. When certifying compliance with the January 1, 2018 or the January 1, 2023 energy conservation standards, rated indoor airflow in SCFM for each part-load point used in the IEER calculation and any special instructions required to obtain operation at each part-load point, such as frequency or control set points for variable speed components (e.g., compressors, VFDs), dip switch/control settings for step or variable components, or any additional applicable testing instructions, are also required.

    4. Amend § 429.134 by adding paragraph (c) to read as follows:
    § 429.134 Product-specific enforcement provisions.

    (c) Commercial unitary air conditioners and commercial unitary heat pumps—Verification of cooling capacity. The cooling capacity of each tested unit of the basic model will be measured pursuant to the test requirements of part 431 of this chapter for each unit tested. The results of the measurement(s) will be compared to the value of cooling capacity certified by the manufacturer. The certified cooling capacity will be considered valid only if the measurement(s) (either the measured cooling capacity for a single unit sample or the average of the measured cooling capacities for a multiple unit sample) is within five percent of the certified cooling capacity.

    (1) If the certified cooling capacity is found to be valid, the certified cooling capacity will be used as the basis for determining the equipment class.

    (2) If the certified cooling capacity is found to be invalid, the average of the measured cooling capacity will be used as the basis for determining the equipment class.

    PART 431—ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND INDUSTRIAL EQUIPMENT 5. The authority citation for part 431 continues to read as follows: Authority:

    42 U.S.C. 6291-6317.

    6. Amend § 431.92 by adding a definition of “integrated energy efficiency ratio” in alphabetical order to read as follows:
    § 431.92 Definitions concerning commercial air conditioners and heat pumps.

    Integrated energy efficiency ratio, or IEER, means a single number part-load efficiency based on weighting of EER at various load capacities, as measured in Appendix A to Subpart F of part 431, expressed in Btu/watt-hour.

    § 431.95 [Amended]
    6. Amend § 431.95 by adding “and Appendix A to subpart F of part 431” at the end of paragraphs (b)(5) and (c)(2). 5. Amend § 431.96 by revising paragraphs (b)(1) and (c) and Table 1 to read as follows:
    § 431.96 Uniform test method for the measurement of energy efficiency of commercial air conditioners and heat pumps.

    (b) * * *

    (1) Determine the energy efficiency of each type of covered equipment by conducting the test procedure(s) listed in Table 1 of this section along with any additional testing provisions set forth in paragraphs (c) through (g) of this section and appendix A to this subpart, that apply to the energy efficiency descriptor for that equipment, category, and cooling capacity. The omitted sections of the test procedures listed in Table 1 of this section must not be used.

    Table 1 to § 431.96—Test Procedures for Commercial Air Conditioners and Heat Pumps Equipment type Category Cooling capacity Energy efficiency descriptor Use tests, conditions, and procedures 1 in Additional test procedure provisions as indicated in the listed paragraphs of this section Small Commercial Packaged Air-Conditioning and Heating Equipment Air-Cooled, 3-Phase, AC and HP <65,000 Btu/h SEER and HSPF AHRI 210/240-2008 (omit section 6.5) Paragraphs (c) and (e). Air-Cooled AC and HP ≥65,000 Btu/h and <135,000 Btu/h EER, IEER, and COP Appendix A to this subpart None. Water-Cooled and Evaporatively-Cooled AC <65,000 Btu/h EER AHRI 210/240-2008 (omit section 6.5) Paragraphs (c) and (e). ≥65,000 Btu/h and <135,000 Btu/h EER AHRI 340/360-2007 (omit section 6.3) Paragraphs (c) and (e). Water-Source HP <135,000 Btu/h EER and COP ISO Standard 13256-1 (1998) Paragraph (e). Large Commercial Packaged Air-Conditioning and Heating Equipment Air-Cooled AC and HP ≥135,000 Btu/h and <240,000 Btu/h EER, IEER and COP Appendix A to this subpart None. Water-Cooled and Evaporatively-Cooled AC ≥135,000 Btu/h and <240,000 Btu/h EER AHRI 340/360-2007 (omit section 6.3) Paragraphs (c) and (e). Very Large Commercial Packaged Air-Conditioning and Heating Equipment Air-Cooled AC and HP ≥240,000 Btu/h and <760,000 Btu/h EER, IEER and COP Appendix A to this subpart None. Water-Cooled and Evaporatively-Cooled AC ≥240,000 Btu/h and <760,000 Btu/h EER AHRI 340/360-2007 (omit section 6.3) Paragraphs (c) and (e). Packaged Terminal Air Conditioners and Heat Pumps AC and HP <760,000 Btu/h EER and COP Paragraph (g) of this section Paragraphs (c), (e), and (g). Computer Room Air Conditioners AC <65,000 Btu/h SCOP ASHRAE 127-2007 (omit section 5.11) Paragraphs (c) and (e). ≥65,000 Btu/h and <760,000 Btu/h SCOP ASHRAE 127-2007 (omit section 5.11) Paragraphs (c) and (e). Variable Refrigerant Flow Multi-split Systems, Air-Cooled AC <65,000 Btu/h SEER AHRI 1230-2010 (omit sections 5.1.2 and 6.6) Paragraphs (c), (d), (e), and (f). ≥65,000 Btu/h and <760,000 Btu/h EER AHRI 1230-2010 (omit sections 5.1.2 and 6.6) Paragraphs (c), (d), (e), and (f). HP <65,000 Btu/h SEER and HSPF AHRI 1230-2010 (omit sections 5.1.2 and 6.6) Paragraphs (c), (d), (e), and (f). ≥65,000 Btu/h and <760,000 Btu/h EER and COP AHRI 1230-2010 (omit sections 5.1.2 and 6.6) Paragraphs (c), (d), (e), and (f). Variable Refrigerant Flow Multi-split Systems, Water-source HP <760,000 Btu/h EER and COP AHRI 1230-2010 (omit sections 5.1.2 and 6.6) Paragraphs (c), (d), (e), and (f). Single Package Vertical Air Conditioners and Single Package Vertical Heat Pumps AC and HP <760,000 Btu/h EER and COP AHRI 390-2003 (omit section 6.4) Paragraphs (c) and (e). 1 Incorporated by reference, see § 431.95.

    (c) Optional break-in period for tests conducted using AHRI 210/240-2008, AHRI 390-2003, AHRI 1230-2010, and ASHRAE 127-2007. Manufacturers may optionally specify a “break-in” period, not to exceed 20 hours, to operate the equipment under test prior to conducting the test method specified by AHRI 210/240-2008, AHRI 390-2003, AHRI 1230-2010, or ASHRAE 127-2007 (incorporated by reference, see § 431.95). A manufacturer who elects to use an optional compressor break-in period in its certification testing should record this information (including the duration) in the test data underlying the certified ratings that is required to be maintained under 10 CFR 429.71.

    7. Add Appendix A to subpart F of part 431 to read as follows: Appendix A to Subpart F of Part 431—Uniform Test Method for the Measurement of Energy Consumption of Air-Cooled Small, Large, and Very Large Commercial Packaged (Unitary) Air Conditioning and Heating Equipment Note:

    Prior to [DATE 360 DAYS AFTER PUBLICATION OF THE FINAL RULE IN THE Federal Register], representations with respect to the energy use or efficiency of commercial unitary air conditioners and heat pumps (CUACs and CUHPs), including compliance certifications, must be based on testing conducted in accordance with either Table 1 to § 431.96 as it now appears or Table 1 to § 431.96 as it appeared at 10 CFR part 431, subpart F, in the 10 CFR parts 200 to 499 edition revised as of January 1, 2015. After [DATE 360 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE], representations with respect to energy use or efficiency of commercial unitary air conditioners and heat pumps (CUACs and CUHPs), including compliance certifications, must be based on testing conducted in accordance with Table 1 to § 431.96.

    (1) Cooling mode test method. The test method for testing commercial unitary air conditioners and commercial unitary heat pumps in cooling mode must consist of application of the methods and conditions in ANSI/AHRI 340/360-2007 sections 3, 4, and 6 (omitting section 6.3) (incorporated by reference; see § 431.95), and in ANSI/ASHRAE 37-2009 (incorporated by reference; see § 431.95). In case of a conflict between ANSI/AHRI 340/360-2007 or ANSI/ASHRAE 37-2009 and the CFR, the CFR provisions control.

    (2) Heating mode test method. The test method for testing commercial unitary heat pumps in heating mode must consist of application of the methods and conditions in ANSI/AHRI 340/360-2007 sections 3, 4, and 6 (omitting section 6.3) (incorporated by reference; see § 431.95), and in ANSI/ASHRAE 37-2009 (incorporated by reference; see § 431.95). In case of a conflict between ANSI/AHRI 340/360-2007 or ANSI/ASHRAE 37-2009 and the CFR, the CFR provisions control.

    (3) Minimum External Static Pressure. Use the certified cooling capacity for the basic model to choose the minimum external static pressure found in table 5 of section 6 of ANSI/AHRI 340/360-2007 for testing.

    (4) Optional Break-in Period. Manufacturers may optionally specify a “break-in” period, not to exceed 20 hours, to operate the equipment under test prior to conducting the test method in appendix A. A manufacturer who elects to use an optional compressor break-in period in its certification testing should record this information (including the duration) as part of the information in the supplemental testing instructions under 10 CFR 429.43.

    (5) Additional Provisions for Equipment Set-up. The only additional specifications that may be used in setting up a unit for test are those set forth in the installation and operation manual shipped with the unit. Each unit should be set up for test in accordance with the manufacturer installation and operation manuals. Paragraphs (5)(a) through (b) of this section provide specifications for addressing key information typically found in the installation and operation manuals.

    (a) If a manufacturer specifies a range of superheat, sub-cooling, and/or refrigerant pressure in its installation and operation manual for a given basic model, any value(s) within that range may be used to determine refrigerant charge or mass of refrigerant, unless the manufacturer clearly specifies a rating value in its installation and operation manual, in which case the specified rating value shall be used.

    (b) The air flow rate used for testing must be that set forth in the installation and operation manuals being shipped to the commercial customer with the basic model and clearly identified as that used to generate the DOE performance ratings. If a certified air flow value for testing is not clearly identified, a value of 400 standard cubic feet per minute (scfm) per ton shall be used.

    (6) Indoor airflow testing and adjustment.

    (i) When testing full-capacity cooling operation at the required external static pressure condition, the full-load indoor airflow rate must be within +/−5 percent of the certified-rated airflow at full-capacity cooling operation. If the indoor airflow rate at the required minimum external pressure is outside the +/−5 percent tolerance, the unit and/or test setup must be adjusted such that both the airflow and ESP are within the required tolerances. This process may include, but is not limited to, adjusting any adjustable motor sheaves, adjusting variable drive settings, or adjusting the code tester fan.

    (ii) When testing other than full-capacity cooling operation using the full-load indoor airflow rate (e.g., full-load heating), the full-load indoor airflow rate must be within+/−5 percent of the certified-rated full-load cooling airflow (without regard to the resulting external static pressure), unless the unit is designed to operate at a different airflow for cooling and heating mode. If necessary, a test facility setup may be made in order to maintain air flow within the required tolerance; however, no adjustments to the unit under test may be made.

    (7) Condenser head pressure controls. Condenser head pressure controls of commercial unitary air conditioners and commercial unitary heat pumps, if typically shipped with units of the basic model by the manufacturer or available as an option to the basic model, must be active during testing.

    (8) Standard CFM. In the referenced sections of ANSI/AHRI 340/360-2007 for commercial unitary air conditioners and commercial unitary heat pumps, all instances of CFM refer to standard CFM (SCFM). Likewise, all references to airflow or air quantity refer to standard airflow and standard air quantity.

    (9) Capacity rating at part-load. When testing commercial unitary air conditioners and commercial unitary heat pumps to determine EER for the part-load rating points (i.e. 75 percent load, 50 percent load, and 25 percent load), if the measured capacity expressed as a percent of full load capacity for a given part-load test is within three percent above or below the target part-load percentage, the EER calculated for the test may be used without any interpolation to determine IEER.

    [FR Doc. 2015-19232 Filed 8-5-15; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-102648-15] RIN 1545-BM66 Suspension of Benefits Under the Multiemployer Pension Reform Act of 2014; Correction AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Correction to a notice of proposed rulemaking, notice of proposed rulemaking by cross-reference to temporary regulations, and notice of public hearing.

    SUMMARY:

    This document contains corrections to a notice of proposed rulemaking, notice of proposed rulemaking by cross-reference to temporary regulations, and notice of public hearing (REG-102648-15) that were published in the Federal Register on Friday, June 19, 2015 (80 FR 35262). The proposed regulations relate to multiemployer pension plans that are projected to have insufficient funds, at some point in the future, to pay the full benefits to which individuals will be entitled under the plans (referred to as plans in “critical and declining status”).

    DATES:

    Written or electronic comments, and outlines of topics to be discussed at the public hearing scheduled for September 10, 2015 for the notice of proposed rulemaking at 80 FR 35262, June 19, 2015, are still being accepted and must be received by August 18, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Department of the Treasury MPRA guidance information line (202) 622-1559 (not a toll-free number).

    SUPPLEMENTARY INFORMATION: Background

    The notice of proposed rulemaking, notice of proposed rulemaking by cross-reference to temporary regulations, and notice of public hearing (REG-102648-15) that are the subject of this correction, are under section 432(e)(9) of the Internal Revenue Code.

    Need for Correction

    As published, the notice of proposed rulemaking, notice of proposed rulemaking by cross-reference to temporary regulations, and notice of public hearing (REG-102648-15) contain errors that may prove to be misleading and are in need of clarification.

    Correction of Publication

    Accordingly, the notice of proposed rulemaking, notice of proposed rulemaking by cross-reference to temporary regulations, and notice of public hearing (REG-102648-15), that are subject to FR Doc. 2015-14948, are corrected as follows:

    1. On page 35264, in the preamble, second column, under paragraph heading “Limitations on Suspensions,” thirteenth line, the language “829 (1974)), as amended (ERISA) on the” is corrected to read “829 (1974)), as amended (ERISA), on the”.

    2. On page 35266, in the preamble, second column, second full paragraph, eleventh line, the language “in the documents under which the plain” is corrected to read “in the documents under which the plan”.

    3. On page 35266, in the preamble, third column, fifth line of the first full paragraph, the language “beneficiaries, or alternate payee that” is corrected to read “beneficiary, or alternate payee that”.

    4. On page 35266, in the preamble, third column, fifth line from the bottom of second full paragraph, the language “4022A(c)(2)(A) of ERISA) by the” is corrected to read “4022A(c)(2)(A) of ERISA) divided by the”.

    5. On page 35268, in the preamble, second column, first full paragraph, twenty-eighth line, the language “contributions, withdrawal liability, or” is corrected to read “contributions, withdrawal liability payments, or”.

    6. On page 35270, in the preamble, second column, fourth full paragraph, fifth line, the language “(and, if applicable, a proposed partition” is corrected to read “(and, if applicable, a proposed partition of the”.

    7. On page 35271, in the preamble, first column, under paragraph heading “Contact Information,” on the third line, the language “Department of the Treasury at (202)” is corrected to read “Department of the Treasury MPRA guidance information line at (202)”.

    § 1.432(e)(9)-1 [Corrected]

    8. On page 35274, first column, paragraph (d)(3)(viii), Example 1., paragraph (ii), the sixth line, the language “equal to the lesser of reduction that would” is corrected to read “equal to the lesser of the amount of reduction that would”.

    9. On page 35274, second column, paragraph (d)(3)(viii), Example 3., paragraph (iii), the thirteenth line, the language “(which is equal to the lesser of reduction that” is corrected to read “(which is equal to the lesser of the amount of reduction that”.

    10. On page 35274, second column, paragraph (d)(3)(viii), Example 3., paragraph (iii), eighteenth line, the language “1.1 × 639.50)).” is corrected to read “1.1 × $639.50))”.

    11. On page 35274, third column, paragraph (d)(3)(viii), Example 4., paragraph (ii), third line from the bottom of the paragraph, the language “be less than minimum benefit payable” is corrected to read “be less than the minimum benefit payable”.

    12. On page 35274, third column, paragraph (d)(4)(i), second line, the language “General rule [The text of the proposed” is corrected to read “General rule. [The text of the proposed”.

    13. On page 35276, second column, paragraph (d)(5)(iv)(C)(1), second line, the language “of end of the most recent calendar” is corrected to read “of the end of the most recent calendar”.

    14. On page 35280, second column, paragraph (h)(3)(i)(J), fifth line, the language “(and, if applicable, a proposed partition” is corrected to read “(and, if applicable, a proposed partition of the”.

    Martin V. Franks, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration).
    [FR Doc. 2015-19365 Filed 8-5-15; 8:45 am] BILLING CODE 4830-01-P
    DEPARTMENT OF THE TREASURY Alcohol and Tobacco Tax and Trade Bureau 27 CFR Part 9 [Docket No. TTB-2015-0011; Notice No. 155] RIN 1513-AC22 Proposed Establishment of the Tip of the Mitt Viticultural Area AGENCY:

    Alcohol and Tobacco Tax and Trade Bureau, Treasury.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Alcohol and Tobacco Tax and Trade Bureau (TTB) proposes to establish the approximately 2,760-square mile “Tip of the Mitt” viticultural area in all or portions of Charlevoix, Emmet, Cheboygan, Presque Isle, Alpena, and Antrim Counties in Michigan. The proposed viticultural area is not located within, nor does it contain, any other established viticultural area. TTB designates viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase. TTB invites comments on this proposed addition to its regulations.

    DATES:

    Comments must be received by October 5, 2015.

    ADDRESSES:

    Please send your comments on this proposed rule to one of the following addresses (please note that TTB has a new address for comments submitted by U.S. mail):

    Internet: http://www.regulations.gov (via the online comment form for this proposed rule as posted within Docket No. TTB-2015-0011 at “Regulations.gov,” the Federal e-rulemaking portal);

    U.S. Mail: Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Box 12, Washington, DC 20005; or

    Hand delivery/courier in lieu of mail: Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Suite 400, Washington, DC 20005.

    See the Public Participation section of this proposed rule for specific instructions and requirements for submitting comments, and for information on how to request a public hearing or view or request copies of the petition and supporting materials.

    FOR FURTHER INFORMATION CONTACT:

    Karen A. Thornton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Box 12, Washington, DC 20005; phone 202-453-1039, ext. 175.

    SUPPLEMENTARY INFORMATION: Background on Viticultural Areas TTB Authority

    Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated various authorities through Treasury Department Order 120-01 (Revised), dated December 10, 2013, to the TTB Administrator to perform the functions and duties in the administration and enforcement of this law.

    Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to establish definitive viticultural areas and regulate the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth the standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.

    Definition

    Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features, as described in part 9 of the regulations, and a name and a delineated boundary, as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.

    Requirements

    Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and provides that any interested party may petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions for the establishment or modification of AVAs. Petitions to establish an AVA must include the following:

    • Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;

    • An explanation of the basis for defining the boundary of the proposed AVA;

    • A narrative description of the features of the proposed AVA affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA boundary;

    • The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon; and

    • A detailed narrative description of the proposed AVA boundary based on USGS map markings.

    Tip of the Mitt Petition

    TTB received a petition from the Straits Area Grape Growers Association, on behalf of vineyard and winery owners in the northern portion of the Lower Peninsula of Michigan, proposing the establishment of the “Tip of the Mitt” AVA. The proposed AVA contains approximately 2,760-square miles and has 41 commercial vineyards, covering approximately 94 acres, distributed across the proposed AVA. The proposed AVA also has eight bonded wineries. According to the petition, an additional 48 acres of vineyards and an additional 4 bonded wineries are planned in the near future. The distinguishing features of the proposed Tip of the Mitt AVA include climate and soils. Unless otherwise noted, all information and data contained in this proposed rule that pertains to the proposed AVA comes from the petition for the proposed Tip of the Mitt AVA and its supporting exhibits.

    Name Evidence

    The proposed Tip of the Mitt AVA derives its name from its location at the northernmost end of Michigan's Lower Peninsula. The Lower Peninsula of Michigan is shaped like a mitten, and the proposed AVA is located at the northern tip of the “mitten.” The petition noted that “Tip of the Mitt” has long been used to describe the region in which the proposed AVA is located, and the petitioner included copies of three postcards dated from the 1960s which were submitted to demonstrate the historical use of the phrase in connection with that region. The first postcard contains a photo of the Tip of the Mitt Motel in Mackinaw City, Michigan, which is located within the proposed AVA. The second postcard depicts a map of the northern portion of the Lower Peninsula and is labeled “The Tip of the Mitt.” The third postcard contains a photo of the Tip of the Mitt Restaurant in Topinabee, Michigan, a city located within the proposed AVA.

    The petition included additional evidence that the region of the proposed AVA is currently known as “Tip of the Mitt.” The petitioner submitted as one piece of evidence an online guide of hiking trails 1 that divides Michigan into nine regions, including the “Tip of the Mitt” region in the northern portion of the Lower Peninsula. Several annual events held throughout the proposed AVA use the name “Tip of the Mitt,” including the Tip of the Mitt Paddle Fest, the Tip of the Mitt Tractor Show, the Tip of the Mitt Classic road bike race, and a sailing race known as Michigan Challenge: Tip of the Mitt. Finally, the petition included a list of 14 businesses and non-profit organizations within the proposed AVA, including Tip of the Mitt Windshield Repair, Tip of the Mitt IT, Tip of the Mitt Sail & Power Squadron, Tip of the Mitt Antique Tractor Association, Tip of the Mitt Watershed Council, and Tip of the Mitt Flea Market.

    1www.trails.com.

    Boundary Evidence

    The proposed Tip of the Mitt AVA is located at the northernmost end of Michigan's Lower Peninsula and includes all or portions of Charlevoix, Emmet, Cheboygan, Presque Isle, Alpena, and Antrim Counties. The western portion of the boundary follows the shorelines of Grand Traverse Bay, Little Traverse Bay, and Lake Michigan. The northern portion of the boundary follows the shorelines of the Straits of Mackinac and Lake Huron. The eastern portion of the boundary also follows the Lake Huron shoreline. The southern boundary follows county lines and a series of lines drawn between points on the USGS maps to separate the lake-influenced climate of the proposed Tip of the Mitt AVA from the cooler regions to the south.

    Distinguishing Features

    The distinguishing features of the proposed Tip of the Mitt AVA include its climate and soils. Because the proposed AVA is bordered by large bodies of water to the west, north, and east, the climate and soil data from within the proposed AVA is only contrasted with data from the region directly to the south of the proposed AVA.

    Climate

    The climate of the proposed Tip of the Mitt AVA is generally warmer than that of the region to the south. According to the petition, the primary reason for the warmer temperatures within the proposed AVA is the westerly prevailing winds that distribute warmer air from the surface of Lake Michigan across the region. As a result of these warm winds, the proposed AVA has a suitable climate for growing cold-hardy hybrid grape varieties such as Frontenac, La Crescent, and Marquette.

    The following table compares the average annual high and low temperatures, as well as the average annual extreme low temperature and the average number of days per year with high temperatures below 32 degrees Fahrenheit (F) and below 0 degrees F, for 6 weather stations within the proposed Tip of the Mitt AVA and 5 weather stations south of the proposed AVA.2 A map showing the locations of the weather stations is included in Docket No. TTB-2015-0011 as Exhibit 1 to Appendix II of the petition.

    2 Source: Midwest Climate Center database, Michigan State Climatology Office. Data covers the period from 1981 to 2010.

    Table 1—Average Annual Temperatures Weather station Average
  • annual high
  • Average
  • annual low
  • Average
  • annual
  • extreme low
  • Annual days with highs below 32
  • degrees F
  • Annual days with highs below 0
  • degrees F
  • Within Proposed AVA Alpena Waste Water Treatment Plant 52.7 36.5 −8.3 66 10 Onaway State Park 56.2 34.6 −20.0 59 17 Cross Village 53.0 35.6 −14.2 65 13 Petoskey 53.5 32.2 −13.3 71 24 Boyne Falls 56.8 35.1 −21.3 61 15 East Jordan 56.9 34.5 −16.7 55 13 South of Proposed AVA Alpena WSO Airport 54.0 33.4 −17.8 77 22 Atlanta 2SW 53.4 32.5 −19.6 77 17 Gaylord 53.6 33.5 −19.7 76 26 Grayling 53.7 31.1 −22.2 69 22 Lake City 54.0 32.5 −18.1 68 17

    The data shows that although temperatures within the proposed AVA are cold, the region to the south has average annual low temperatures that are generally lower than those within the proposed AVA. The region to the south also generally has more days per year with high temperatures below 32 degrees F and also below 0 degrees F. The petition states that the number of very cold days is important to viticulture because only certain varieties of grapes can withstand very low temperatures. The petition states that, according to data produced by Iowa State University, there are 17 less-hardy varieties of grapes that can tolerate temperatures between −15 and −20 degrees F, including Marechel Foch and Leon Millot. Because the average annual extreme low temperatures for 4 of the 6 locations within the proposed AVA are warmer than −20 degrees, and half of the locations within the proposed AVA have extreme low temperatures above −15 degrees, these 17 varieties of grapes could reasonably be expected to survive and produce consistent crops within the proposed AVA. However, because none of the locations south of the proposed AVA have annual extreme low temperatures above −15 degrees, it is less likely that these 17 varieties would thrive and produce crops reliably south of the proposed AVA.

    The petition included information on growing season length and growing degree days (GDDs) 3 gathered from locations both within and outside of the proposed AVA.4 The data in the following tables shows that the growing season for most locations within the proposed AVA is longer than the growing season for most locations south of the proposed AVA, and that most locations within the proposed AVA have higher GDD accumulations than locations to the south.

    3 In the Winkler climate classification system, annual heat accumulation during the growing season, measured in annual growing degree days (GDDs), defines climatic regions. One GDD accumulates for each degree Fahrenheit that a day's mean temperature is above 50 degrees, the minimum temperature required for grapevine growth. See Albert J. Winkler, General Viticulture (Berkeley: University of California Press, 1974), pages 61-64.

    4 Source: Midwest Climate Center database, Michigan State Climatology Office. Data covers the period from 1981 to 2010.

    Table 2—Growing Season Data Weather station Average last spring frost date Average first fall frost date Average length of
  • growing season (days)
  • Within Proposed AVA Alpena Waste Water Treatment Plant May 3 October 11 161 Onaway State Park May 15 September 29 137 Cross Village May 27 October 9 135 Petoskey May 9 October 13 157 Boyne Falls May 31 September 18 110 East Jordan May 30 September 24 117 South of Proposed AVA Alpena WSO Airport May 26 September 24 121 Atlanta 2SW May 20 September 24 127 Gaylord May 28 September 21 116 Grayling June 2 September 13 103 Lake City May 28 September 22 117
    Table 3—Growing Degree Day Data Weather station March
  • GDDs
  • April
  • GDDs
  • May
  • GDDs
  • June
  • GDDs
  • July
  • GDDs
  • August GDDs September GDDs October GDDs Total
  • growing season GDDs
  • Within Proposed AVA Alpena Waste Water Treatment Plant 6 31.3 151.6 389.4 579.4 541.1 306.7 66 2,071.5 Onaway State Park 11.3 43.1 198.4 413.5 578.1 506.3 259.5 65.2 2,075.4 Cross Village 6 39.5 158.5 356 521.8 502.5 299.4 75.4 1,959.1 Petoskey 6.5 33.6 144.1 359.0 541.4 519.4 298.8 90.5 1,993.8 Boyne Falls 13.9 66 229.6 466.2 618.6 571.8 342.3 99.3 2,407.7 East Jordan 12.9 55.3 207.2 432.4 577.6 531.6 315.7 88.4 2,221.1 South of Proposed AVA Alpena WSO Airport 8 36.7 153.3 380.6 553.1 492.3 261.2 60.8 1,946.0 Atlanta 2SW 11.2 48.3 169.5 379.9 537.8 472.5 269.5 60.6 1,949.3 Gaylord 12.3 48.7 190.7 413.2 560.0 499.0 271.8 66.9 2,062.6 Grayling 8.6 41.3 170.2 389.4 531.7 467.6 237.1 54.1 1,900.0 Lake City 9.9 40 182.2 388.7 534.2 467.5 230.7 56.5 1,909.7

    GDDs are important to viticulture because they represent how often the daily temperatures rise above 50 degrees F, which is the minimum temperature required for active vine growth and fruit development. Because the proposed AVA has a growing season that is generally longer, and GDD accumulations that are generally higher, than the region to the south, vineyard owners are able to grow less-hardy grapes as well as mid-to-late season ripening varieties, such as Frontenac, which would not ripen as consistently if they were grown south of the proposed AVA. The higher GDD accumulations within the proposed Tip of the Mitt AVA compensate for the relatively short growing season because the growing season temperatures rise above 50 degrees frequently enough during the growing season to allow the grapes to mature. For example, Boyne Falls has the shortest growing season of any location within the proposed AVA, and the growing season is shorter than all but one of the locations south of the proposed AVA. However, grapes are still able to ripen reliably in Boyne Falls because the average growing season GDD accumulation is 2,407.7. By contrast, even though four of the five locations south of the proposed AVA have longer growing seasons than Boyne Falls, all of the locations south of the proposed AVA still have significantly lower GDD accumulations.

    Soils

    The predominant soils within the proposed Tip of the Mitt AVA contain coarse-textured glacial till and Lacustrine sand and gravel. Soils that contain either glacial outwash sand and gravel or ice-contact sand and gravel are only present in small amounts. The soils of the proposed AVA have high levels of organic matter, which prevents nutrients from leaching rapidly. As a result, vineyard owners do not have to apply supplemental nutrients as frequently or heavily as in areas with soils that have lower levels of organic material. Soils with high levels of organic material also have a high water-holding capacity, so vineyard owners within the proposed AVA often take steps to limit accumulations of soil moisture, such as planting cover crops between the rows of vines to help absorb excess water. Finally, the soils of the proposed AVA do not heat up as quickly in the early spring as soils that contain higher levels of sand and gravel. The cool soil temperatures naturally prevent bud-break, often delaying new growth from forming until after the threat of damaging frost is over. According to the petition, delaying bud-break until after the threat of frost has passed is particularly important when growing cultivars that typically have an early bud-break such as Leon Millot or Marquette, which are both commonly grown in the proposed AVA.

    South of the proposed AVA, the soils are primarily glacial outwash sand and gravel and ice-contact sand and gravel, which are low in organic matter. Lesser quantities of coarse-textured glacial till and end moraines of fine- and coarse-textured till also occur. Because the soils south of the proposed AVA contain low amounts of organic matter, they require heavier and more frequent additions of nutrients. The soils also have a lower water-holding capacity, increasing the need for supplemental irrigation. Vineyard owners also attempt to maintain plant-free conditions between rows, in order to maximize the amount of water available for the vines. Finally, the lower levels of organic matter, combined with higher levels of sand and gravel, allow soils south of the proposed AVA to warm up more rapidly in the spring, which encourages bud-break before the last spring frost has occurred.

    Summary of Distinguishing Features

    In summary, the evidence provided in the petition indicates that the viticulturally significant geographic features of the proposed Tip of the Mitt AVA distinguish it from the surrounding regions in each direction. The proposed AVA is surrounded by large bodies of water to the west, north, and east. The region to the south of the proposed AVA is characterized by cooler temperatures, shorter growing seasons, lower GDD accumulations, and soils with low amounts of organic material and high amounts of sand and gravel.

    TTB Determination

    TTB concludes that the petition to establish the approximately 2,760-square mile Tip of the Mitt AVA merits consideration and public comment, as invited in this proposed rule.

    Boundary Description

    See the narrative description of the boundary of the petitioned-for AVA in the proposed regulatory text published at the end of this proposed rule.

    Maps

    The petitioner provided the required maps, and they are listed below in the proposed regulatory text.

    Impact on Current Wine Labels

    Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in § 4.25(e)(3) of the TTB regulations (27 CFR 4.25(e)(3)). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See § 4.39(i)(2) of the TTB regulations (27 CFR § 4.39(i)(2)) for details.

    If TTB establishes this proposed AVA, its name, “Tip of the Mitt,” will be recognized as a name of viticultural significance under 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the proposed regulation clarifies this point. Consequently, if this proposed rule is adopted as a final rule, wine bottlers using the name “Tip of the Mitt” in a brand name, including a trademark, or in another label reference as to the origin of the wine, would have to ensure that the product is eligible to use the AVA name as an appellation of origin.

    Public Participation Comments Invited

    TTB invites comments from interested members of the public on whether it should establish the proposed AVA. TTB is also interested in receiving comments on the sufficiency and accuracy of the name, boundary, soils, climate, and other required information submitted in support of the petition. Please provide any available specific information in support of your comments.

    Because of the potential impact of the establishment of the proposed Tip of the Mitt AVA on wine labels that include the term “Tip of the Mitt,” as discussed above under Impact on Current Wine Labels, TTB is particularly interested in comments regarding whether there will be a conflict between the proposed area name and currently used brand names. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any anticipated negative economic impact that approval of the proposed AVA will have on an existing viticultural enterprise. TTB is also interested in receiving suggestions for ways to avoid conflicts, for example, by adopting a modified or different name for the AVA.

    Submitting Comments

    You may submit comments on this proposed rule by using one of the following three methods (please note that TTB has a new address for comments submitted by U.S. Mail):

    Federal e-Rulemaking Portal: You may send comments via the online comment form posted with this proposed rule within Docket No. TTB-2015-0011 on “Regulations.gov,” the Federal e-rulemaking portal, at http://www.regulations.gov. A direct link to that docket is available under Notice No. 155 on the TTB Web site at http://www.ttb.gov/wine/wine-rulemaking.shtml. Supplemental files may be attached to comments submitted via Regulations.gov. For complete instructions on how to use Regulations.gov, visit the site and click on the “Help” tab.

    U.S. Mail: You may send comments via postal mail to the Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Box 12, Washington, DC 20005.

    Hand Delivery/Courier: You may hand-carry your comments or have them hand-carried to the Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Suite 400, Washington, DC 20005.

    Please submit your comments by the closing date shown above in this proposed rule. Your comments must reference Notice No. 155 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. TTB does not acknowledge receipt of comments, and TTB considers all comments as originals.

    In your comment, please clearly indicate if you are commenting on your own behalf or on behalf of an association, business, or other entity. If you are commenting on behalf of an entity, your comment must include the entity's name, as well as your name and position title. If you comment via Regulations.gov, please enter the entity's name in the “Organization” blank of the online comment form. If you comment via postal mail or hand delivery/courier, please submit your entity's comment on letterhead.

    You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.

    Confidentiality

    All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure.

    Public Disclosure

    TTB will post, and you may view, copies of this proposed rule, selected supporting materials, and any online or mailed comments received about this proposal within Docket No. TTB-2015-0011 on the Federal e-rulemaking portal, Regulations.gov, at http://www.regulations.gov. A direct link to that docket is available on the TTB Web site at http://www.ttb.gov/wine/wine-rulemaking.shtml under Notice No. 155. You may also reach the relevant docket through the Regulations.gov search page at http://www.regulations.gov. For information on how to use Regulations.gov, click on the site's “Help” tab.

    All posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including email addresses. TTB may omit voluminous attachments or material that the Bureau considers unsuitable for posting.

    You may also view copies of this proposed rule, all related petitions, maps and other supporting materials, and any electronic or mailed comments that TTB receives about this proposal by appointment at the TTB Information Resource Center, 1310 G Street NW., Washington, DC 20005. You may also obtain copies at 20 cents per 8.5- × 11-inch page. Please note that TTB is unable to provide copies of USGS maps or any similarly-sized documents that may be included as part of the AVA petition. Contact TTB's information specialist at the above address or by telephone at 202-453-2270 to schedule an appointment or to request copies of comments or other materials.

    Regulatory Flexibility Act

    TTB certifies that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of an AVA name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

    Executive Order 12866

    It has been determined that this proposed rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993. Therefore, no regulatory assessment is required.

    Drafting Information

    Karen A. Thornton of the Regulations and Rulings Division drafted this proposed rule.

    List of Subjects in 27 CFR Part 9

    Wine.

    Proposed Regulatory Amendment

    For the reasons discussed in the preamble, TTB proposes to amend title 27, chapter I, part 9, Code of Federal Regulations, as follows:

    PART 9—AMERICAN VITICULTURAL AREAS 1. The authority citation for part 9 continues to read as follows: Authority:

    27 U.S.C. 205.

    Subpart C—Approved American Viticultural Areas 2. Subpart C is amended by adding § 9.____to read as follows:
    § 9.__ Tip of the Mitt.

    (a) Name. The name of the viticultural area described in this section is “Tip of the Mitt”. For purposes of part 4 of this chapter, “Tip of the Mitt” is a term of viticultural significance.

    (b) Approved maps. The 2 United States Geological Survey (USGS) 1:250,000 scale topographic maps used to determine the boundary of the Tip of the Mitt viticultural area are titled:

    (1) Cheboygan, Michigan, 1955; revised 1981; and

    (2) Alpena, Mich., US-Ontario, Can.; 1954.

    (c) Boundary. The Tip of the Mitt viticultural area is located in all or portions of Charlevoix, Emmet, Cheboygan, Presque Isle, Alpena, and Antrim Counties in Michigan. The boundary of the Tip of the Mitt viticultural area is as described below:

    (1) The beginning point is on the Cheboygan map, at the point where the Mackinac Bridge intersects the southern shoreline of the Straits of Mackinac. From the beginning point, proceed east-southeasterly along the shoreline of the South Channel of the Straits of Mackinac and Lake Huron, crossing onto the Alpena map and continuing to follow the Lake Huron shoreline and then the Thunder Bay shoreline to the point where the Thunder Bay shoreline intersects the common T31N/T30N township line south of the city of Alpena and north of Bare Point; then

    (2) Proceed northwesterly in a straight line to the intersection of an unnamed medium-duty road known locally as Long Rapids Road and an unnamed light-duty road known locally as Cathro Road; then

    (3) Proceed west in a straight line to the line's intersection with State Highway 65 and an unnamed light-duty road known locally as Hibner Road; then

    (4) Proceed northwesterly in a straight line to the intersection of the Presque Isle, Alpena, and Montmorency county lines; then

    (5) Proceed west along the southern boundary of Presque Isle County, crossing onto the Cheboygan map, to the point where the Presque Isle county line becomes the southern boundary of Cheboygan County, and continuing along the Cheboygan county line to the intersection of the Cheboygan county line with the eastern boundary of Charlevoix County; then

    (6) Proceed south then east along the Charlevoix county line to the intersection of the Charlevoix county line with the eastern boundary of Antrim County; then

    (7) Proceed south along the Antrim county line to the point where the county line turns due east; then

    (8) Proceed west in a straight line to the eastern shoreline of Grand Traverse Bay; then

    (9) Proceed north-northeasterly along the shorelines of Grand Traverse Bay, Lake Michigan, Little Traverse Bay, Sturgeon Bay, Trails End Bay, and the Straits of Mackinac, returning to the beginning point.

    Signed: July 28, 2015. John J. Manfreda, Administrator.
    [FR Doc. 2015-19277 Filed 8-5-15; 8:45 am] BILLING CODE 4810-31-P
    DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 4 RIN 2900-AO19 Schedule for Rating Disabilities: The Hematologic and Lymphatic Systems AGENCY:

    Department of Veterans Affairs.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Department of Veterans Affairs (VA) proposes to amend the portion of the VA Schedule for Rating Disabilities (Rating Schedule) that addresses the hematologic and lymphatic systems. The intended effect of this change is to incorporate medical advances that have occurred since the last review, update medical terminology, add medical conditions not currently in the Rating Schedule, and refine criteria for further clarity and ease of rater application.

    DATES:

    Comments must be received by VA on or before October 5, 2015.

    ADDRESSES:

    Written comments may be submitted through www.Regulations.gov; by mail or hand-delivery to the Director, Regulation Policy and Management (02REG), Department of Veterans Affairs, 810 Vermont Ave. NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to RIN 2900-AO19—Schedule for Rating Disabilities: The Hematologic and Lymphatic Systems. Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1068, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment. (This is not a toll-free number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at www.Regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Nick Olmos-Lau, M.D., Medical Officer (211C), Compensation Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-9695. (This is not a toll-free number.)

    SUPPLEMENTARY INFORMATION:

    As part of our ongoing revision of the VA Schedule for Rating Disabilities (Rating Schedule), we are proposing changes to 38 CFR 4.117, Schedule of ratings—hemic and lymphatic systems, and appendices A, B, and C of part 4 pertaining to this section. This section was last updated in 1995. By these revisions, we aim to update medical terminology; add medical conditions not currently in the Rating Schedule; and revise the rating criteria to reflect medical advances and to clarify them for ease of application.

    Proposed Title Change: The Hematologic and Lymphatic Systems

    “Hemic” is an adjective previously used to describe diseases of or related to the blood. The current medical term for diseases of the blood or blood-forming organs is “hematologic.” In addition, the 2013 National Library of Medicine-Medical Subject Headings (MESH) descriptor advisory discourages the use of the term “hemic” as too general, and recommends instead the use of the term “hematologic” as more specific (http://www.nlm.nih.gov/cgi/mesh/2013/MB_cgi?mode=&index=6154&field=all&HM=&II=&PA=&form=&input=).

    VA therefore proposes to edit the header of § 4.117 to “The Hematologic and Lymphatic Systems” and the title of § 4.117 to “Schedule of ratings—hematologic and lymphatic systems.”

    Modification and Reorganization of Current Diagnostic Code (DC) 7700 (Anemia, Hypochromic-Microcytic and Megaloblastic, Such as Iron-Deficiency and Pernicious Anemia)

    Anemia is predominantly hereditary or secondary, a symptom of another condition. Secondary anemia is corrected by treatment of the underlying condition. Examples of conditions that cause secondary anemia include osteomyelitis (DC 5000) and hypothyroidism (DC 7903). Anemia is most appropriately evaluated as part of the underlying service-connected disability causing the anemia. VA proposes to address in proposed DCs 7720, 7721, 7722, and 7723 anemias that are neither hereditary nor addressed under DCs for the causative conditions.

    The title of current DC 7700 is “Anemia, hypochromic-microcytic and megaloblastic, such as iron-deficiency and pernicious anemia.” This title groups anemias based on red blood cell (RBC) morphology. VA proposes separate DCs and criteria for the major types of anemia. Separation would assist raters in distinguishing amongst and clarifying severity of anemias. Accordingly, VA proposes the removal of DC 7700 from the Rating Schedule, and adding DC 7720 Iron deficiency anemia, 7721 Folic acid deficiency, 7722 Pernicious anemia and Vitamin B12 deficiency anemia, and 7723 Acquired hemolytic anemia.

    Anemia is currently rated at levels of 100, 70, 30, 10, and 0-percent, depending on the hemoglobin level and the associated signs and symptoms. It is evaluated at 100-percent for hemoglobin of 5gm/100ml or less, with findings such as high-output congestive heart failure or dyspnea at rest. It is evaluated at 70-percent for hemoglobin of 7gm/100ml or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute) or syncope (three episodes in the last six months). It is evaluated at 30-percent for hemoglobin of 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. It is evaluated at 10-percent for hemoglobin of 10gm/100ml or less, with findings such as weakness, easy fatigability, or headaches. It is evaluated at 0-percent for hemoglobin of 10gm/100ml or less and asymptomatic.

    While there is a high correlation between hemoglobin levels and signs or symptoms of anemia in acute anemia, the correlation is less accurate in chronic anemia. As the duration of the anemia lengthens, the individual becomes more tolerant of lower hemoglobin levels and symptom manifestation decreases. The functional impact of chronic anemia is more accurately measured by mode and frequency of treatment. VA proposes rating criteria based on the specific mode(s) and frequency of treatment.

    VA notes that the existing 100 and 70 percent categories for rating anemia are more descriptive of acute rather than chronic anemia. Acute anemia is usually related to gastrointestinal or uterine bleeding or traumatic injuries with acute hemorrhage. The descriptors in the 100 and 70 percent categories reflect a clinical picture of rapid and extensive blood loss, and their symptoms include high output cardiac failure with hypoxemia due to inability to sustain proper tissue oxygenation, caused by low hemoglobin levels which can lead to shock or collapse. The laboratory values and symptoms described in the 100 and 70 percent categories of the current anemia DC reflect intolerable and life threatening symptoms that require emergency hospitalization and transfusion. See G. Limbruno, “Recommendations for transfusion of red blood cells,” 7 Blood Transfusion 49 (2009).

    Chronic anemia on the other hand, develops at a more gradual pace, and is usually related to serious medical conditions such as malignancies (cancer) on chemotherapy, infection (osteomyelitis), thyroid disease, hemoglobin disorders (such as sickle-cell disease or thalassemia), renal failure or chronic lower gastrointestinal bleeding. In such cases a slower decline in hemoglobin values allows gradual adjustment. However, even when an individual reaches such low levels as contemplated in the 100 and 70 percent evaluation, such a case reflects acute critical health emergencies that are unsustainable rather than having an ongoing chronic long term disability impairment as with chronic anemia. In those cases where chronic anemia results in urgent hospitalization, VA finds that compensation is more appropriately determined by evaluating the underlying primary medical problem that gave rise to the service-connected chronic anemia. As these more severe cases represent less than 2 percent of the total number of disability awards for anemia in the past years, VA does not anticipate a significant impact on future evaluations based on anemia.

    Proposed DC 7720 (Iron Deficiency Anemia)

    Iron deficiency anemia is defined as a decrease in total body iron content. Total body iron content is regulated through the balance of iron absorption and loss. Iron deficiency anemia is most commonly due to blood loss, post- hemorrhagic anemia. Iron deficiency anemia due to blood loss would be evaluated under criteria for the causative condition, e.g., duodenal ulcer (DC 7305) or hemorrhoids (DC 7336), rather than under DC 7720. VA proposes to clarify the rating of anemia due to blood loss by adding the following note: “Do not evaluate iron deficiency anemia due to blood loss under this diagnostic code. Evaluate iron deficiency anemia due to blood loss under the criteria for the condition causing the blood loss.”

    Iron deficiency anemia can be readily treated by diet or dietary supplements. It is ordinarily short term with mild symptoms and responds to treatment. However, fatigue due to chronic, severe iron deficiency anemia can decrease the ability to perform physical labor. VA proposes rating levels of 30, 10, and 0-percent for iron deficiency anemia not due to blood loss. VA proposes a 30-percent evaluation for iron deficiency anemia requiring intravenous (IV) iron infusions on average 4 or more times per 12-month period; a 10-percent evaluation if requiring continuous treatment with high-dose oral supplementation; and a 0-percent evaluation if asymptomatic or requiring treatment only by dietary modification.

    Proposed DC 7721 (Folic Acid Deficiency)

    The prevalence of folic acid deficiency has decreased in the United States due to dietary fortification. This form of anemia is amenable to dietary modification and oral supplementation. VA proposes a 10-percent evaluation for folic acid deficiency requiring continuous treatment with high-dose oral supplementation. VA proposes a 0-percent evaluation when asymptomatic or requiring treatment only by dietary modification.

    Proposed DC 7722 (Pernicious Anemia and Vitamin B12 Deficiency Anemia)

    Pernicious anemia is the most common form of severe Vitamin B12 deficiency. S. Stabler, “Vitamin B12 deficiency,” 368(2) New Eng. J. Med. 149 (2013). Other causes of Vitamin B12 deficiency that could lead to anemia include: Dietary avoidance (vegetarianism), malabsorption, gastrectomy or gastric bypass, inflammatory bowel disease (IBD), pancreatic insufficiency, use of histamine 2-blockers and proton pump inhibitors. Pernicious anemia is associated with gastric atrophy, due to autoimmune destruction, and a lack of intrinsic factor, a glycoprotein necessary for the absorption of Vitamin B12, in the gastric mucosa. Pernicious anemia requires lifelong treatment with Vitamin B12 injections, sublingual or high-dose oral Vitamin B12 tablets, or Vitamin B12 nasal spray or gel. Since disabilities from nutritional B12 deficiency are consistent with pernicious anemia, nutritional B12 deficiency would be rated under the same diagnostic code as pernicious anemia.

    In accordance with the above discussion, VA proposes to evaluate pernicious anemia and other forms of severe B12 deficiency at 100 percent for initial diagnosis requiring transfusion due to severe anemia, or if there are signs or symptoms related to central nervous system impairment, such as encephalopathy, myelopathy, or severe peripheral neuropathy, requiring parenteral B12 therapy. Since certitude of neurologic reversibility cannot be initially determined, and B12 absorption issues may require lifelong supplementation with B12 injections every 1-3 months, VA proposes to re-evaluate at 6 months and rate according to presence of neurologic or gastrointestinal residuals.

    If absorption is adequate, lifelong oral or intranasal B12 treatment may be used. VA proposes to evaluate pernicious anemia and other forms of severe Vitamin B12 deficiency at 10 percent if it requires continuous treatment with Vitamin B12 injections, Vitamin B12 sublingual or high-dose oral tablets, or Vitamin B12 nasal spray or gel.

    VA proposes to add a note regarding evaluation which states that the 100-percent evaluation for pernicious anemia and Vitamin B12 deficiency shall be assigned as of the date of initial diagnosis requiring transfusion due to severe anemia or parenteral B12 therapy and shall continue with a mandatory VA examination six months following hospital discharge or cessation of continuous parenteral B12 therapy. The note would also state that any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 CFR 3.105(e) and that, thereafter, evaluation would be at 10-percent and any residual effects of pernicious anemia, such as neurologic involvement causing peripheral neuropathy, myelopathy, dementia, or related gastrointestinal residuals, would be separately evaluated under the most appropriate diagnostic code.

    Proposed 7723 (Acquired Hemolytic Anemia)

    There are over 200 causes of hemolytic anemia, including both acquired and hereditary types. The causes of acquired hemolytic anemia include immune disorders, toxic chemicals, medications, physical damage (such as may occur with prosthetic heart valves), and infections. Treatment may include intermittent corticosteroids; other immunosuppressive drugs; immune globulin; monoclonal antibody therapy, such as rituximab; splenectomy; erythropoiesis stimulating agent (ESA) to boost production of RBC; plasmapheresis (a process similar to dialysis that can remove certain components, such as harmful antibodies, from the blood); blood transfusions; and peripheral blood or bone marrow stem cell transplantation (www.nhlbi.nih.gov/health).

    VA proposes to list the evaluation criteria for acquired hemolytic anemia under DC 7723.

    VA proposes to rate acquired hemolytic anemia at 100 percent, if requiring a bone marrow transplant or continuous intravenous or immunosuppressive therapy (e.g., prednisone, Cytoxan (cyclophosphamide), azathioprine, or rituximab). VA proposes to rate acquired hemolytic anemia at 60 percent, if requiring immunosuppressive medication an average of 4 or more times per 12-month period. VA proposes to rate acquired hemolytic anemia at 30 percent, if requiring an average of 2-3 courses of immunosuppressive therapy per 12-month period. VA proposes to rate acquired hemolytic anemia at 10 percent, if requiring an average of 1 course of immunosuppressive therapy per 12-month period. VA proposes to evaluate acquired hemolytic anemia at 0 percent if asymptomatic.

    VA also proposes to add a Note (1) in relation to this DC, stating that a 100-percent evaluation for bone marrow transplant shall be assigned as of the date of hospital admission and shall continue for six months after hospital discharge with a mandatory VA examination six months following hospital discharge. The note would also state that any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 CFR 3.105(e).

    To remind rating specialists that there is a separate DC for splenectomy, VA proposes to add a Note (2), which would state that VA will separately evaluate splenectomy under DC 7706 and combine with an evaluation under DC 7723.

    DC 7702 (Agranulocytosis, Acute); Proposed DC 7702 (Agranulocytosis, Acquired)

    Agranulocytosis, by definition, is an acute condition. Therefore, this disease is better categorized as agranulocytosis, acquired, than as agranulocytosis, acute. VA proposes to list updated evaluation criteria for this condition under DC 7702 with the title “Agranulocytosis, acquired” to reflect current medical terminology.

    Acute agranulocytosis is currently evaluated at levels of 100, 60, 30, and 10 percent based on type of treatment or frequency of episodes of recurring infections. A 100-percent evaluation is currently assigned if requiring bone marrow transplant or transfusion of platelets or red cells at least once every six weeks or if infections recur at least once every six weeks. A 60-percent evaluation is assigned if requiring transfusion of platelets or red cells at least once every three months or if infections recur at least once every three months. A 30-percent evaluation is assigned if requiring transfusion of platelets or red cells at least once per year but less than once every three months or if infections recur at least once per year but less than once every three months. A 10-percent evaluation is assigned if requiring continuous medication for control.

    Due to advances in the pharmacological treatment of agranulocytosis and a shift in standard of care, VA proposes the deletion of the number of transfusions as a criterion for rating agranulocytosis. “Granulocyte transfusions have undergone a cycle of popularity followed by disfavor,” although they may be useful in patients with life-threatening infections whose conditions are not responding to antibiotics. A. Distenfeld, M.D., N.Y. Univ. Sch. of Med., “Agranulocytosis,” eMedicine (Updated Jan 9, 2015, by C. Braden). These transfusions are accompanied by many complications, including severe febrile reactions. The use of granulocyte transfusions remains controversial. VA proposes to evaluate agranulocytosis based on type and frequency of treatment or the average number of infections per 12-month period. VA proposes to evaluate agranulocytosis at 100 percent if requiring bone marrow transplant or if infections recur, on average, at least once every six weeks per 12-month period. VA proposes to evaluate agranulocytosis at 60 percent if requiring intermittent myeloid growth factors (granulocyte colony-stimulating factor (G-CSF) or granulocyte-macrophage colony-stimulating factor (GM-CSF)) or continuous immunosuppressive therapy such as cyclosporine to maintain absolute neutrophil count (ANC) greater than 500/μl but less than 1000/μl, or if infections recur, on average, at least once every three months per 12-month period. VA proposes to evaluate agranulocytosis at 30 percent if requiring intermittent myeloid growth factors to maintain ANC greater than 1000/μl or if infections recur, on average, at least once per 12-month period but less than once every three months per 12-month period. VA proposes to evaluate agranulocytosis at 10 percent if requiring continuous medication (e.g., antibiotics) for control or if requiring intermittent use of a myeloid growth factor to maintain ANC greater than or equal to 1500/μl.

    VA proposes to preserve the existing note under current DC 7702.

    DC 7703 (Leukemia)

    One type of leukemia, chronic myelogenous leukemia (CML), is evaluated as a myeloproliferative disorder. CML is a heterogeneous disease with three clinical phases: Chronic, transitional (accelerated), and acute (blast). Most individuals with CML are diagnosed in the chronic phase and with adequate treatment can remain in this phase for several years. However, patients with CML are never “cured” with current therapy, but often have no evidence of the disease at a molecular level. The term used for this state is “complete molecular remission” (CMR). These patients require continuous treatment because otherwise they would relapse. Patients with CML need to be considered as having active disease even when they would otherwise appear to be in remission. Therefore, VA proposes to evaluate CML under separate DC 7719.

    Leukemia is currently evaluated at 100 percent for active disease or during a treatment phase. There is also a directive to otherwise rate as anemia (current DC 7700) or aplastic anemia (DC 7716), whichever would result in the greater benefit.

    VA proposes to evaluate all forms of active leukemia other than chronic myelogenous leukemia under DC 7703.

    VA proposes to retain the 100-percent evaluation “[w]hen there is active disease or during a treatment phase.” For rating purposes, VA considers any diagnosed cancer as “active disease” if medical evidence does not demonstrate the eradication of cancerous cells, if the cancer is not in remission, or when the condition requires continuous treatment since otherwise there would invariably be a relapse.

    Since there are numerous residual effects of leukemia and its treatment, which may involve any body system, VA proposes to remove the current directive, which addresses only certain hematologic residuals: “Otherwise rate as anemia (code 7700) or aplastic anemia (code 7716), whichever would result in the greater benefit.” VA proposes another directive, which would read: “Otherwise rate residuals under the appropriate diagnostic code(s).”

    One of the four main types of leukemia, chronic lymphocytic leukemia (CLL), is now often diagnosed at a very early stage when the blood lymphocyte count is high, but the patient does not have enlargement of the lymph nodes, spleen, or liver, and the red blood cells and platelets are normal or nearly so. The average age of patients with this type of leukemia is 70. In the staging system commonly used to assess the severity of CLL, this early stage is known as Rai Stage 0. Occasionally patients are diagnosed instead as having monoclonal B-cell lymphocytosis (MBL). The diagnosis is in a similar category as Rai Stage 0 CLL. Unlike the course of the other major types of leukemia, this early stage of CLL may not progress for many years. The median survival time for this stage of disease is over 12 years. No treatment is required, and it is considered a low risk stage. For individuals with CLL at Rai Stage 0, assigning a 100-percent evaluation would be inappropriate, since antineoplastic treatment is not warranted, and at this early stage, there is little or no effect on a patient's well-being, according to the Leukemia and Lymphoma Society (www.leukemia-lymphoma.org/). Therefore, VA proposes to add a 0-percent evaluation level for asymptomatic low risk level patients with CLL at Rai Stage 0.

    Patients with lymphocytosis, enlarged lymph nodes and splenomegaly or hepatomegaly are defined as having an intermediate risk for disease progression (Rai Stages I or II). Patients with hepatomegaly (enlarged liver), anemia (Hemoglobin <11 g/dL), or thrombocytopenia (platelet counts lower than 100,000) are considered to be in the higher risk categories for disease progression (Rai Stages III and IV). Oncologists have developed criteria to determine when to initiate treatment based on the presence of genetic mutation, micro-globulins, lymphocyte doubling times and other markers to help boost the accuracy criteria of the CLL tumor burden along with staging provided by the Rai scale. Patients with newly diagnosed asymptomatic early-stage disease are generally monitored without therapy unless they show signs of disease progression or symptoms. Patients with intermediate risk (Rai Stages I and II) and those with high risk (Rai Stages III or IV) are usually started on treatment.

    VA proposes editorial changes to the currently existing note, which would be numbered as Note (1).

    Rai Stages I-IV (intermediate and high risk) usually require progressively aggressive therapy, consistent with leukemias and other malignancies. VA proposes addition of notes to clarify evaluation of CLL that progresses beyond Rai Stage 0.

    The proposed Note (2) would read: “Evaluate symptomatic chronic lymphocytic leukemia that is at Rai Stage I, II, III, or IV the same as any other leukemia evaluated under this diagnostic code.”

    The proposed Note (3) would read: “Evaluate residuals of leukemia or leukemia therapy under the appropriate diagnostic code(s). Myeloproliferative Disorders: (Diagnostic Codes 7704, 7718, 7719).”

    Myeloproliferative Disorders

    This section includes: DC 7704 (Polycythemia vera); Proposed DC 7718 (Essential thrombocythemia and primary myelofibrosis); Proposed DC 7719 (Chronic myelogenous leukemia (CML) (chronic myeloid leukemia or chronic granulocytic leukemia)).

    Myeloproliferative disorders are a group of slow-growing blood neoplasms in which the bone marrow produces excess numbers of red blood cells, white blood cells, or platelets. Polycythemia vera is one type of myeloproliferative disorder. Other conditions included in this category are essential thrombocythemia, primary idiopathic myelofibrosis, and chronic myelogenous leukemia (CML) (also called chronic myeloid leukemia or chronic granulocytic leukemia) (www.cancer.gov/cancertopics/types/myeloproliferative and www.leukemia-lymphoma.org). These conditions may evolve into acute leukemia.

    According to the National Cancer Institute of the U.S. National Institutes of Health, a variety of treatments are used for myeloproliferative disorders. For example, polycythemia vera is commonly treated by phlebotomy (removal of blood, as needed, to decrease the number of red blood cells and platelets). However, other treatments used to achieve appropriate levels of cells and to reduce complications, such as thrombosis, include radioactive phosphorous (which suppresses the overproduction of blood cells), interferon alpha (which boosts the immune system), chemotherapeutic agents (including myelosuppressants, which decrease bone marrow production), and low dose aspirin. Some of these treatments are also used for other myeloproliferative disorders.

    Other treatments used for myeloproliferative disorders include: stem cell transplant; platelet apheresis (removal of platelets from the blood in a process similar to dialysis); blood or platelet transfusions (when the bone marrow production is insufficient); periods of hospitalizations to treat infections (since patients with these conditions are at high risk for serious infections); erythropoiesis-stimulating agents (ESA) to boost production of red blood cells; tyrosine kinase inhibitors such as imatinib (Gleevec) (commonly used to treat chronic myelogenous leukemia) or ruxolitinib (new kinase inhibitor); and androgen-like drugs (which also may stimulate the bone marrow).

    Polycythemia vera is the only myeloproliferative disorder, of the above-mentioned disorders, currently evaluated in the Rating Schedule. Therefore, VA proposes the addition of DCs to provide rating criteria for other diseases under the category of myeloproliferative disorders: 7718 Essential thrombocythemia/primary myelofibrosis, and 7719 Chronic myelogenous leukemia (CML) (chronic myeloid leukemia or chronic granulocytic leukemia).

    VA proposes to add a note applicable to all myeloproliferative disorders, which would state that if the condition undergoes leukemic transformation, it should be evaluated as leukemia under DC 7703. This note is intended to remind rating specialists that a myeloproliferative disorder may undergo leukemic transformation and warrant evaluation under DC 7703.

    VA also proposes to add another note applicable to all myeloproliferative disorders, which would state that a 100-percent evaluation shall be assigned as of the date of hospital admission for peripheral blood or bone marrow stem cell transplant, or during the period of treatment with radioactive phosphorus or chemotherapy (including myelosuppressants), and that six months following hospital discharge or, in the case of radioactive phosphorus or chemotherapy treatment, six months after completion of treatment, the appropriate disability rating shall be determined by mandatory VA examination. The note would also state that any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 CFR 3.105(e).

    DC 7704 (Polycythemia Vera)

    VA proposes a 100-percent evaluation if requiring peripheral blood or bone marrow stem-cell transplant or treatment with radioactive phosphorus or chemotherapy (including myelosuppressants).

    VA proposes a 60-percent evaluation if requiring phlebotomy 6 or more times per 12-month period to control RBC count or if requiring radioactive phosphorous treatment, chemotherapy, or targeted agents like ruxolitinib or imatinib. VA proposes a 30-percent evaluation if requiring phlebotomy 4-5 times per 12-month period or if requiring continuous biologic therapy or myelosuppressive agents to maintain platelet count in the less than 200,000 range or white blood cells (WBC) in the less than 12,000 range. VA proposes a 10-percent evaluation if requiring, on an intermittent basis, phlebotomy, biologic therapy, or interferon, as needed, but less than 4 times per 12-month period.

    VA proposes to number the current note for DC 7704 as Note (1). VA proposes the addition of the two notes described above for all myeloproliferative disorders to be added as Notes (2) and (3) after the current note for DC 7704.

    Proposed DC 7718 (Essential Thrombocythemia and Primary Myelofibrosis)

    VA proposes a 100-percent evaluation if requiring either continuous myelosuppressive therapy or, for six months following hospital admission, any of the following treatments: Peripheral blood or bone marrow stem cell transplant, or treatment with radioactive phosphorus or chemotherapy (including myelosuppressants); a 70 percent evaluation if requiring either continuous or intermittent myelosuppressive therapy to maintain platelet count less than 500 × 10 9/L; a 30-percent evaluation if requiring continuous or intermittent myelosuppressive therapy to maintain platelet count of 200,000-400,000 or white blood cell (WBC) count of 4,000-10,000; and a 0-percent evaluation if asymptomatic.

    VA proposes the addition of the two notes described above for all myeloproliferative disorders.

    Proposed DC 7719 (Chronic Myelogenous Leukemia (CML) (Chronic Myeloid Leukemia or Chronic Granulocytic Leukemia))

    VA proposes a 100-percent evaluation if requiring peripheral blood or bone marrow stem cell transplant or requiring continuous myelosuppressive or immunosuppressive therapy. VA proposes a 60-percent evaluation if requiring intermittent myelosuppressive therapy, or targeted therapy with tyrosine kinase inhibitors, or interferon treatment. VA proposes a 30-percent evaluation if in apparent remission on continuous targeted therapy with tyrosine kinase inhibitors.

    VA proposes the addition of the two notes described above for all myeloproliferative disorders.

    Current DC 7705 (Thrombocytopenia, Primary, Idiopathic or Immune); Proposed DC 7705 (Immune Thrombocytopenia)

    Thrombocytopenia is currently evaluated at levels of 100, 70, 30, and 0 percent based on the platelet count, the presence or absence of bleeding episodes, and whether treatment is required. VA proposes to change the title from “Thrombocytopenia, primary, idiopathic or immune” to “Immune thrombocytopenia.”

    VA proposes to use the same bases for evaluation of disability, while updating criteria to reflect advances in medical knowledge. A 100-percent evaluation is currently assigned if the platelet count is less than 20,000, with active bleeding, requiring treatment with medication and transfusions. A 70-percent evaluation is currently assigned for a platelet count between 20,000 and 70,000, not requiring treatment, without bleeding. A 30-percent evaluation is currently assigned for a stable platelet count between 70,000 and 100,000, without bleeding. A 0-percent evaluation is currently assigned for a stable platelet count of 100,000 or more, without bleeding. VA proposes to provide evaluation levels of 100, 70, 30, 10 and 0 percent, with criteria based in part on the recommendations of the American Society of Hematology for diagnosis and treatment of idiopathic thrombocytopenic purpura, updated in 2010.

    VA proposes to assign a 100-percent evaluation for immune thrombocytopenia requiring chemotherapy for chronic refractory thrombocytopenia or a platelet count from 20,000 to 30,000 despite treatment. VA proposes to assign a 70-percent evaluation if requiring immunosuppressive therapy or for a platelet count higher than 30,000 but not higher than 50,000, with history of hospitalization because of severe bleeding requiring intravenous immune globulin, high-dose parenteral corticosteroids, and platelet transfusions. VA proposes to assign a 30-percent evaluation for a platelet count higher than 30,000 but not higher than 50,000, with either immune thrombocytopenia or mild mucous membrane bleeding which requires oral corticosteroid therapy or intravenous immune globulin. VA proposes to assign a 10-percent evaluation for a platelet count higher than 30,000 but not higher than 50,000, not requiring treatment. VA proposes to assign a 0-percent evaluation for platelet count above 50,000 and asymptomatic, or for immune thrombocytopenia in remission.

    VA also proposes to add a note instructing raters to separately evaluate splenectomy under DC 7706 and combine with an evaluation under this DC. VA proposes to add a second note clarifying re-evaluation following chemotherapy as follows: “A 100-percent evaluation shall continue beyond the cessation of chemotherapy. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of [38 CFR 3.105(e)].”

    DC 7706 (Splenectomy); DC 7707 (Spleen, Injury of, Healed)

    VA proposes no change to these DCs except to move the word “separately” in the note following DC 7706 to clarify the meaning.

    Current DC 7709 (Hodgkin's Disease); Proposed DC 7709 (Hodgkin's Lymphoma)

    VA proposes to change the title associated with current DC 7709 from “Hodgkin's disease” to “Hodgkin's lymphoma” to be consistent with current medical terminology and knowledge. VA proposes minor editorial changes to the existing note. The following sentence was modified to read as follows at the end of the existing note: “If there has been no local recurrence or metastasis, rate on residuals under the appropriate diagnostic code(s).”

    DC 7710 (Adenitis, Tuberculous, Active or Inactive)

    VA proposes no changes for this diagnostic code except for the deletion of a section symbol (§ ).

    Proposed DC 7712 (Multiple Myeloma)

    VA proposes to add a new DC 7712 for multiple myeloma (MM). MM is a type of systemic, incurable malignancy resulting from the proliferation of abnormal plasma cells in the bone marrow. The overgrowth of these plasma cells results in tumors that are deposited primarily in the bones, but also in the kidneys and other organs. The median age at diagnosis is 65 years, and the average 5-year survival rate is about 30 percent. Survival time depends on many factors, such as age, gender, race, stage of disease at time of diagnosis, and treatment. Recent therapeutic advances have improved the quality of life and length of survival time, but MM remains incurable. Some patients go into remission for various periods but require maintenance therapy even while in remission.

    MM has a wide variety of clinical presentations that can vary between asymptomatic to severely symptomatic.

    Asymptomatic (smoldering or indolent) myeloma is a slow-growing, asymptomatic precursor or pre-malignant phase of MM. It is usually not treated until evidence of end organ damage develops. It has a high risk of developing into MM. However, since it is not malignant, is asymptomatic, and does not require treatment, it would not warrant a compensable evaluation under this diagnostic code, and VA proposes to rate it at 0 percent.

    Even if smoldering MM is currently regarded as a pre-malignant state, there are subsets of patients with different rates of progression towards MM. No single pathological or molecular feature can be used to distinguish between smoldering and pre-malignant MM with clonal plasma cells from those with clonal malignant plasma cells. A biomarker-based definition that can predict this transformation is needed but is not yet currently available.

    Symptomatic multiple myeloma, as further defined in the below proposed notes to new DC 7712, would therefore be rated at 100 percent. VA proposes the following notes to new DC 7712 based on the most recently updated diagnostic criteria staging system of the International Diagnostic Working Group of 2014. See S. Rajkumar, M.D., “International Myeloma Working Group updated criteria for the diagnosis of multiple myeloma,” 15(12) Lancet Oncol. e538 (2014).

    The first note would state the following: “Symptomatic myeloma requires an elevated serum or urine M (monoclonal) protein value (however no specific concentration is required for diagnosis) or presence of increased bone marrow clonal plasma cells ≥10%. There must be also evidence of related organ tissue impairment (ROTI) due to the plasma cell proliferation. This process is manifested by elevated serum calcium, renal failure, anemia, and bone lesions (CRAB). The corresponding laboratory values are: Serum calcium ≥11.5 mg/100 mL, renal insufficiency with creatinine clearance <40 cc/min or serum creatinine >1.73 mmol/L, normochromic, normocytic anemia with a hemoglobin value >2 g/100 mL below the lower limit of normal, or a hemoglobin value <10 g/100 mL, lytic lesions (one or more osteolytic lesions by radiographic or other imaging system), severe osteopenia, or pathologic bone fractures. A small percentage of patients with symptomatic myeloma have no detectable M-protein in serum or urine but do have myeloma-related organ impairment ROTI and increased bone marrow plasma cells. Any of the following validated biomarkers of malignancy are acceptable for the diagnosis of MM, including clonal bone marrow plasma cells ≥60%, serum free light chain ratio ≥100, or free light chain ≥100 mg/L, or more than one focal bone or bone marrow lesion on MRI >5 mm in size.”

    The second note would state the following: “A nonsecretory myeloma (a variant form of symptomatic myeloma) shows absent M-protein in the serum and urine, bone marrow plasmacytosis, and ROTI. While this group of patients represents a minority of cases (1-2%), this uncommon presentation may lead to delay in diagnosis because of the scarcity of laboratory findings commonly in the face of an isolated bone process such as low back pain.”

    The third note would state the following: “The diagnostic criteria for asymptomatic (smoldering or indolent) myeloma requires the following two criteria: (1) An elevated serum monoclonal protein (IgG or IgA) >30g/L, urine monoclonal protein >500 mg/24 hrs. or clonal bone marrow plasmal cells 10%-60%, and (2) absence of myeloma defining events or amyloidosis without any related organ or tissue impairment (ROTI) or end-organ damage. There is usually normal serum calcium, hemoglobin, and serum creatinine, and no bone lesions on full skeletal survey and no evidence of amyloidosis or light chain deposition disease.”

    Multiple myeloma is incurable, and carries a poor prognosis. Therefore, VA proposes Note (4), which would state that the 100-percent evaluation shall continue for five years after the diagnosis of symptomatic multiple myeloma, at which time the appropriate disability evaluation shall be determined by mandatory VA examination. It would also state that any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 CFR 3.105(e) and 3.344 (a) and (b).

    DC 7714 (Sickle Cell Anemia)

    Sickle cell anemia is currently evaluated at levels of 100, 60, 30, and 10 percent. The current 100-percent evaluation criteria are: “With repeated painful crises, occurring in skin, joints, bones or any major organs caused by hemolysis and sickling of red blood cells, with anemia, thrombosis and infarction, with symptoms precluding even light manual labor.” VA proposes at the 100-percent level to change the term “painful crises” to “painful episodes” in keeping with current medical terminology, to insert the word “residual” before the word “symptoms,” and to change punctuation to clarify meaning. The 100 percent category would also require at least 4 or more painful episodes in the past 12 months for clarification purposes.

    The current 60-percent evaluation criteria are: “With painful crises several times a year or with symptoms precluding other than light manual labor.” As in the 100-percent evaluation criteria, VA proposes to change the term “painful crises” to “painful episodes.” To remove ambiguity, we also propose replacement of the phrase “With painful crises several times a year” with “Averaging 3 or more painful episodes per 12-month period.”

    The current 30-percent evaluation criterion is: “Following repeated hemolytic sickling crises with continuing impairment of health.” VA proposes to replace “Following repeated hemolytic sickling crises with continuing impairment of health” with “Averaging 1 or 2 painful episodes per 12-month period” in order to make the criterion less ambiguous and promote consistent evaluations. VA proposes no change in the current 10-percent evaluation criteria of “Asymptomatic, established case in remission, but with identifiable organ impairment,” and only an editorial change in the note under this DC to reflect the fact that the former Compensation and Pension Service has been reorganized as the Compensation Service and the Pension and Fiduciary Service.

    DC 7715 (Non-Hodgkin's Lymphoma)

    Currently, non-Hodgkin's lymphoma (NHL), DC 7715, is evaluated at 100 percent for active disease or during a treatment phase. VA proposes to modify the current note under DC 7715 with some non-substantive changes and by extending the allowable time required for mandatory examination from six months to 2 years, as provided in the proposed note to DC 7715. This is based upon current medical information suggesting that recurrences in non-Hodgkin's lymphoma are very high, with common tumor recurrences within or after the period that mandates lowering of disability rating for treatment completion or apparent remission of 6 months. Data on relapsed aggressive NHL: http://www.texasoncology.com/types-of-cancer/non-hodgkins-lymphoma/intermediate-grade-aggressive-grade-nhl/relapsed-aggressive-nhl/). VA also proposes to modify the criteria as, “When there is active disease, during treatment phase or with indolent and non-contiguous phase of low grade NHL.” See National Cancer Institute Adult NHL PDQ treatment Update (http://www.cancer.gov/cancertopics/pdq/treatment/adult-non-hodgkins/HealthProfessional/page9#_195_toc (Dec. 2014).

    DC 7716 (Aplastic Anemia)

    Aplastic anemia, DC 7716, is currently evaluated at levels of 100, 60, 30, and 10 percent. The current 100-percent evaluation criteria are: “Requiring bone marrow transplant, or; requiring transfusion of platelets or red cells at least once every six weeks, or; infections recurring at least once every six weeks.” VA proposes to expand “bone marrow transplant” to “peripheral blood or bone marrow stem cell transplant,” as either may be used for treatment. In addition, VA proposes to add the phrase “on average” to the specific numbers of platelet or red cell transfusions required and to the frequency of recurring infections, and to add “per 12-month period” to promote consistent evaluations at the 100-, 60-, and 30-percent levels.

    The current 60-percent criteria are: “Requiring transfusion of platelets or red cells at least once every three months, or; infections recurring at least once every three months.” Continuous immunosuppressive therapy is currently a standard treatment option for aplastic anemia. A. Bacigalupo, “Diagnosis and treatment of acquired aplastic anemia,” 23(2) Hematol Oncol. Clinical N. Am. 159 (2009). We therefore propose to add, “using continuous immunosuppressive therapy” as an alternative criterion for the 60-percent level. VA also proposes the changes described above for the 100-percent criteria concerning adding “on average” and “per 12-month period.” The current 30-percent evaluation criteria are: “Requiring transfusion of platelets or red cells at least once per year but less than once every three months, or; infections recurring at least once per year but less than once every three months.” VA proposes only the changes described above for the 100-percent criteria concerning adding “on average” and “per 12-month period.” The current 10-percent criterion is “Requiring continuous medication for control.” VA proposes to delete this evaluation level as the medications used to treat aplastic anemia warrant higher levels of evaluation.

    VA proposes a change in the note following this DC stating that a 100-percent evaluation will be provided for either peripheral blood or bone marrow stem cell transplant. The reminder of the note is otherwise unchanged.

    Proposed DC 7724 (Solitary Plasmacytoma)

    Solitary bone or extramedullary (occurring in soft tissue outside of the bone marrow) plasmacytomas are malignant plasma cell neoplasms that are closely related to multiple myeloma. A solitary bone plasmacytoma develops into multiple myeloma in 50 to 60 percent of cases, and into an extramedullary plasmacytoma in 10 to 30 percent of cases. A solitary plasmacytoma that remains solitary has a better prognosis than multiple myeloma and may be curable. VA proposes to rate solitary plasmacytomas similarly to other malignant neoplasms that are potentially curable. VA proposes to rate solitary plasmacytoma at 100 percent when there is active disease or during a treatment phase and to add Note (1) to state that a 100-percent evaluation shall continue beyond the cessation of any surgical therapy, radiation therapy, antineoplastic chemotherapy, or other therapeutic procedures (including autologous stem cell transplantation), and that six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. The note would also state that any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 CFR 3.105(e) and that, if there has been no recurrence, to rate residuals under the appropriate diagnostic codes.

    VA proposes to add Note (2) to remind rating specialists of the potential for the transformation of solitary plasmacytomas into multiple myeloma. VA also proposes to add Note (3) to remind rating specialists of the residual effects of a solitary plasmacytoma and the adverse effects of medical treatment.

    Proposed DC 7725 (Myelodysplastic Syndromes)

    VA proposes to add a new DC 7725 for myelodysplastic syndromes because these conditions are relatively common in veterans and do not have a diagnostic code under which they can be appropriately evaluated. These syndromes, sometimes called “pre-leukemia” in the past, are a group of disorders associated with bone marrow dysfunction, in which healthy and mature red blood cells, white blood cells, and platelets are not produced. Therefore, there may be a deficiency of any type of blood cell. About one-third of those with myelodysplastic syndromes progress to acute myelogenous leukemia in months or years. Some types of myelodysplastic syndromes are primary, in which there is no known cause for the syndromes, and others are secondary types, which develop after treatment with chemotherapy or radiation therapy for other diseases. The classification of these disorders is complex and differs among different medical organizations. Treatment depends in part on the specific disorder but also on many other factors. The mean overall survival time for these conditions is 6 months to 6 years.

    VA proposes to evaluate myelodysplastic syndromes based on type and frequency of treatment and number of infections per 12-month period. VA also proposes to include in the evaluation criteria treatment with biologic therapy, either interferon alpha on an ongoing basis or erythropoiesis-stimulating agent (ESA) to boost red blood cell production. These treatments are used in some types of myelodysplastic disorders. VA proposes to provide evaluation levels of 100, 60, and 30 percent. VA proposes to assign 100 percent for either of the following: Requiring peripheral blood or bone marrow stem cell transplant, or requiring chemotherapy (including hypomethylating agents and immunmodulators, e.g., lenalidomide). VA proposes to assign 60 percent for either of the following: Requiring, on average, 4 or more blood or platelet transfusions per 12-month period, or infections requiring hospitalization, on average, 3 or more times per 12-month period. VA proposes to assign 30 percent for any of the following: Requiring, on average, 1 to 3 blood or platelet transfusions per 12-month period, infections requiring hospitalization, on average, 1 to 2 times per 12-month period; or requiring biologic therapy, either interferon alpha on an ongoing basis or erythropoiesis stimulating agent (ESA) for up to 12 weeks per 12-month period.

    VA also proposes to add Note (1) stating that if this condition progresses to leukemia, to evaluate it as leukemia under DC 7703 and Note (2) stating that a 100-percent evaluation shall be assigned as of the date of hospital admission for peripheral blood or bone marrow stem cell transplant, or during the period of treatment with chemotherapy and shall continue with a mandatory VA examination six months following hospital discharge or, in the case of radioactive phosphorus or chemotherapy treatment, six months after completion of treatment. Note (2) would also state that any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 CFR 3.105(e) and that, if there has been no recurrence, residuals will be rated under the appropriate diagnostic codes.

    Proposed Changes to Appendices A, B, and C to Part 4

    VA proposes to amend appendices A, B, and C to reflect the above-noted proposed changes. In appendix A to part 4, § 4.117, remove diagnostic code 7700, revise diagnostic codes 7702-7705, 7709, and 7714-7716, and add diagnostic codes 7718-7725.

    In appendix B to part 4, revise the title from “The Hemic and Lymphatic Systems” to “The Hematologic and Lymphatic Systems”, remove diagnostic code 7700 and its disability entry, revise the section heading and the disability entry for diagnostic codes 7702, 7705 and 7709, and add disability codes and disability entries for 7712 and 7718-7725.

    In appendix C to part 4, convert the existing entry for “Anemia” into a new section titled “Anemia”, remove diagnostic code 7700 and its disability entry and insert diagnostic codes 7720-7723 and their disability entries in that section; revise the disability entry for diagnostic codes 7702, 7705 and 7709; create a new section titled “Hematologic” and insert diagnostic codes 7705, 7712, 7718, 7724 and 7725 and their disability entries in that section; and convert the existing entry for leukemia into a new section titled “Leukemia” and insert diagnostic codes 7703 and 7719 into that section.

    Paperwork Reduction Act

    This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

    Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This proposed rule would not affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

    Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by the Office of Management and Budget, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

    The economic, interagency, budgetary, legal, and policy implications of this regulatory action has been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of this rulemaking and its impact analysis are available on VA's Web site at http://www1.va.gov/orpm/, by following the link for “VA Regulations Published.”

    Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.

    Catalog of Federal Domestic Assistance Numbers and Titles

    The Catalog of Federal Domestic Assistance program numbers and titles for this proposal are 64.104, Pension for Non-Service-Connected Disability for Veterans, and 64.109, Veterans Compensation for Service-Connected Disability.

    Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Nabors II, Chief of Staff, Department of Veterans Affairs, approved this document on July 30, 2015, for publication.

    List of Subjects in 38 CFR Part 4

    Disability benefits, Pensions, Veterans.

    Dated: July 31, 2015. Jeffrey M. Martin, Office Program Manager, Office of Regulation Policy & Management, Office of the General Counsel, Department of Veterans Affairs.

    For the reasons set out in the preamble, VA proposes to amend 38 CFR part 4, subpart B, to read as follows:

    PART 4—SCHEDULE FOR RATING DISABILITIES Subpart B—Disability Ratings 1. The authority citation for part 4 continues to read as follows: Authority:

    38 U.S.C. 1155, unless otherwise noted.

    2. Revise the undesignated center heading preceding § 4.117 to read as follows: The Hematologic and Lymphatic Systems 3. Revise § 4.117 to read as follows:
    § 4.117 Schedule of ratings—hematologic and lymphatic systems. Rating 7702 Agranulocytosis, acquired: Requiring bone marrow transplant or infections recurring, on average, at least once every six weeks per 12-month period 100 Requiring intermittent myeloid growth factors (granulocyte colony-stimulating factor (G-CSF) or granulocyte-macrophage colony-stimulating factor (GM-CSF)) or continuous immunosuppressive therapy such as cyclosporine to maintain absolute neutrophil count (ANC) greater than 500/μl but less than 1,000/μl; or infections recurring, on average, at least once every three months per 12-month period 60 Requiring intermittent myeloid growth factors to maintain ANC greater than 1,000/µl; or infections recurring, on average, at least once per 12-month period but less than once every three months per 12-month period 30 Requiring continuous medication (e.g., antibiotics) for control; or requiring intermittent use of a myeloid growth factor to maintain ANC greater than or equal to 1,500/μl 10 Note: A 100-percent evaluation for bone marrow transplant shall be assigned as of the date of hospital admission and shall continue with a mandatory VA examination six months following hospital discharge. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. 7703 Leukemia (except for chronic myelogenous leukemia): When there is active disease or during a treatment phase 100 Otherwise rate residuals under the appropriate diagnostic code(s). Chronic lymphocytic leukemia or monoclonal B-cell lymphocytosis (MBL), asymptomatic, Rai Stage 0 0 Note (1): A 100-percent evaluation shall continue beyond the cessation of any surgical therapy, radiation therapy, antineoplastic chemotherapy, or other therapeutic procedures. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no recurrence, rate on residuals. Note (2): Evaluate symptomatic chronic lymphocytic leukemia that is at Rai Stage I, II, III, or IV the same as any other leukemia evaluated under this diagnostic code. Note (3): Evaluate residuals of leukemia or leukemia therapy under the appropriate diagnostic code(s). Myeloproliferative Disorders: (Diagnostic Codes 7704, 7718, 7719). 7704 Polycythemia vera: Requiring peripheral blood or bone marrow stem-cell transplant or treatment with radioactive phosphorus or chemotherapy (including myelosuppressants) 100 Requiring phlebotomy 6 or more times per 12-month period to control RBC count or if requiring radioactive phosphorous treatment, chemotherapy, or targeted agents such as imatinib or ruxolitinib 60 Requiring phlebotomy 4-5 times per 12-month period or if requiring continuous biologic therapy or myelosuppresive agents to maintain platelets <200,000 or white blood cells (WBC) <12,000 30 Requiring phlebotomy, biologic therapy, or interferon on an intermittent basis, as needed, 3 or fewer times per 12-month period 10 Note (1): Rate complications such as hypertension, gout, stroke, or thrombotic disease separately. Note (2): If the condition undergoes leukemic transformation, evaluate as leukemia under diagnostic code 7703. Note (3): A 100-percent evaluation shall be assigned as of the date of hospital admission for peripheral blood or bone marrow stem cell transplant; or during the period of treatment with radioactive phosphorus or chemotherapy (including myelosuppressants). Six months following hospital discharge or, in the case of radioactive phosphorus or chemotherapy treatment, six months after completion of treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. 7705 Immune thrombocytopenia: Requiring chemotherapy for chronic refractory thrombocytopenia or a platelet count from 20,000 to 30,000 despite treatment 100 Requiring immunosuppressive therapy or for a platelet count higher than 30,000 but not higher than 50,000, with history of hospitalization because of severe bleeding requiring intravenous immune globulin, high-dose parenteral corticosteroids, and platelet transfusions 70 Platelet count higher than 30,000 but not higher than 50,000, with either immune thrombocytopenia or mild mucous membrane bleeding which requires oral corticosteroid therapy or intravenous immune globulin 30 Platelet count higher than 30,000 but not higher than 50,000, not requiring treatment 10 Platelet count above 50,000 and asymptomatic, or for immune thrombocytopenia in remission. 0 Note (1): Separately evaluate splenectomy under diagnostic code 7706 and combine with an evaluation under this diagnostic code. Note (2): A 100-percent evaluation shall continue beyond the cessation of chemotherapy. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. 7706 Splenectomy 20 Note: Separately rate complications such as systemic infections with encapsulated bacteria. 20 7707 Spleen, injury of, healed. Rate for any residuals. 7709 Hodgkin's lymphoma: With active disease or during a treatment phase 100 Note: A 100-percent evaluation shall continue beyond the cessation of any surgical therapy, radiation therapy, antineoplastic chemotherapy, or other therapeutic procedures. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals under the appropriate diagnostic code(s). 7710 Adenitis, tuberculous, active or inactive. Rate under § 4.88c or 4.89 of this part, whichever is appropriate. 7712 Multiple myeloma: Symptomatic multiple myeloma 100 Asymptomatic (smoldering or indolent) 0 Note (1): Symptomatic myeloma requires, (i) an elevated serum or urine M (monoclonal) protein value (however no specific concentration is required for diagnosis), or (ii) presence of increased bone marrow clonal plasma cells ≥10%. There must be also evidence of related organ tissue impairment (ROTI) due to the plasma cell proliferation. This process is manifested by elevated serum calcium, renal failure, anemia, and bone lesions (CRAB). The corresponding laboratory values are: Serum calcium ≥11.5 mg/100 mL, renal insufficiency with creatinine clearance <40 cc/min or serum creatinine >1.73 mmol/L, normochromic, normocytic anemia with a hemoglobin value >2 g/100 mL below the lower limit of normal, or a hemoglobin value <10 g/100 mL, lytic lesions (one or more osteolytic lesions by radiographic or other imaging system) severe osteopenia, or pathologic bone fractures. A small percentage of patients with symptomatic myeloma have no detectable M-protein in serum or urine but do have myeloma-related organ impairment ROTI and increased bone marrow plasma cells. Any of the following validated biomarkers of malignancy are acceptable for the diagnosis of MM, including clonal bone marrow plasma cells ≥60%, serum free light chain ratio of ≥100, or free light chain of ≥100 mg/L, or more than one focal bone or bone marrow lesion on MRI >5 mm in size. Note (2): A nonsecretory myeloma (a variant form of symptomatic myeloma) shows absent M-protein in the serum and urine, bone marrow plasmacytosis, and ROTI. While this group of patients represents a minority of cases (1-2%), this uncommon presentation may lead to delay in diagnosis because of the scarcity of laboratory findings commonly in the face of an isolated bone process such as low back pain. Note (3): The diagnostic criteria for asymptomatic (smoldering or indolent) myeloma requires the following two criteria: (1) An elevated serum monoclonal protein (IgG or IgA) >30 g/L, urine monoclonal protein >500 mg/24 hrs., or clonal bone marrow plasma cells 10%-60%, and (2) absence of myeloma defining events of amyloidosis without any related organ or tissue impairment (ROTI) or end-organ damage. There is usually normal serum calcium, hemoglobin, and serum creatinine, and no bone lesions on full skeletal survey and no evidence of amyloidosis or light chain deposition disease. Note (4): The 100-percent evaluation shall continue for five years after the diagnosis of symptomatic multiple myeloma, at which time the appropriate disability evaluation shall be determined by mandatory VA examination. Any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) and § 3.344 (a) and (b) of this chapter. 7714 Sickle cell anemia: With at least 4 or more painful episodes per 12-month period, occurring in skin, joints, bones, or any major organs, caused by hemolysis and sickling of red blood cells, with anemia, thrombosis, and infarction, with residual symptoms precluding even light manual labor 100 Averaging 3 or more painful episodes per 12-month period or with symptoms precluding other than light manual labor 60 Averaging 1 or 2 painful episodes per 12-month period 30 Asymptomatic, established case in remission, but with identifiable organ impairment 10 Note: Sickle cell trait alone, without a history of directly attributable pathological findings, is not a ratable disability. Cases of symptomatic sickle cell trait will be forwarded to the Director, Compensation Service, for consideration under § 3.321(b)(1) of this chapter. 7715 Non-Hodgkin's lymphoma: When there is active disease, during treatment phase or with indolent and non-contiguous phase of low grade NHL 100 Note: A 100-percent evaluation shall continue beyond the cessation of any surgical therapy, radiation therapy, antineoplastic chemotherapy, or other therapeutic procedures. Two years after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no recurrence, rate on residuals under the appropriate diagnostic code(s). 7716 Aplastic anemia: Requiring peripheral blood or bone marrow stem cell transplant; or requiring transfusion of platelets or red cells, on average, at least once every six weeks per 12-month period; or infections recurring, on average, at least once every six weeks per 12-month period 100 Requiring transfusion of platelets or red cells, on average, at least once every three months per 12-month period; or infections recurring, on average, at least once every three months per 12-month period; or using continuous immunosuppressive therapy 60 Requiring transfusion of platelets or red cells, on average, at least once per 12-month period, but less than once every three months per 12-month period; or infections recurring, on average, at least once per 12-month period, but less than once every three months per 12-month period 30 Note: A 100-percent evaluation for peripheral blood or bone marrow stem cell transplant shall be assigned as of the date of hospital admission and shall continue with a mandatory VA examination six months following hospital discharge. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. 7718 Essential thrombocythemia and primary myelofibrosis Requiring either continuous myelosuppressive therapy or, for six months following hospital admission, peripheral blood or bone marrow stem cell transplant, or treatment with radioactive phosphorus or chemotherapy (including myelosuppressants) 100 Requiring continuous or intermittent myelosuppressive therapy to maintain platelet count <500 × 109/L 70 Requiring continuous or intermittent myelosuppressive therapy to maintain platelet count of 200,000-400,000, or white blood cell (WBC) count of 4,000-10,000 30 Asymptomatic 0 Note (1): If the condition undergoes leukemic transformation, evaluate as leukemia under diagnostic code 7703. Note (2): A 100-percent evaluation shall be assigned as of the date of hospital admission for peripheral blood or bone marrow stem cell transplant; or during the period of treatment with radioactive phosphorus or chemotherapy (including myelosuppressants). Six months following hospital discharge or, in the case of radioactive phosphorus or chemotherapy treatment, six months after completion of treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. 7719 Chronic myelogenous leukemia (CML) (chronic myeloid leukemia or chronic granulocytic leukemia): Requiring peripheral blood or bone marrow stem cell transplant, or continuous myelosuppressive or immunosuppressive therapy treatment 100 Requiring intermittent myelosuppressive therapy, or targeted therapy with tyrosine kinase inhibitors, or interferon treatment 60 In apparent remission on continuous targeted therapy with tyrosine kinase inhibitors 30 Note (1): If the condition undergoes leukemic transformation, evaluate as leukemia under diagnostic code 7703. Note (2): A 100-percent evaluation shall be assigned as of the date of hospital admission for peripheral blood or bone marrow stem cell transplant; or during the period of treatment with radioactive phosphorus or chemotherapy (including myelosuppressants). Six months following hospital discharge or, in the case of radioactive phosphorus or chemotherapy treatment, six months after completion of treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105 of this chapter. 7720 Iron deficiency anemia: Requiring intravenous iron infusions on average 4 or more times per 12-month period 30 Requiring continuous treatment with high-dose oral supplementation 10 Asymptomatic or requiring treatment only by dietary modification 0 Note: Do not evaluate iron deficiency anemia due to blood loss under this diagnostic code. Evaluate iron deficiency anemia due to blood loss under the criteria for the condition causing the blood loss. 0 7721 Folic acid deficiency: Requiring continuous treatment with high-dose oral supplementation 10 Asymptomatic or requiring treatment only by dietary modification 0 7722 Pernicious anemia and Vitamin B12 deficiency anemia: For initial diagnosis requiring transfusion due to severe anemia, or if there are signs or symptoms related to central nervous system impairment, such as encephalopathy, myelopathy, or severe peripheral neuropathy, requiring parenteral B12 therapy 100 Requiring continuous treatment with Vitamin B12 injections, Vitamin B12 sublingual or high-dose oral tablets, or Vitamin B12 nasal spray or gel 10 Note: A 100-percent evaluation for pernicious anemia and Vitamin B12 deficiency shall be assigned as of the date of the initial diagnosis requiring transfusion due to severe anemia or parenteral B12 therapy and shall continue with a mandatory VA examination six months following hospital discharge or cessation of parenteral B12 therapy. Any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. Thereafter, evaluate at 10-percent and separately evaluate any residual effects of pernicious anemia, such as neurologic involvement causing peripheral neuropathy, myelopathy, dementia, or related gastrointestinal residuals, under the most appropriate diagnostic code. 7723 Acquired hemolytic anemia: Requiring a bone marrow transplant or continuous intravenous or immunosuppressive therapy (e.g., prednisone, Cytoxan, azathioprine, or rituximab) 100 Requiring immunosuppressive medication an average of 4 or more times per 12-month period 60 Requiring an average of 2-3 courses of immunosuppressive therapy per 12-month period 30 Requiring an average of one course of immunosuppressive therapy per 12-month period 10 Asymptomatic 0 Note (1): A 100-percent evaluation for bone marrow transplant shall be assigned as of the date of hospital admission and shall continue for six months after hospital discharge with a mandatory VA examination six months following hospital discharge. Any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. Note (2): Separately evaluate splenectomy under diagnostic code 7706 and combine with an evaluation under diagnostic code 7723. 7724 Solitary plasmacytoma: Solitary plasmacytoma, when there is active disease or during a treatment phase 100 Note (1): A 100-percent evaluation shall continue beyond the cessation of any surgical therapy, radiation therapy, antineoplastic chemotherapy, or other therapeutic procedures (including autologous stem cell transplantation). Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no recurrence, rate residuals under the appropriate diagnostic codes. Note (2): Rate a solitary plasmacytoma that has developed into multiple myeloma as symptomatic multiple myeloma.
  • Note (3): Rate residuals of plasma cell dysplasia (e.g., thrombosis) and adverse effects of medical treatment (e.g., neuropathy) under the appropriate diagnostic codes.
  • 7725 Myelodysplastic syndromes: Requiring peripheral blood or bone marrow stem cell transplant; or requiring chemotherapy 100 Requiring, on average, 4 or more blood or platelet transfusions per 12-month period; or infections requiring hospitalization, on average, 3 or more times per 12-month period 60 Requiring, on average, 1 to 3 blood or platelet transfusions per 12-month period; infections requiring hospitalization, on average, 1 to 2 times per 12-month period; or requiring biologic therapy, either interferon alpha on an ongoing basis or erythropoiesis stimulating agent (ESA) for 12 weeks or less per 12-month period 30 Note (1): If the condition progresses to leukemia, evaluate as leukemia under diagnostic code 7703. Note (2): A 100-percent evaluation shall be assigned as of the date of hospital admission for peripheral blood or bone marrow stem cell transplant, or during the period of treatment with chemotherapy and shall continue with a mandatory VA examination six months following hospital discharge or, in the case of radioactive phosphorus or chemotherapy treatment, six months after completion of treatment. Any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no recurrence, residuals will be rated under the appropriate diagnostic codes.
    (Authority: 38 U.S.C. 1155.)
    3. Amend appendix A to part 4 by: a. Revising the entries for diagnostic codes 7700, 7702 through 7705, 7709, 7712, and 7714 through 7716; and b. Adding entries for diagnostic codes 7718 through 7725.

    The revisions and additions read as follows:

    Appendix A to Part 4—Table of Amendments and Effective Dates Since 1946 Sec. Diagnostic Code No. *         *         *         *         *         *         * 4.117 7700 Removed [effective date of final rule]. *         *         *         *         *         *         * 7702 Evaluation October 23, 1995; title [effective date of final rule]; evaluation [effective date of final rule]. 7703 Evaluation August 23, 1948; criterion October 23, 1995; evaluation [effective date of final rule]; criterion [effective date of final rule]. 7704 Evaluation October 23, 1995; evaluation [effective date of final rule]. 7705 Evaluation October 23, 1995; title [insert effective date of final rule]; evaluation [effective date of final rule]; criterion [effective date of final rule]. *         *         *         *         *         *         * 7709 Evaluation March 10, 1976; criterion October 23, 1995; title [effective date of final rule]; criterion [effective date of final rule]. *         *         *         *         *         *         * 7712 Added [effective date of final rule]. *         *         *         *         *         *         * 7714 Added September 9, 1975; criterion October 23, 1995; criterion [effective date of final rule] 7715 Added October 26, 1990; criterion [effective date of final rule]. 7716 Added October 23, 1995; evaluation [effective date of final rule]; criterion [effective date of final rule]. *         *         *         *         *         *         * 7718 Added [effective date of final rule]. 7719 Added [effective date of final rule]. 7720 Added [effective date of final rule]. 7721 Added [effective date of final rule]. 7722 Added [effective date of final rule]. 7723 Added [effective date of final rule]. 7724 Added [effective date of final rule]. 7725 Added [effective date of final rule]. *         *         *         *         *         *         * 4. Amend appendix B to part 4 by: a. Revising the undesignated center heading immediately preceding diagnostic code 7700; b. Removing the entry for diagnostic code 7700; c. Revising the entries for diagnostic codes 7702, 7705 and 7709; and d. Adding entries for diagnostic codes 7712 and 7718 through 7725.

    The revisions and additions read as follows:

    Appendix B to Part 4—Numerical Index of Disabilities Diagnostic Code No. *         *         *         *         *         *         * THE HEMATOLOGIC AND LYMPHATIC SYSTEMS 7702 Agranulocytosis, acquired. *         *         *         *         *         *         * 7705 Immune thrombocytopenia. *         *         *         *         *         *         * 7709 Hodgkin's lymphoma. *         *         *         *         *         *         * 7712 Multiple myeloma. *         *         *         *         *         *         * 7718 Essential thrombocythemia and primary myelofibrosis. *         *         *         *         *         *         * 7719 Chronic myelogenous leukemia (CML) (chronic myeloid leukemia or chronic granulocytic leukemia). 7720 Iron deficiency anemia. 7721 Folic acid deficiency. 7722 Pernicious anemia and Vitamin B12 deficiency anemia. 7723 Acquired hemolytic anemia. 7724 Solitary plasmacytoma. 7725 Myelodysplastic syndromes. *         *         *         *         *         *         * 5. Amend appendix C to part 4 by: a. Revising the entries for Agranulocytosis and Anemia; c. Adding an entry for Hematologic in alphabetical order; d. Removing the entry for Hodgkin's disease and adding in its place an entry for Hodgkin's lymphoma; e. Revising the entry for Leukemia;

    The revisions and additions read as follows:

    Appendix C to Part 4—Alphabetical Index of Disabilities Diagnostic Code No. *         *         *         *         *         *         * Agranulocytosis, acquired 7702 *         *         *         *         *         *         * Anemia: Acquired hemolytic anemia 7723 Folic acid deficiency 7721 Iron deficiency anemia 7720 Pernicious anemia and Vitamin B12 deficiency anemia 7722 *         *         *         *         *         *         * Hematologic: Essential thrombocythemia and primary myelofibrosis 7718 Immune thrombocytopenia 7705 Multiple myeloma 7712 Myelodysplastic syndromes 7725 Solitary plasmacytoma 7724 *         *         *         *         *         *         * Hodgkin's lymphoma 7709 *         *         *         *         *         *         * Leukemia: Chronic myelogenous leukemia (CML) (chronic myeloid leukemia or chronic granulocytic leukemia) 7719 Leukemia 7703 *         *         *         *         *         *         *
    [FR Doc. 2015-19197 Filed 8-5-15; 8:45 am] BILLING CODE 8320-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 0, 2, 15, and 18 [ET Docket No. 15-170; RM-11673; FCC 15-92] Equipment Authorization and Electronic Labeling for Wireless Devices AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    This document proposes updates to the rules that govern the evaluation and approval of RF devices. The Commission last comprehensively reviewed its equipment authorization procedures more than fifteen years ago. The RF equipment ecosystem has significantly expanded in that time, and the manner in which today's RF equipment is now designed, manufactured, and marketed—as well as the sheer number of devices subject to authorization—warrant the proposed rule modifications.

    DATES:

    Comments must be filed on or before September 8, 2015, and reply comments must be filed on or before September 21, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Brian Butler, Office of Engineering and Technology, (202) 418-2702, email: [email protected], TTY (202) 418-2989.

    ADDRESSES:

    You may submit comments, identified by ET Docket No. 15-170; RM-11673, by any of the following methods:

    • Federal Communications Commission's Web site: http://apps.fcc.gov/ecfs//. Follow the instructions for submitting comments.

    • Mail: Brian Butler, Office of Engineering and Technology, Room 7-A267, 445 12th Street SW., Washington, DC 20554.

    • People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: [email protected] or phone: 202-418-0530 or TTY: 888-835-5322.

    Pursuant to sections 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).

    • Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.

    • Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

    • Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

    • All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

    • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

    • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.

    People with Disabilities: 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 & Governmental Affairs Bureau at 202-418-0530 (voice), 888-835-5322 (tty). For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission Notice of Proposed Rule Making, ET Docket No. 15-170, FCC 15-92, adopted July 17, 2015, and released July 21, 2015. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW., Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov.

    Synopsis

    1. The telecommunications sector depends on the variety and utility of radiofrequency (RF) devices. The purpose of this Notice of Proposed Rulemaking (NPRM) is to update the rules that govern the evaluation and approval of RF devices. The proposals build on actions the Commission recently took to modify its equipment authorization processing rules.

    2. The Commission proposed to combine two separate product approval programs—Declaration of Conformity and verification—into one product self-approval program. It also proposed to revise and clarify the rules that govern equipment certification, including those specifying when device changes necessitate a new FCC ID. These revisions would codify the current practices related to certification of modular transmitters for licensed services as well as the filing requirements for RF devices that incorporate multiple certified modular transmitters. They would also replace requirements that apply only to devices specifically classified as “software defined radios” (SDRs) with broadly applicable rules, based in part on the current Commission practices regarding software control of radio parameters, and would eliminate restrictions on hardware modifications of SDR devices.

    3. The Commission also proposed to codify procedures related to electronic labeling, streamline the rules for the measurement procedures that are used to demonstrate device compliance, and codify existing practices that protect the confidentiality of market-sensitive information. It proposed to eliminate unnecessary or duplicative rules and consolidate rules from various specific rule parts into the equipment authorization rules in part 2 of the Commission's rules and to discontinue the requirement that importers file information associated with FCC Form 740 with Customs and Border Protection for RF devices that are imported into the United States. Finally, the Commission sought comment on how to codify any filing or notification requirements that may be necessitated by the adoption of these proposals.

    4. The Commission found that its proposals would better align its equipment authorization procedures with the current state of equipment development, design, and manufacturing practices, thus promoting significant cost savings, reducing the burdens, and avoiding any unnecessary delay associated with the equipment authorization process. It invited commenters to discuss the costs and benefits of the rule changes proposed in the NPRM, and provide relevant supporting data, along with additional suggestions for enhancing the benefits or reducing the costs associated with the proposals.

    Background

    5. The Commission ensures compliance with its technical rules through the equipment authorization program for RF devices, which is codified in part 2 of the Commission's rules. Additionally, RF devices must comply with the Commission's technical and equipment authorization requirements before they can be imported to or marketed in the United States. The current RF equipment authorization procedures have evolved over the course of more than 40 years.

    6. The NPRM is informed by the evolution of the RF device ecosystem. The development of highly integrated circuitry, software-based designs and new production procedures has resulted in the use of substantially more complex RF transmitters in increasingly compact devices. The transmitters may operate individually or simultaneously using multiple transmission modes. Certain of the transmitters may operate under rules for the various licensed radio services, while others operate under the unlicensed device rules, all within a single product. Such devices may be too small to fit a permanently attached label that includes the compliance information, particularly in the case where a finished product includes multiple modular transmitters with each one required to display certain information such as an FCC ID.

    Unifying Self-Approval Procedures

    7. Currently, RF devices must be authorized in accordance with one of three procedures specified in subpart J of part 2-certification, Declaration of Conformity (DoC), and verification. DoC and verification are self-approval procedures in which the responsible party is required to take specific actions to ensure that its equipment complies with the Commission's rules. Unlike certification, these procedures do not require submittal of an application to the FCC or a Telecommunication Certification Body (TCB) and do not require the explicit grant of certification. Also, unlike a certified device, such equipment does not have an FCC ID, and is not listed in an FCC database. Under DoC, the responsible party must use a recognized accredited test laboratory when testing devices and include a compliance information statement with the product that identifies the product and a responsible party within the United States. Verification does not require the use of FCC-recognized test laboratories or the provision of a compliance information statement with the product.

    8. The number and variety of devices subject to DoC has grown significantly since the Commission last investigated the possibility of combining the DoC and verification procedures, and there are now comprehensive and widely used measurement procedures, significant testing expertise and capabilities for devices subject to DoC, and a greater comfort with the use of self-approval procedures. At the same time, the development of highly integrated circuits to implement functions which were previously performed by discrete components has resulted in lower typical RF emissions from such devices. The Commission found little benefit in maintaining two distinct procedures or in maintaining the rigor of the Declaration of Conformity procedure given these changes, and recognized the potential for reducing costs for manufacturers. It tentatively concluded that a single process would simplify the equipment authorization requirements and reduce confusion as to which process may apply to any given device, while continuing to adequately ensure compliance with the rules, and sought comment on the proposed rule revisions.

    9. The Commission proposed to incorporate certain elements of the existing Suppliers Declaration of Conformity (SDoC) process now used for Telephone Network Terminal Equipment into the new single process, which would apply to all equipment currently subject to the DoC and verification procedures. Under this proposal, the responsible party for equipment subject to rules other than part 68 would test equipment for compliance to specified standards or requirements and certify compliance to the public, by way of a statement supplied with the product, without securing an independent third-party review or approval of compliance. Unlike the existing part 68 SDoC rules, the Commission did not propose to require that the RF devices be registered in any database. The use of accredited testing facilities would not be required under our proposal. The NPRM sought comment on use of the specific term “Supplier's Declaration of Conformity” or “SDoC” for this new process.

    10. The Commission proposed to modify its rules to remove the ambiguous reference to “tak[ing] necessary steps” as a potential alternative to testing. It also proposed to consolidate the existing § 2.1073, “Responsibilities,” into an expanded § 2.909, “Responsible party;” and to consolidate existing § 2.1075, which addresses records retention, into a revised § 2.938 that would apply broadly to all equipment subject to our equipment authorization procedures. It proposed to otherwise retain the other DoC rules (i.e. those within §§ 2.1071 through 2.1077) and to apply them to the new approval procedure, and sought comment on proposed revisions to § 2.1077 that would require all equipment to include a compliance statement with the product literature that identifies for consumers who is responsible for the device's compliance with the Commission's technical regulations. The NPRM also asked whether the Commission should require the compliance statement to include additional information when equipment has been modified, but is nevertheless still subject to the self-approval process.

    11. The proposed rules would no longer require the use of a specific logo (§§ 15.19(b) and 18.209). In lieu of the logo requirement, the NPRM proposed to expand use of the statement of compliance with the part 15 rules that currently applies to devices subject to verification and certification (§ 15.19(a)) to include its use as part of the new procedure. It asked questions about the impact of such an approach, including reliance on the logo as a mark of device approval, use of the logo on a voluntary basis, and potential effect on the identification of unauthorized devices. Under parts 15 and 18 of the rules, a responsible party can opt for the certification process in lieu of required DoC for the approval of certain unintentional radiators (e.g., Class B personal computers and peripheral devices). The NPRM asked whether the Commission should allow devices that would be subject to the new SDoC requirements to optionally be certified.

    A. Updating Certification Procedures

    12. Certification differs from the other equipment authorization processes in that a grant of certification signifies that a Commission-qualified party other than the manufacturer or compliance testing laboratory has found that the equipment can be marketed in compliance with the technical and administrative requirements of the rule part(s) under which it will be operated. The procedure also requires submission of compliance information to a TCB as a part of the approval process, and the grant of certification and associated FCC ID is published on the Commission's public Web site. The Commission recently streamlined its certification procedures by modifying the rules associated with the TCB review of certification applications. The NPRM focuses on simplifying and clarifying the procedures related to the filing of certification applications.

    13. Traditionally, most certifications were granted for complete devices (i.e. devices that do not require additional equipment to be capable of functioning). Increasingly, devices such as personal computers, mobile wireless devices, and utility meters embody complex designs and incorporate numerous previously certified modular transmitters made by other manufacturers. Modular transmitters are not intended for standalone use, and can be designed to broadly comply with the applicable Commission rules, or be certified for operation and/or installation in a host device based on compliance with certain specific conditions. In some cases, the compliance of an end product that incorporates certified modular transmitters may be based upon the original testing of the certified modular transmitters. In other cases, particularly where the new host device or end product has significant characteristics different from the original host device, further testing may be needed to ensure compliance of the new device or product. Additionally, manufacturers are increasingly designing transmitters that use software to set the operating parameters. Such RF-controlling software can allow adjustment of individual parameters or enable a device to operate in different modes, and the manufacturer may provide software upgrades in the field to enable new capabilities. We need to be assured that such devices only operate consistent with their certification. Also, software may be designed to only be modified by the grantee of certification or may be designed to permit third parties to enable new functions or frequency bands. Such trends are testing the limits of the Commission's existing certification rules, and formed the basis for the NPRM's proposals.

    14. The Commission proposed to better accommodate these developments by amending its basic certification rule to acknowledge that certification may be obtained for three types of RF devices: a device capable of independent operation, (currently addressed by our certification rules), a modular transmitter that is designed for installation into a host device or as a peripheral to another device, and a host device consisting of one or more modular transmitters certified by other parties. Additionally, the Commission proposed to permit certification of a group of related devices that are certified under a single FCC ID. It also proposed to streamline certain application procedures to reduce the need to file new applications in many cases.

    a. Modular Transmitters

    15. The Commission proposed to broadly apply the current rule governing certification of modular transmitters that operate in part 15 unlicensed spectrum allocations to all RF devices regulated by the Commission. This change would acknowledge the increasing reliance on modular transmitters in RF devices designed for use in licensed radio services. The Commission's proposed part 2 rule provisions are consistent with this existing guidance in KDB Publication 996369. The proposed new rules would broadly apply to modular transmitters used in any RF device and would also maintain certain specific requirements that are currently only applicable to modular transmitters used in unlicensed devices.

    16. The Commission proposed to retain the concept of a “limited modular approval,” under which the manufacturer demonstrates in the certification application that the transmitter will comply with our rules only under specific circumstances. The Commission proposed to incorporate the part 15 rules and the guidance in KDB Publication 996369 for limited modular approvals into the revised part 2 rule. In light of the comprehensive RF exposure rules that apply to all devices, the Commission also proposed to no longer specify a unique RF exposure requirement for modular transmitters. It also proposed to eliminate the rule provision that permits authorization of modular transmitters that are “split” into the “radio front end” (the radio elements) and the “transmitter control element” (the hardware on which the software that controls the radio operation resides), based on its determination that such a device configuration has not been widely implemented. Additionally, the Commission proposed to permit certification of modular transmitters that consist of a single chip which has been tested to demonstrate compliance in a typical installation provided that the grantee includes detailed instructions for integration into other RF devices (i.e. host devices) to ensure that the ultimate configuration is consistent with the significant parameters for which it was tested. The Commission sought comment on all of these proposals.

    17. The Commission anticipated the possible development of devices that are nothing more than physical platforms (form factors) into which individual modular transmitter components can be inserted in an almost limitless variety of combinations. The Commission proposed that an applicant for certification of a modular device or a form factor that includes its own RF characteristics provide design guidelines, interface specifications, and authentication requirements that would guarantee that a module can operate on the form factor only with other modules whose collective RF emissions meet the rules' requirements. The Commission sought comment on whether this regulatory regime would enable the development of this kind of product while ensuring compliance with the rules—including those related to interference, RF exposure, and hearing aid compatibility.

    b. Devices With Software-Based Capabilities

    18. The SDR rules were intended to allow manufacturers to obtain approval for changes to the RF operating parameters of a radio resulting from software changes without the need to physically re-label a device with a new FCC ID number in the field. For a device to be certified as an SDR, in addition to demonstrating that the device complies with the applicable technical requirements, the applicant must also demonstrate that the device contains security features to prevent the loading of software that would allow the radio to operate in violation of the Commission's rules. The applicant generally has the option of whether to declare a device an SDR. Once the grantee of a device that is classified as an SDR makes any hardware modifications that require approval, the rules do not permit any subsequent software changes absent the filing of an application to obtain a new FCC ID.

    19. The Commission found that the existing SDR rules have proven to be insufficiently flexible to meet the growing use of software-defined control elements in RF devices, and proposed to simplify the rules by removing the SDR designation from grants of certification and incorporating any necessary requirements for software control of RF parameters and software security for all devices in the general certification rules and guidance.

    20. The proposals would modify the SDR-related requirements in part 2 of its rules based in part on the current Commission practices regarding software configuration control. To minimize the potential for unauthorized modification to the software that controls the RF parameters of the device, grantees would have to implement well-defined measures to ensure that certified equipment is not capable of operating with RF-controlling software for which it has not been approved. All manufacturers of devices that have software-based control of RF parameters would have to provide specific information about the software capabilities of their devices. The Commission proposed to require that an applicant for certification explicitly describe the RF device's capabilities for software configuration and upgradeability in the application for certification. This description would include all frequency bands, power levels, modulation types, or other modes of operation for which the device is designed to operate, including modes not enabled in the device as initially marketed. Also, an applicant for certification would have to specify which parties will be authorized to make software changes (e.g., the grantee, wireless service provider, other authorized parties) and the software controls that are provided to prevent unauthorized parties from enabling different modes of operation. This information would be included as part of the operational description information required in the application for certification. The Commission sought comment on these proposals.

    2. Changes to Certified Equipment

    21. Under the current rules, the grantee of an equipment authorization may market devices having different model/type numbers or trade names without additional authorization from the Commission, provided that the devices are “electrically identical” and the equipment bears an FCC ID validated by a grant of certification. The Commission identified the concept of electrically identical as not appropriate to modern radio designs, discussed how strict application of this concept can result in outcomes that unnecessarily burden manufacturers and constrain design flexibilities, and proposed revisions to the rules.

    22. Section 2.1043 categorizes three broad classes of permissive changes: Class I (changes are equipment modifications that do not degrade the characteristics associated with the initial grant of certification); Class II (changes that do degrade these performance characteristics); and Class III (modifications to devices originally specifically certified as SDRs). The NPRM noted that the proposal to eliminate an SDR-specific certification would eliminate the need to maintain the Class III category. For Class II changes (as well as Class III), the grantee can file an abbreviated application for certification under the same FCC ID. A change that falls outside the permissive change definitions requires a new FCC ID issued in conjunction with a new grant of certification based on a complete certification application.

    23. The current rules require a grantee to obtain a new approval with a different FCC ID and label its equipment accordingly when minor electrical component changes are made that have no effect on the overall functionality or compliance of the device. Because modern equipment is often designed using chips with a high level of integrated functions and with the capability to use software to control and/or add functions that modify the RF parameters reported at the time of certification, a device may add a completely new set of RF operating parameters from the already approved device and still be “electrically identical” under the rules and, thus, can be authorized under one FCC ID. The NPRM proposed to replace the “electrically identical” benchmark with a new standard that considers how the device differs from what was evaluated at the time of equipment certification and whether those differences could affect how the modified device complies with our rules. The Commission sought comment on two proposed broad categories of changes—those that do not require a new FCC ID and those that do. Under this regime, a manufacturer or other responsible party would evaluate the scope of changes and potentially test its modified device to determine the applicable change category.

    24. The Commission proposed that certain changes in layout, included components, operating software, or variations in overall electrical or mechanical constructions that do not substantially change the overall function of the device do not require a new FCC ID. Within this category, the Commission proposed to retain a distinction between changes that may be made without an additional filing and those changes that require an application for certification. The Commission proposed to continue to permit Class I permissive changes for those changes that do not degrade the device parameters normally reported in an equipment authorization application (including a decrease in the fundamental emissions that does not increase spurious emissions; an improved spurious emission performance; minor variations in the enclosure or components; and software changes that do not affect RF parameters). The Commission emphasized that such changes could not cause the fundamental emissions to increase, the spurious emissions to deteriorate, RF exposure to increase or HAC ratings to change. Based on the negligible risk that these types of minor changes would make the device noncompliant with the rules, the Commission proposed that the manufacturer or responsible party perform the modifications without notifying the Commission or a TCB. The Commission also asked if there were other circumstances that may be covered by the proposed Class I permissive change procedures.

    25. The Commission also proposed to modify its rules for Class II permissive changes that maintain the same FCC ID, but are, nonetheless, subject to filing and approval requirements. It proposed to permit changes that would increase the fundamental emissions or degrade spurious emissions or other parameters reported to the Commission from what was evaluated at the time of certification, as long as rules compliance is maintained and the overall layout, major frequency determining components and circuitry, or function of the device have not changed. Under this proposal, any modification to component layout must have the same device circuit design as that approved initially, and the replaced components for RF determining functions must have similar capabilities. The Commission envisioned that parties would make these types of changes to enable new capabilities such as new frequency bands or transmission formats mostly through software changes. Application of this standard would allow for component changes, including depopulating certain components like power amplifiers from the RF section of a device, without requiring a new FCC ID.

    26. When the grantee adds such capabilities through software changes it would be required to demonstrate the device controls that would prevent unauthorized software modifications by filing an application for certification, as a permissive change, under the same FCC ID. Such applications would need to clearly identify the changes made to the device and any revisions of the operational description associated with such changes, and demonstrate the modified device's compliance with the rules. If the grantee of a certified modular transmitter wants to use the transmitter in a manner for which it has not been approved, the grantee would have to also obtain a new grant of certification under the same FCC ID by filing an application with data that demonstrates compliance with all pertinent technical standards. The Commission also asked whether there other circumstances where changes would be allowed under the same FCC ID with the grant of a new certification.

    27. The NPRM proposed to permit a group of devices that are essentially similar, based upon the overall design of the devices, their functions, components and layout, to be authorized as a “family of products” under the same FCC ID without having to obtain distinct approval from a TCB for each device. The Commission proposed to permit a manufacturer to determine what constitutes a family of products. It asked about appropriate review and oversight mechanisms, and proposed that a manufacturer include in its initial filing or updated filing specific information about the variations in the products within a family, and identify any variations due to removal of some components. It asked whether it should also require the manufacturer to specify different model numbers for each variation of the product.

    28. The Commission concluded that certain device modifications (such as major changes in the design, layout or replacement of the components) would be substantial enough to require a new FCC ID that has been validated by a new grant of certification. The Commission proposed to revise § 2.1043 and remove the “electrically identical” definition from § 2.924 of the rules, and to add rules that address the modular transmitters, software-defined radio, and device change matters discussed. The Commission sought comment on these proposals.

    3. Responsible Parties for Certified Equipment

    29. The grantee of certification is responsible for the compliance of the certified equipment. When another party modifies a device through either hardware or software changes without the authority of the original grantee, or incorporates a certified device into another host device, that party becomes responsible for the modified device's compliance and must obtain a new FCC ID for its product. When a party other than the grantee of certification modifies a device under the authority of the original grantee, the party must obtain a new certification under either the original FCC ID with the original grantee's approval, or with a new FCC ID. The NPRM proposed to clarify the parties responsible for ensuring the compliance of devices in different scenarios, and to make sure that all devices requiring authorization have been properly tested for compliance and have a clearly-identified responsible party.

    a. End Products Incorporating Certified Modular Transmitters

    30. Modular transmitters are certified as compliant with the Commission's rules based upon specific data about the intended device configuration and use that are provided by the grantee in its certification application. Limitations on the grant may be required to ensure that a particular host device, modular transmitter, or combination of modular transmitters used in an end product complies with the rules. Complications can arise when a certified modular transmitter has not been certified for use with a specific host device or it is being used in a manner that was not evaluated at the time it was certified. The Commission proposed to continue to apply the general principle that a party that creates an end product is responsible for the compliance of the end product it creates, and to establish rules for two general scenarios involving end products that incorporate certified modular transmitters.

    31. The NPRM outlined the following proposal for when the installation of a certified modular transmitter installed would not require a certification application: The Commission proposed to codify existing guidance, under which the party installing a certified modular transmitter (or multiple certified transmitters) into a device must follow all instructions provided by the manufacturer(s) concerning the installation of the modular transmitter(s), the type and layout of the transmit antenna(s), and any other steps that must be taken to ensure the compliance of the end product. A party using a certified modular transmitter in the authorized configuration, must first confirm that the host device was manufactured in compliance with its own equipment authorization and it must also ensure that the end product is of a type that has been tested for use under the modular transmitter's certification(s). If the host device already contains transmitters which may not have been certified separately, or the party is installing multiple certified modular transmitters, then each transmitter must have been certified for use in such a combination and the modular transmitters may only be installed in an approved configuration. If a certified modular transmitter is installed in a host and if the modular transmitter is installed in compliance with all of the conditions tested and established as part of certified modular transmitter's grant of certification, then a new certification would not be required for the resulting end product. The Commission further proposed to clarify that the installer is responsible for ensuring that the host device complies with the rules and was properly authorized prior to the installation of the modular transmitter. It also asked whether there are other conditions which should not require a new grant of certification.

    32. The NPRM outlined the following proposal for governing the installation of a certified modular transmitter that would require additional certification application(s): Consistent with the Commission's current guidance, when the certified modular transmitter or the combination of certified modular transmitters would result in a configuration that is not consistent with any of the modular transmitters' certifications; or host device-specific tests are required, the installer would have to ensure that the end product is tested to demonstrate compliance with all applicable technical requirements. Such tests must be conducted with the installed configuration of certified modular transmitters including any host-based non-certified modular transmitters and the grant of certification of certified modular transmitter (or the host, when applicable) must be updated accordingly.

    33. The Commission proposed to codify two filing options to ensure that an end product is properly authorized in compliance with its rules. First, the installer could apply for a grant of certification for the complete end product (i.e. the host device and the certified transmitter(s)). Under this scenario, if the installing party has obtained the consent of the original certified modular transmitter grantee(s), then its application could reference the test data associated with the modular transmitter(s)' current certification, and provide supplemental test data as necessary. The original grantee of certification would continue to be responsible for compliance of its certified modular transmitter(s) and the end product manufacturer would be responsible for compliance of the additional capabilities of the certified modular transmitter(s) approved under the new FCC ID and for the end product.

    34. Under the second scenario, the grantee(s) of the certified modular transmitter(s) could modify the original grant(s) of certification to allow for such an integration into a host device under the original FCC ID(s). In this case, the original grantee of the certified modular transmitter would submit a new certification application with any supplemental data necessary to demonstrate that the previously certified modular transmitter or that certain combinations of modular transmitters would comply with the rules when appropriately installed in the specific host device. Depending on the nature and scope of the modifications, the original grantee would either retain the existing FCC ID for the certified modular transmitter and submit a new certification application pursuant to § 2.1043, or it would submit a new certification application pursuant to § 2.1033 and receive a new FCC ID.

    35. This NPRM also seeks comment on how to address certified modular transmitters that are sold directly to consumers to be integrated into host devices or independently combined. The NPRM noted that application of the proposed rules would make the consumer, acting as the integrator, the responsible party for these end products, and identified practical difficulties with such an approach. It proposed to designate the certified modular transmitter grantee or the host provider as responsible for the end products that are intended for assembly by consumers, and asked whether it should place limits or conditions on grants of certification when equipment may be directly sold to consumers for assembly or integration. The Commission suggested that such conditions could require detailed instructions to the end user for proper installation and use of the device, as well as the inclusion of certain electrical or mechanical locks to limit authorized operation. It asked if there were other conditions that would help ensure compliant operation in such cases.

    36. The NPRM addressed a specific scenario that may occur when a modular transmitter's authorized parameters may be modified via hardware or software changes, resulting in the filing of a permissive change application for certification for the modular transmitter. Under the Commission's proposal, when certifications have already been granted for end products that reference the original modular transmitter certification, then the existing certification for the end product would remain valid without further action. It sought comment on ways both manufacturers of certified end products and the FCC can better distinguish among the different versions of certified modular transmitters that may be incorporated into their products from that point forward, and asked if anything, short of requiring a permissive change application for certification of the end product, should be done to track whether authorized version(s) of certified modular transmitters have been incorporated in end products. The Commission also asked how it could ensure that the manufacturer of the end product is using the version of the certified modular transmitter which was approved with the original filing and whether it should continue to rely on the manufacturers of end products to make sure that their products continue to comply if there are variations in the certified modular transmitters.

    37. The Commission recognized that adoption of its proposals could require parties to perform additional compliance testing on the end product with one or a combination of modular transmitters installed. However, it tentatively concluded that such costs would be outweighed by the benefits of more clearly defining responsibilities prior to certification and marketing products, which, in turn would better ensure compliance with the Commission's rules. The Commission also sought comment on whether the proposal represented the least burdensome and most efficient way to meet these goals.

    b. Modification of Certified Equipment by Third Parties

    38. The Commission proposed to eliminate exceptions to the principle that certified devices could not be modified by third parties unless the third party receives its own certification. It proposed to revise § 2.909(d), which allows a new party that performs device modifications without the consent of the original grantee to become responsible for the compliance by labeling the device with a statement indicating it was modified, with the requirement that the party obtain a new grant of certification. It would have to specify a new FCC ID unless the consent of the original is obtained. The Commission asked whether the new procedure should also apply to parties that currently market devices with modified certification labels.

    39. The Commission proposed, for certified device operating under all rule parts, to require that any party making changes without the authorization of the original grantee of certification must obtain a new grant of certification and a new FCC ID. This would codify a uniform application process for instances where parties other than the original grantee wish to make changes to certified devices, and would remove the current distinctions in § 2.1043(d) and (f) of the rules.

    40. The Commission also proposed that an application from a third party that would result in a new FCC ID for a previously-approved device must include documentation substantiating that the original grantee has given permission for the new applicant to reference its original filing, and asked what documentation should be considered sufficient for this purpose. It proposed to require the submission of a new application without references to the original grant of certification when changes are made without the original grantee's approval.

    41. The Commission also proposed to permit third-party RF-controlling software modifications to previously certified devices under the same procedures that currently apply to grantee modifications of SDRs. The Commission also proposed to incorporate the technical requirements currently specified in the current SDR rule (which was proposed to be deleted) into its broadly applicable application processing rule.

    c. Repaired and Refurbished Devices

    42. The Commission proposed to formally adopt its current practice whereby a third party that repairs or refurbishes certified equipment to the device's original specification does not need to submit an application for certification if the equipment continues to operate as specified in its current grant. If a party does not return the equipment to its original specification, it would be considered to be a modification to a certified device. Third parties that repair or refurbish certified equipment to the device's original specification without the grantee's permission would have to file an application for certification or take other action to ensure that the Commission could readily identify the third party and confirm that the repair would not constitute an impermissible modification. The Commission further proposed that activities routinely performed by users or personnel at retail stores, such as battery pack replacement and hard drive and memory installation, would not be considered modifications of the device's grant of certification. It asked whether there were other types of refurbishing services (such as repair of broken controls) that would make its proposed requirements unduly onerous.

    d. Imported Equipment

    43. The Commission's rules currently prohibit the importation of devices that require an authorization, and for which no specific authorization has been obtained. Under the current rules, the importer of a certified device is not the party responsible for compliance with its rules. The Commission proposed to require that all applications for certification include the contact information of a party located in the United States that is responsible for compliance, and asked whether there were other options (including rules amendments) that would provide it with jurisdiction over the party responsible for the compliance of the equipment. The Commission also addressed the entry into U.S. markets of non-compliant devices when a foreign-based entity markets and ships a device directly to a United States customer without an intervening importer. It asked if it should consider the company that ships a non-compliant device into the U.S. as an importer under FCC rules, and questioned whether it should treat the United States customer who orders a non-compliant device as an importer in violation of its rules. The Commission proposed to enforce its importation rules against both the seller and the buyer.

    4. Information Included With Applications for Certification

    44. The Commission proposed to streamline § 2.1033 of the rules by combining the duplicative information requirements listed in the two sections of the rule that list the information that must be included with applications for certification and reorganizing the information required only in specific rule parts or for specific types of operation into a more logical structure. The Commission also proposed to modify its requirements for submission of device's operational description to include information about software used to control RF parameters and security to ensure unauthorized modification. It proposed to allow a third party that makes changes to certified devices or files applications that rely on pre-existing certifications to reference portions of the original grant of certification that are consistent with the device as integrated in its end product. The Commission further proposed to permit the new responsible parties to refer to test data submitted in the original grantee's filing, and sought comment on what additional portions of the original grant of certification the applicant would it be appropriate to incorporate by reference into the new application for certification. The Commission also asked if there are any portions of the application that the new responsible party always be required to submit, how to codify such requirements, and whether there are certain parts of the original application that the new responsible parties could refer to without the grantee's permission.

    45. The Commission proposed to stop allowing filing of applications for certification or acceptance of requests to update documentation in their application file when such actions are not required, except as allowed under our permissive change rules. The Commission recognized that there may be interest in continuing to allow this practice. It asked questions about how it would codify rule to support such filings, including how to define the scope of permitted modifications and the role of TCBs and Commission oversight under such provisions.

    5. Confidentiality of Certification Applications

    46. A TCB is required to upload all the information associated with a certification application to the Commission's Equipment Authorization System (EAS). When an equipment certification is granted in EAS, all application material is generally made available on the FCC Web site. Commencement of marketing can only begin after the grant of equipment certification and associated materials have been published on our Web site. Some of this information may be held confidential, under the Commission's current rules and procedures as described in the NPRM. The Commission proposed to modify these rules and procedures.

    47. Short-term confidentiality allows for the preparation for marketing of devices without disclosure of sensitive information to the public prior to actual sale, and is typically requested for information that will become discoverable once sales commence and the product and its related literature can be physically examined—e.g. external photos, internal photos, and user manuals. The Commission proposed to codify the short-term confidentiality procedure for the types of information described in the Commission's June 15, 2004 public notice, DA 04-1705, concerning short-term confidentiality requests. It would grant short-term confidentiality upon the applicant's request for 45 days or an earlier date if specified by the applicant, which may be extended with serial requests to a maximum of 180 days. The applicant would not need to provide a specific justification for its request. The Commission would immediately end the short-term confidentially period if the device is marketed to the public or otherwise publicized by the applicant or by an entity acting on the applicant's behalf prior to the expiration of this period. The Commission may nevertheless reveal the information at any time if a request for inspection is filed and granted under § 0.461 of the rules, our general provision that governs the release of information not routinely available for public inspection.

    48. The Commission proposed to require an applicant to identify the specific exhibits associated with an application for certification for which short-term confidentiality is requested, and not to grant confidentiality for information such as test reports and test set-up information that demonstrates that the product complies with the Commission's technical rules. However, it asked whether there would be benefits in making all application exhibits automatically considered part of a short-term confidentiality request, and asked whether 45 days with extensions up to 180 days total is the proper length of time to allow short-term confidentiality. Furthermore, the Commission also proposed to codify its current policy that the applicant must give notice to the TCB issuing the grant of certification prior to the device being marketed to the public or otherwise publicized so that the short-term confidentiality period may be immediately terminated. The Commission asked whether, as an alternative proposal, short-term confidentiality should automatically be granted for some or all exhibits without being specifically requested by the applicant, and, if so, which application exhibits should be given short-term confidentiality.

    49. Long-term confidentiality is intended to safeguard trade secrets, is intended for information that is not readily discoverable upon release of the device, and can last indefinitely. Long-term confidentiality is governed by §§ 0.457(d) and 0.459 of the rules, which provides for information to be held confidential by the Commission unless a request for inspection is filed and granted per § 0.461 of the rules, and requires a specific application seeking that material be given long-term confidential treatment. The Commission proposed to provide long-term confidentiality automatically (i.e. without specific justification), based on the fact that the vast majority of equipment authorization applications are accompanied by requests for long-term confidentiality for certain types of exhibits and that the requests are regularly granted, for the following types of exhibits: (1) Schematics, (2) block diagrams, (3) operational descriptions, and (4) parts list/tune-up information. It asked whether some of the exhibits should not be automatically be given long-term confidential treatment, and whether other exhibits beyond those listed be given long-term confidentiality. The Commission noted that its proposal is consistent with the process reform goal 5.42 in the FCC staff report in GN Docket 14-25.

    50. Finally, the Commission stated that it believes that its proposals for short- and long-term confidentiality would comply with its obligations under the Freedom of Information Act (FOIA) and the Trade Secrets Act, and sought comment on that conclusion.

    6. Timeframe for Requesting Review of Certification Grants

    51. The Commission proposed to adopt rules to specify that the “release date” for the grant of a certification is the date that the grant is published on the Commission's Web site. It stated that it believes that the date that the grant is published on its Web site is the appropriate public notice date as it is the date that the grant of the certification becomes known to the public and is the effective date of the certification grant. While this release date should be the date that will appear on any electronic or hard copies of the grant, the Commission proposed to specify the date of publication on our Web site to avoid any confusion should a mistake or other circumstance occur in which the dates do not match.

    52. The Commission stated that its proposals regarding confidentiality could affect the ability of parties to contest a certification grant, and asked whether the information that is always made immediately available provides notice to the public of the substance of a final Commission action that is adequate to determine whether and how to contest a grant. It asked whether, if it adopts the proposal to codify the current practice for granting short-term confidentiality, to require the applicant requesting confidentiality place a summary or a redacted version of the exhibits for which they are requesting short-term confidential treatment on our Web site at the time of the grant. The Commission also asked about issuance of a “provisional” certification grant for a device which otherwise is deemed to meet all the certification requirements that could be used for legal importation and distribution through the supply chain of devices prior to sale. When the device is sold to the public, the final certification grant would be made public, and that would constitute the public notice date. It asked if a different consideration should hold for determining the start of the thirty-day period in which the Commission can set aside an action on its own motion. Lastly, the Commission proposed that it could specify that a provisional grant constitutes a “grant” for purposes of its importation rules. It sought comment on all of these proposals, as well as any other options it should consider.

    B. Updating Procedures Applicable to Both Certification and Self-Approval 1. Labeling

    53. The Commission proposed to amend its regulations to comply with the provisions of the Enhance Labeling, Accessing, and Branding of Electronic Licenses Act (E-LABEL Act), which requires it to make regulations (or take other appropriate action) “to allow manufacturers of radiofrequency devices with display the option to use electronic labeling for the equipment in place of affixing physical labels to the equipment.” In addition, the Commission proposed to amend its labeling regulations to address devices that are too small to be legibly labeled with an FCC ID. The NPRM discussed rules that impose different labeling requirements on radio devices, including § 2.925, § 15.19, and other rule sections that require warning labels or other information to be attached to particular types of devices. It also discussed how the Commission's rules and guidance already permit electronic labeling in certain circumstances, including per KDB Publication 784748.

    54. Consistent with the E-LABEL Act, the Commission proposed to add a new rule to codify electronic labeling procedures. The rule would generally allow a radiofrequency device with an integrated electronic display to electronically display any labels required by our rules. This would include the FCC ID, as well as any warning statements or other information that our rules require to be placed on a physical label on the device. The rule would require that this electronic labeling information be secured in order to prevent modification by a third party. The NPRM discussed how the proposal is consistent with a 2012 petition for rulemaking filed by the Telecommunications Industry Association (TIA) asking the Commission to permit the use of electronic labels as a substitute for physical labels, and concluded that the proposed rules would effectively satisfy TIA's request and thus makes the rulemaking petition moot.

    55. The Commission noted that the E-LABEL Act applies to devices that have “the capability to digitally display required labeling and regulatory information,” and proposed that if a device cannot display the labeling and regulatory information to the intended recipient in a manner that effects its purpose, it would not be considered to be capable of “digitally displaying the required labeling and regulatory information” as required by E-LABEL Act. The Commission proposed that the user be provided with prominent instructions on how to access the required labeling and regulatory information, in either the packaging material or another easily accessible format, at the time of purchase, and that these instructions be available on the product-related Web site, if one exists. The Commission also proposed that accessing the labeling and regulatory information not require any special codes or permissions. Furthermore, the Commission proposed that accessing the labeling and regulatory information should require no more than three steps. The Commission's proposal would not allow other forms of electronic labeling such as Radio Frequency Identification (RFID) tags or Quick Response (QR) codes to substitute for the on-screen information display, or otherwise permit displays that require the use of special accessories, supplemental software, or similar plug-ins. When the labeling information is electronically displayed, it must be clearly legible without the aid of magnification. The Commission also proposed to continue to require that devices that rely on a wireless or remote connection and have no display have a physical label, and stated that it believes this conclusion is consistent with the explicit terms of the E-LABEL Act which specifically refers to devices with an electronic display. It asked whether, alternatively, it should allow such devices to use an electronic label that is accessible via the connected smartphone, web interface, or other network connection, and if so, what additional requirements on how the labeling requirement is implemented would be needed. The Commission asked whether there are any additional requirements that it should include in the rule to make the labeling and regulatory information more accessible

    56. To provide information prior to purchase, to avoid a hazard or when devices are imported, the Commission proposed that devices displaying labeling and regulatory information electronically must also place this information either on the product packaging or on a (removable) physical label placed on the device at the time of importation, marketing, and sales. The Commission tentatively concluded that its proposal would comply with the E-LABEL Act because devices with electronic displays are not usually capable of electronically providing this information in an effective manner when the devices are typically inside packaging and uncharged. The devices therefore do not have “the capability to digitally display required labeling and regulatory information” in the context for which the requirement exists. The Commission sought comment on this proposal.

    57. The Commission stated that its proposed rules were not intended to change existing requirements to place warning statements or other information on device packaging or in user manuals or make information available at the point of sale, and tentatively concluded that such requirements are outside the scope of the E-LABEL Act. The Commission did not propose to require parties to display any information that is not already required by the rules as part of an electronic label, nor to eliminate the ability of manufacturers to continue to physically label devices if they wish to do so. It also sought comment on the costs and benefits of its proposals.

    58. The NPRM discussed other labeling rules that ensure that important safety-of-life information or warnings about illegal use of equipment is made prominently available to users of equipment, such as those contained in §§ 15.121, 87.147, and 95.1402 of rules. The Commission asked whether provision of these types of warning statements using an electronic display would provide the information to the intended recipient in an “effective” manner when safety or illegal activity is at issue, or would the size and/or makeup of displays on these devices make visual communication of these warnings ineffective. It asked whether continuing to require physical labels for these warnings would be consistent with the E-LABEL Act and, if so, which physical labeling requirements the Commission should maintain.

    59. The Commission also addressed how the FCC ID may be communicated for small devices. The Commission current rules requires that the FCC ID on the label of a certified device be large enough to be readily legible, but does not specify what the device manufacturer should do if the device is too small to display a legible label. It proposed to codify the guidance in KDB Publication 784748, which states that the FCC ID may be placed in the device user manual if the device is too small for the FCC ID to be readable (smaller than 4-6 point font size).

    60. The Commission proposed to eliminate the requirement for part 15 devices to be labeled with the FCC logo, and observed that doing so would make a pending request by the Information Technology Industry Council (ITI) moot. The Commission stated that it intends for its labeling rules to match the equipment authorization rules that it ultimately adopts, and invited commenters, in discussing other elements of its proposals, to identify the implications for device labeling and propose any further rule modifications that may be necessary.

    61. The Commission proposed to move the existing rule concerning labeling of modular transmitters from part 15 to part 2 of its rules. It also sought comment on how its proposed modifications to the rules governing modular transmitters would affect our labeling requirements and on alternative approaches that would still accomplish the goal of providing sufficient identification of a certified modular transmitter. For example, the NPRM asked if a modified label should be allowed to be placed on the host device that reads “contains FCC ID xxxyyy changed from FCC ID aaabbb.”

    2. Measurement Procedures

    62. The Commission proposed to modify § 2.947(a)(3) to specifically reference the advisory information available in its online KDB publications. The Commission noted that devices increasingly have to demonstrate compliance with service-specific procedures described in other parts of our rules, stated that it intends to consolidate references to measurement procedures into part 2, to the extent practicable, and asked if, until this consolidation can occur, it should further modify § 2.947 to state that other rule parts may specify additional measurement procedures.

    63. The Commission made further proposals related to the measurement procedures for RF devices operating under the part 15 rules described in §§ 15.31, 15.32, 15.33, and 15.35; and the part 18 rules as described in § 18.311, with § 18.309. The Commission proposed to revise these sections in a manner that references procedures that will be published by OET as KDB Publications and to provide clarifying text. The Commission asked about further consolidating these rules to simply cross-reference § 2.947.

    64. The Commission also sought comment on whether the measurement procedures specified in § 15.31(a)(3) and (4) (referencing ANSI C63.4-2014 and ANSI C63.10-2013) are sufficient to address compliance testing for devices subject to the part 15 requirements, such that it could remove specific measurement procedures in § 15.31-15.35. It proposed to modify § 15.35 to clarify the measurement detector functions and bandwidth requirements and to replace an old reference to CISPR Publication 16 in § 15.35 with an updated reference to the measurement instrumentation procedures in ANSI C63.4-2014. It proposed to eliminate the note associated with § 15.35(a) that affords specific treatment of certain pulse modulated devices and instead rely on the emission measuring instrumentation specifications in ANSI C63.4-2014. It proposed to introduce measurement procedures for the certification of composite systems in the part 2 rules that are similar to those contained in §§ 15.31(h) and 15.31(k), while retaining certain specific requirements in the part 15 rules. The Commission asked whether there are alternatives to its proposed rules for measurement procedures that would better promote clarity and accommodate future technological developments and sought comment on the relative costs and benefits its proposals and any alternatives.

    65. The Commission noted the ongoing development of a new standard, ANSI C63.26, by ANSI-ASC C63, and asked whether references to the applicable measurement procedures in ANSI C63.26 could potentially replace measurement procedures in part 2 for RF power output, modulation characteristics, occupied bandwidth, spurious emissions at antenna terminals, field strength of spurious radiation, frequency stability, and frequency spectrum. It asked if references to part 2 (and, by extension, ANSI C63.26) could replace the specific measurement procedures and details that are presently contained in many of the individual service rules and whether the measurement procedures in part 2 would need to be changed in order to clarify these procedures. It asked parties to take the ANSI C63.26 standards development into account when drafting their comments and asked if there are any other actions that will help it reference the best and most up-to-date standards for making measurements on equipment used in the Commission's licensed radio services.

    3. Rule Consolidation and Modification

    66. The Commission proposed to delete § 2.1043(g) through (l) because these provisions address changes to previously approved broadcast equipment that are no longer necessary because such equipment is now subject to verification. It proposed to add a new paragraph to § 2.1043 advising that parties may modify previously-approved broadcast transmitters, provided the modified transmitter complies with our authorization procedures or is otherwise shown to comply with the part 73 rules. It proposed to state that a previously approved broadcast transmitter that was later modified must either be labeled with a statement indicating that it was modified after approval, or the original FCC ID number must be permanently covered or removed. The Commission proposed to retain these provisions in § 2.1043(e) (re-designated as § 2.1043(h)) because they provide a means for non-manufacturer amateur radio users to modify equipment that had previously been certified or type accepted, and sought comment on whether the rule should be amended for clarity or consistency between parts 2 and 97 of the rules.

    67. The Commission proposed to delete § 2.813 of the rules, because there are no provisions in part 27 comparable to the former part 74 rules that this rule was written to govern. It also proposed to delete § 15.239(d) of the rules, which permits an educational institution to conduct experimentation in the 88-108 MHz band using a custom-built telemetry intentional radiator after submission of an operational description. It observed that the Commission's general experimental licensing rules provide an effective means for such experimentation.

    C. Importation Rules

    68. Subpart K of part 2 of the rules sets out the conditions under which RF devices that are capable of causing harmful interference to radio communications may be imported into the United States. The Commission identified several proposals to lessen or eliminate the filing burdens associated with the importation rules, as described.

    1. Importation Declaration

    69. The Commission proposed to eliminate §§ 2.1205 and 2.1203(b) to remove filing requirements that are now associated with FCC Form 740, and to discontinue that form. Section 2.1203 of the Commission's rules states that no RF device may be imported unless the importer or ultimate consignee (or their designated customs broker) declares that the device meets the conditions of entry set forth in our importation rules subpart. Section 2.1205 provides two ways to make this declaration: An electronic FCC declaration submitted to CBP in addition to the electronic entry summary required by CBP; and FCC Form 740, attached to the CBP-required entry papers. The NPRM discussed how compliance with the importation rules is implicitly addressed by the information already required by CBP, and how the Commission believes that by modifying its importation rules and procedures in this manner it will be able to reduce substantial administrative burdens while retaining sufficient enforcement tools to ensure that parties continue to comply with the Commission's equipment authorization and importation requirements. It sought comment on these proposals, as well as on additional rule modifications that would support its goals.

    70. The Commission asked commenters to consider its proposals in light of the potential use of provisional grants. It asked whether there are there additional steps, such as self-certification or required recordkeeping that would be necessary to ensure that parties continue to comply with the Commission's overall part 2 importation, and how such considerations would be affected if the Commission were to require the identification of a domestic responsible party.

    2. Modification of Customs Bonded Warehouse Requirement

    71. The Commission proposed to remove the explicit bonded warehouse requirement in § 2.1201(c). It discussed how the issuance of provisional grants of certification (as discussed above) could reduce or eliminate the need for using bonded warehouses and, if so, whether it would effectively meet manufacturers' importation and marketing needs. The Commission asked whether it should retain the option to use a bonded warehouse for any imported devices which are unauthorized and that have not received such provisional approval; and, if not, what it should do to ensure that unauthorized devices are not widely distributed.

    3. Increasing the Number of Trade Show Devices

    72. The Commission proposed to modify § 2.1204(a)(4) by increasing the number of devices that can be imported for demonstration purposes at a trade show from 200 to 400 for devices that are used in licensed services and from 10 to 400 for other products, thus applying a single limit to all types of devices for trade show demonstration purposes. It stated that it believes the current limit is insufficient to accommodate the needs of modern trade shows and conventions, and that the increased limit will reduce the administrative burden on both manufacturers and importers. It sought comment on the proposal, and the relative costs and benefits.

    4. Excluded Devices

    73. The Commission proposed to remove the list of battery-powered unintentional radiators that are exempt from complying with the importation conditions contained in § 2.1202(a), based on its belief that the examples are outdated and that such devices are now significantly more sophisticated and often contain circuitry that increases the risk of harmful interference.

    5. Devices Imported for Personal Use

    74. The Commission proposed to expand its exception on devices imported for personal use by modifying its existing personal use exception for up to three devices to encompass devices that use both licensed and unlicensed frequencies. It asked if there are targeted exceptions within the Commission's existing rules that should also be updated or removed. It asked whether the three-device limit is still appropriate, and if a different limit would provide adequate protection against harmful interference without unduly restricting individuals' personal use importation.

    D. Updating and Modifying Rule Sections

    75. The Commission proposed to comprehensively reorganize and simplify part 2, Subpart J of the rules as shown in the proposed rule section, and to make modifications to other related rule sections, to account for the proposals in the NPRM. It recognized that there are many additional references to the equipment authorization procedures throughout the Commission's rules, and proposed to make the necessary conforming revisions, such as updating specific rule section cross-references, modifying outdated terminology. The Commission listed in a separate appendix of the NPRM, these rule sections by number, and invited commenters to identify any additional rules that would require such revisions.

    E. Transition Period

    76. The Commission proposed to make any rule changes adopted as a result of the NPRM effective immediately upon their publication in the Federal Register, but to permit manufacturers to continue to self-approve products using the existing DoC or verification procedures for up to one year from the effective date of the rules if they so choose.

    Incorporation by Reference

    77. The OFR recently revised the regulations to require that agencies must discuss in the preamble of the rule ways that the materials the agency incorporates by reference are reasonably available to interested persons and how interested parties can obtain the materials. In addition, the preamble of the rule must summarize the material. 1 CFR 51.5(b). In accordance with OFR's requirements, the discussion in this section summarizes ANSI standards. Copies of the standards are also available for purchase from these organizations: The Institute of Electrical and Electronic Engineers (IEEE), 3916 Ranchero Drive, Ann Arbor, MI 48108, 1-800-699-9277, http://www.techstreet.com/ieee; and the American National Standards Institute (ANSI), 25 West 43rd Street, 4th Floor, New York, NY 10036, (212) 642-4900, http://webstore.ansi.org/ansidocstore.

    78. (1) ANSI C63.4-2014: “American National Standard for Methods of Measurement of Radio-Noise Emissions from Low-Voltage Electrical and Electronic Equipment in the Range of 9 kHz to 40 GHz,” ANSI approved June 13, 2014, Section 4 IBR proposed for § 15.35(a).

    79. This standard, ANSI C63.4-2014, contains methods, instrumentation, and facilities for measurement of radiofrequency (RF) signals and noise emitted from electrical and electronic devices in the frequency range of 9 kHz to 40 GHz, as usable, for example, for compliance testing to U.S. (47 CFR part 15) and Industry Canada (ICES-003) regulatory requirements.

    80. (2) ANSI C63.10-2013, “American National Standard of Procedures for Compliance Testing of Unlicensed Wireless Devices,” ANSI approved June 27, 2013, Section 5.7 IBR proposed for § 15.31(m) and Section 5.5 IBR proposed for § 15.33(a).

    81. This standard, ANSI C63.10-2013, contains standard methods and instrumentation and test facilities requirements for measurement of radio frequency (RF) signals and noise emitted from unlicensed wireless devices (also called unlicensed transmitters, intentional radiators, and license-exempt transmitters) operating in the frequency range 9 kHz to 231 GHz.

    Section 15.38 of the Commission's rules, 47 CFR 15.38, would likewise be updated to reflect these incorporations by reference.

    Procedural Matters F. Ex Parte Rules—Permit-But-Disclose

    82. The proceeding this NPRM initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. 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 § 1.1206(b). In proceedings governed by § 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.

    G. Paperwork Reduction Act

    83. This document contains proposed modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

    Initial Regulatory Flexibility Analysis

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

    1See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996).

    2See 5 U.S.C. 603(a).

    A. Need for, and Objectives of, the Proposed Rules

    85. The purpose of this Notice of Proposed Rulemaking (NPRM) is to update the rules that govern the evaluation and approval of radiofrequency (RF) devices. The Commission ensures compliance with its technical rules through the equipment authorization program for RF devices; the technical rules are the means by which the Commission carries out its responsibilities under section 302 of the Communications Act of 1934, as amended, which permits the Commission to make reasonable regulations governing the interference potential of devices that emit RF energy and can cause harmful interference to radio communications. By updating our rules, we can continue to ensure that hundreds of millions of radio transmitters, consumer products, and other electronic devices will continue to share the airwaves successfully. Our objective is to enable innovation and growth in the development and use of RF devices by providing a clear path for products to demonstrate compliance with the FCC rules so that they may be brought to the market expeditiously.

    86. The NPRM addressed the types of authorization procedures used to approve equipment, the effect of changes to authorized equipment, and the responsibilities of parties for complying with our rules. It also addresses the importation of radio devices. The Commission last comprehensively reviewed its equipment authorization procedures more than fifteen years ago.3 The changes in the way today's equipment is designed, manufactured, and marketed—as well as the sheer number of such devices that need to be authorized—warrant modifications to the rules that specify the equipment subject to our equipment authorization procedures and responsibilities of the various stakeholders. Our proposals complement the recent actions taken by the Commission to modify the equipment authorization rules that address the obligations of Telecommunication Certification Bodies (TCBs) that certify RF equipment and the laboratories that test equipment subject to the certification process.4

    3See Amendment of Parts 2, 15, 18 and Other Parts of the Commission's Rules to Simplify and Streamline the Equipment Authorization Process for Radio Frequency Equipment, ET Docket No. 97-94, Report and Order ( Equipment Authorization Procedures Order), 13 FCC Rcd 11415 (1998).

    4See Amendment of Parts 0, 1, 2, and 15 of the Commission's Rules regarding Authorization of Radiofrequency Equipment and Amendment of Part 68 regarding Approval of Terminal Equipment by Telecommunications Certification Bodies, Report and Order (TCB Order), ET Docket No. 13-44, FCC 14-208, 29 FCC Rcd 16335 (2014). The TCB Order largely addressed the processes by which certification applications are to be evaluated.

    Legal Basis

    87. The proposed action is taken pursuant to sections 1, 4(i), 7(a), 301, 303(f), 303(g), 303(r), 307(e), 332, and 622 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 157(a), 301, 303(f), 303(g), 303(r), 307(e), 332, and 622; and §§ 0.31(g), 0.31(i), and 0.31(j) of the Commission's rules, 47 CFR 0.31(g), 0.31(i), and 0.31(j).

    C. Description and Estimate of the Number of Small Entities To Which the Proposed Rules Will Apply

    88. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted.5 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 6 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.7 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).8 The Commission has not developed a definition of small entities applicable to RF Equipment manufacturers. The most analogous definition of small entity is that which is contained in the rules applicable to manufacturers of “Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing.” This NPRM addresses the repair of devices that are subject to the Commission's equipment authorization rules. For this, we also include small entities associated with an additional category, “Communication Equipment Repair and Maintenance,” in our analysis.

    5See 5 U.S.C. 603(b)(3).

    6See 5 U.S.C. 601(6).

    7See 5 U.S.C. 601(3) (incorporating by reference the definition of “small-business concern” in the Small Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.”

    8 15 U.S.C. 632.

    89. Radio and Television and Wireless Communications Equipment Manufacturing. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” 9 The SBA has developed a small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing, which is: All such firms having 750 or fewer employees. According to Census Bureau data for 2007, there were a total of 939 establishments in this category that operated for part or all of the entire year. Of this total, 912 had less than 500 employees and 17 had more than 1000 employees.10 Thus, under that size standard, the majority of firms can be considered small.

    9 The NAICS Code for this service 334220. See 13 CFR 121.201. See also http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=300&-ds_name=EC0731SG2&-_lang=en.

    10See http://factfinder.census.gov/servlet/IBQTable?_bm=y&-geo_id=&-fds_name=EC0700A1&-_skip=4500&-ds_name=EC0731SG3&-_lang=en.

    90. Communication Equipment Repair and Maintenance. This industry comprises establishments primarily engaged in repairing and maintaining communications without retailing new communication equipment, such as telephones, fax machines, communications transmission equipment, and two-way radios.11 The SBA has developed a size standard for this industry which is that any firm whose annual receipts are $11 million or less is defined as a small business.12 Census Bureau data for 2007 indicated that in this industry, 1,415 firms operated for the entire year. Of these firms, 1,273 operated with annual receipts of less than $10 million dollars. Based on this date, the Commission concludes that the majority of firms operating in this industry is small.13

    11http://wwww.census.gov/cgi-bin/sssd/naics/naicsrch.

    12 13 CFR 121.201, NAICS Code 811213.

    13http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_81SSSZ4&prodType=table.

    D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities

    91. Currently, the Commission ensures that RF equipment complies with its technical requirements by specifying that devices must be authorized in accordance with one of three procedures specified in subpart J of part 2 of the rules—certification, Declaration of Conformity (DoC), and verification. The NPRM proposes to update the certification process and replace the DoC and verification processes with a single process.

    92. Certification is typically applied to RF equipment employing new technology for which the testing methodology is relatively complex or not well defined, or that otherwise is considered to have the highest risk of interference.14 TCBs approve equipment under the certification procedure based on review of an application that provides test reports and all of the other information specified in the Commission's rules. Certified devices are uniquely identified by an FCC Identifier (FCC ID), which must be included on the device label.15 All certified equipment is listed in a Commission database that includes the application for certification, test report and other material.16

    14See 47 CFR 2.907.

    15See 47 CFR 2.925 and 2.926. The FCC ID consists of two elements—a grantee code and an equipment product code.

    16 The Commission's Equipment Authorization System (EAS) can be accessed at https://apps.fcc.gov/oetcf/eas/reports/GenericSearch.cfm.

    93. DoC and verification are self-approval procedures in which the responsible party is required to take specific actions to ensure that its equipment complies with our rules. DoC and verification procedures are permitted for certain types RF devices that operate under part 15 or part 18 of our rules. DoC requires the responsible party, in addition to taking the necessary steps to ensure that the equipment complies with the appropriate technical standards, to use a recognized accredited test laboratory when testing devices.17 The responsible party also must include a compliance information statement with the product that identifies the product and a responsible party within the United States.18 Under verification, the responsible party must also take the necessary steps to ensure that the equipment complies with the appropriate technical standards, but there are no requirements to use recognized test laboratories and supply a compliance information statement with the product.19 Unlike certification, the DoC and verification procedures do not require submittal of an application to the FCC or a TCB, the explicit grant of approval, or submission of a test device (unless specifically requested by the Commission). Also, unlike certified devices, this equipment does not have an FCC ID, and is not listed in an FCC database.

    17See 47 CFR 2.906. The party responsible for compliance is defined in 47 CFR 2.909.

    18See 47 CFR 2.1077, 15.19(a)(3), and 18.209(b). Only parts 15 and 18 equipment is currently covered by DoC. For example, part 15 devices subject to the DoC rules must be labeled with the following statement: “This device complies with part 15 of the FCC Rules. Operation is subject to the following two conditions: (1) This device may not cause harmful interference, and (2) this device must accept any interference received, including interference that may cause undesired operation.” See also 47 CFR 2.1075 and 2.946 (describing circumstances in which the responsible party must submit to the Commission records of the original design drawings and specifications, the procedures used for production inspection and testing, a report of RF emission measurements, the compliance information statement, and a sample of the device).

    19See 47 CFR 2.909(b), 2.946, 2.953, 2.955, and 2.956.

    94. The Commission notes that the current state of RF equipment production makes the existing distinctions between the two self-approval processes less meaningful, and, thus, the NPRM proposes to combine elements of DoC and verification into a single self-approval process for equipment that has a strong record of compliance and for which there is minimal risk of causing harmful interference (tentatively identified as a “Supplier's Declaration of Compliance” or “SDoC”). Our objective is to recognize our increased comfort with self-approval procedures by streamlining the procedures and eliminating those elements that serve to increase the costs of complying with our rules and that provide benefits that are of only marginal utility.

    95. The Commission believes that our actions will minimize the compliance costs borne by small entities by, for example, eliminating the mandate to use accredited laboratories that is currently associated with the DoC rules, removing the requirement to display the FCC logo on the equipment identification label, and, potentially, allowing devices that are currently subject to certification to be authorized under the new SDoC procedures. The Commission recognizes that manufacturers of devices currently subject to verification may be subject to some minimal additional requirements under SDoC, most notably that the manufacturers include a written compliance statement with the literature furnished to the user that serves to identify the party responsible for the device's compliance with the Commission's regulations. The Commission nevertheless believes that, on the whole, the use the SDoC process will also make it easier for manufacturers to comply with recordkeeping and reporting requirements because we will for the first time adopt a single, streamlined self-approval process that is easy to understand, simple to apply, and that is better aligned with existing international processes. We anticipate minimal costs associated with modifying existing processes and procedures to comply with the proposed rule, and that any such costs will be quickly recouped by the savings realized under use of the new SDoC procedures.

    96. The NPRM also proposes amendments to the certification rules that are intended to provide RF equipment manufacturers with a clear understanding of the application requirements and their compliance responsibilities for a variety of design scenarios. Among other things, we propose to permit certification of modular transmitters for licensed services, and to clearly specify the rules for integration of certified modular transmitters and for when the host devices may be subject to certification. We propose to clearly codify requirements related to an RF device's capabilities for software configuration and upgradeability in the application for certification. We further propose that an applicant for certification must specify which parties will be authorized to make software changes (e.g., the grantee, wireless service provider, other authorized parties) and the software controls that are provided to prevent unauthorized parties from enabling different modes of operation. We do not anticipate that these changes will introduce new costs and, in many cases, will allow device manufacturers greater flexibility in how they comply with our rules and more certainty that their applications will not be returned or rejected.

    97. We are also proposing to streamline certain application procedures which we believe will reduce the need to file new applications in many cases. In this regard, the NPRM includes proposals to revise and clarify the rules that govern equipment certification, including specifying when device changes necessitate a new FCC ID. Such actions will serve to reduce or eliminate existing compliance requirements for device manufacturers. Additionally, we are making proposals that address confidentiality, public notice of grants, the RF device importation rules, and the measurement procedures that are used to demonstrate device compliance. These proposals are designed to reduce overall compliance burdens by better aligning the production, importation and device marketing interests and practices of device manufacturers with our equipment authorization procedures and fundamental interest in ensuring that hundreds of millions of radio transmitters, consumer products, and other electronic devices continue to share the airwaves successfully.

    98. Finally, recently adopted legislation (the E-LABEL Act) requires the Commission to, within nine months after the law's passing, “promulgate regulations or take other appropriate action, as necessary, to allow manufacturers of radiofrequency devices with display the option to use electronic labeling for the equipment in place of affixing physical labels to the equipment.” 20 We propose to amend our regulations to comply with the provisions of this legislation. In addition, we propose to amend our labeling regulations to address devices that are too small to be legibly labeled with an FCC ID.

    20 Enhance Labeling, Accessing, and Branding of Electronic Licenses Act of 2014, Public Law 113-197 (Nov. 26, 2014).

    F. Steps Taken To Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered

    99. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.” 21

    21 5 U.S.C. 603(c)(1) through (c)(4).

    100. As discussed, the overall approach we have taken is to propose to clarify, consolidate, and simplify our equipment authorization of compliance and reporting requirements where possible. Such proposals include, but are not limited to, eliminating use of accredited labs under the SDoC procedure, streamlining importation requirements by, for example, eliminating the use of FCC Form 740, and providing for confidentiality in some cases without the need to file specific confidentiality requests. Given our interest in evaluating the interference potential of devices that emit RF energy and can cause harmful interference to radio communications, we believe that these steps should apply to all device manufacturers, including small entities. In crafting this regulatory relief, we have not identified any additional steps that we could take with respect to small entities that could not also be applied to all device manufacturers.

    101. The NPRM also recognizes that there may be existing processes that we have proposed to streamline or eliminate that certain device manufacturers may still find beneficial. These include, for example, filing for certification of devices that may be approved under the SDoC procedures, and placing the FCC logo on devices that would no longer require such marking. Although one approach would be to retain any requirement that has been identified as having value, we have tentatively rejected that approach. Instead, we propose to allow but not require parties to engage in such practices if they find them useful. By doing so, we will not unnecessarily burden small entities that no longer wish to retain such practices.

    102. As directed by the E-LABEL Act, we proposed to add a new section to our rules to codify electronic labeling procedures.22 The new rule will generally allow a radiofrequency device with an integrated electronic display to electronically display any labels required by our rules. This will include the FCC ID required by our certification rules as well as any warning statements or other information that our rules require to be placed on a physical label on the device. The rule will require that this electronic labeling information is secured in order to prevent modification by a third-party. While the E-LABEL Act is not directed at small entities, we recognize that the use of electronic labeling can potentially decrease costs for all device manufacturers because it will provide a means by which manufacturers will no longer have to affix permanent labels to devices. We nevertheless recognize that small entities may not wish to incur the costs associated with changing their processes to produce electronic label displays. As such, we are not proposing to require parties to display any information as part of an electronic label not already required by our rules, nor are we proposing to eliminate the ability of manufacturers to continue to physically label devices if they wish to do so.

    22 See proposed amendment of 47 CFR 2.935 in proposed rules.

    F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules

    103. None.

    Ordering Clauses

    104. Pursuant to sections 1, 4(i), 7(a), 301, 303(f), 303(g), 303(r), 307(e), 332, and 622 of the Communications Act of 1934, as amended, 47 U.S.C. Sections 151, 154(i), 157(a), 301, 303(f), 303(g), 303(r), 307(e), 332, and 622, and §§ 0.31(g), 0.31(i), and 0.31(j) of the Commission's rules, 47 CFR 0.31(g), 0.31(i), 0.31(j), this Notice of Proposed Rulemaking IS ADOPTED.

    105. The Petition for Rulemaking filed by the Telecommunications Industry Association (RM-11673) on August 6, 2012 is DISMISSED.

    106. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis to the Chief Counsel for Advocacy of the Small Business Administration.

    List of Subjects 47 CFR Part 0

    Organization and functions (Government agencies), Reporting and recordkeeping requirements.

    47 CFR Part 2

    Communications equipment, Reporting and recordkeeping requirements.

    47 CFR Part 15

    Communications equipment, Incorporation by reference, Radio, Reporting and recordkeeping requirements.

    47 CFR Part 18

    Radio, Reporting and recordkeeping requirements, Scientific equipment.

    Federal Communications Commission. Gloria J. Miles, Federal Register Liaison Officer. Proposed Rules

    For the reasons set forth in the preamble, the Federal Communications Commission proposes to amend parts 0, 1, 2, 15 and 18 of title 47 of the Code of Federal Regulations as follows:

    PART 0—COMMISSION ORGANIZATION 1. The authority citation for part 0 continues to read as follows: Authority:

    Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155, 225, unless otherwise noted.

    2. Section 0.457 is amended by revising paragraph (d)(1)(ii) to read as follows:
    § 0.457 Records not routinely available for public inspection.

    (d) * * *

    (1) * * *

    (ii) Applications for equipment authorizations and materials relating to such applications are not routinely available for public inspection prior to the effective date of the authorization. The effective date of the authorization will, upon request, be deferred to a date no earlier than that specified by the applicant.

    (A) Following the effective date of the equipment authorization, material in the application and related materials (including technical specifications and test measurements) will be made available for public inspection by placement in the Commission's public database except as specified in paragraphs (d)(1)(ii)(B), (C), and (D) of this section.

    (B) Portions of applications for equipment certification of scanning receivers and related materials will not be made available for inspection.

    (C) Exhibits from an equipment authorization application that set forth schematics, block diagrams, operational descriptions, or parts lists/tune-up procedures will not be made available for public inspection except upon grant of a request under § 0.461.

    (D) Upon requests by the applicant, the following exhibits from an equipment authorization application will not be made available for public inspection for a period of 45 days after the effective date of the equipment authorization except upon grant of a request under § 0.461 external photos, test setup photos, user's manual, and internal photos. The 45-day time period may be extended in 45-day increments up to a maximum of 180 days upon request. These exhibits will immediately be made available to the public if the device is marketed to the public or otherwise publicized by the applicant or by an entity acting on the applicant's behalf prior to the expiration of this period. The applicant must notify the Telecommunication Certification Body (TCB) issuing the equipment authorization prior to the device being marketed to the public or otherwise publicized.

    PART 2—FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS 3. The authority citation for part 2 continues to read as follows: Authority:

    47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.

    4. Section 2.1(c) is amended by revising the definition of “Software defined radio” to read as follows:
    § 2.1 Terms and definitions.

    Software defined radio. A radio that includes a transmitter in which the operating parameters of frequency range, modulation type or maximum output power (either radiated or conducted), or the circumstances under which the transmitter operates in accordance with Commission rules, can be altered by making a change in software without making any changes to hardware components that affect the radio frequency emissions.

    § 2.813 [Removed]
    5. Remove § 2.813. 6. Section 2.901 is revised to read as follows:
    § 2.901 Basis and purpose.

    (a) In order to carry out its responsibilities under the Communications Act and the various treaties and international regulations, and in order to promote efficient use of the radio spectrum, the Commission has developed technical standards for radio frequency equipment and parts or components thereof. The technical standards applicable to individual types of equipment are found in that part of the rules governing the service wherein the equipment is to be operated. In addition to the technical standards provided, the rules governing the service may require that such equipment be authorized under a Supplier's Declaration of Conformity or receive a grant of certification from a Telecommunication Certification Body.

    (b) The following sections describe the procedure for a Supplier's Declaration of Conformity and the procedures to be followed in obtaining certification and the conditions attendant to such a grant.

    § 2.902 [Removed]
    7. Remove § 2.902. 8. Section 2.906 is revised to read as follows:
    § 2.906 Supplier's Declaration of Conformity.

    (a) Supplier's Declaration of Conformity is a procedure where the responsible party, as defined in § 2.909, makes measurements to insure that the equipment complies with the appropriate technical standards. Submittal to the Commission of a sample unit or representative data demonstrating compliance is not required unless specifically requested pursuant to § 2.945.

    (b) Supplier's Declaration of Conformity attaches to all items subsequently marketed by the manufacturer, importer, or the responsible party which are identical, as defined in § 2.908, to the sample tested and found acceptable by the manufacturer.

    (c) The responsible party may, if it desires, apply for Certification of a device subject to the Supplier's Declaration of Conformity. In such cases, the rules governing certification will apply to that device.

    9. Section 2.907 is revised to read as follows:
    § 2.907 Certification.

    (a) Certification is an equipment authorization approved by the Commission, or issued by a Telecommunication Certification Body (TCB) and authorized under the authority of the Commission, that is based on representations and test data submitted by the applicant or parties authorized by the applicant.

    (b) Certification attaches to all units subsequently marketed by the grantee which are identical, as defined in § 2.908, to the sample tested except for changes or other variations authorized by the Commission or a TCB pursuant to §§ 2.924 and 2.1043.

    (c) Certification may be obtained for a device capable of independent operation, a device or a group of devices authorized under a single FCC Identifier, a modular device capable of operation only upon installation into another device, or an end product containing one or more devices that were previously certified.

    10. Section 2.909 is revised to read as follows:
    § 2.909 Responsible party.

    (a) For radio frequency equipment subject to certification, the party responsible for the compliance of the equipment with the applicable standards is specified as follows:

    (1) The party to whom that grant of certification is issued (i.e., the grantee) is the responsible party.

    (2) When a new grant of certification is based on an existing grant of certification, the party to whom the new grant of certification is issued is the responsible party for the equipment produced under new certification; the original grantee remains responsible for equipment produced under the original grant of certification.

    (3) If the equipment is assembled from components that includes certified modular transmitter(s) authorized pursuant to § 2.1042, then the assembler is responsible for following the installation guidelines provided by the grantee of each modular transmitter and for obtaining additional approvals necessary for the overall compliance of the final end product, and the party who obtained the grant of certification for the modular transmitter(s) remains the responsible party for those transmitters. However, the assembler or integrator may become the new grantee for individual modular transmitters or the assembled product by submitting an application for certification pursuant to § 2.1033. The host device may also be subject to Supplier's Declaration of Conformity procedures as described in paragraph (b) of this section.

    (4) Retailers, original equipment manufacturers or assemblers may enter into an agreement with the responsible party designated in paragraph (a)(1) or (2) of this section to assume the responsibilities to ensure compliance of equipment and become the new responsible party by applying for a grant of certification to request a new FCC Identifier.

    (5) If the radio frequency equipment is modified by any party not working under the authority of the responsible party, the party performing the modifications, if located within the U.S., or the importer, if the equipment is imported subsequent to the modifications, becomes the new responsible party. The new responsible party must file for a new grant of certification pursuant to § 2.1033.

    (b) For equipment subject to Supplier's Declaration of Conformity the party responsible for the compliance of the equipment with the applicable standards is set forth as follows:

    (1) The manufacturer or, if the equipment is assembled from individual component parts and the resulting system is subject to authorization under a Supplier's Declaration of Conformity, the assembler. If the resulting system is subject to certification, the assembler becomes responsible party as required in paragraph (a) of this section.

    (2) If the equipment, by itself, or a system assembled from individual parts and the resulting system is subject to the Supplier's Declaration of Conformity procedures and that equipment is imported, the importer.

    (3) Retailers or original equipment manufacturers may enter into an agreement with the responsible party designated in paragraph (b)(1) or (2) of this section to assume the responsibilities to ensure compliance of equipment and become the new responsible party.

    (4) The importer of equipment subject to Supplier's Declaration of Conformity procedures may, upon receiving a written statement from the manufacturer that the equipment complies with the appropriate technical standards, rely on the manufacturer or independent testing agency to verify compliance. The test records required by § 2.938 must be in the English language and made available to the Commission upon a reasonable request, in accordance with § 2.945(c). If the radio frequency equipment is modified by any party not working under the authority of the responsible party, the party performing the modifications, if located within the U.S., or the importer, if the equipment is imported subsequent to the modifications, becomes the new responsible party.

    (c) If the end product or equipment is subject to both certification and Supplier's Declaration of Conformity, all the requirements of paragraphs (a) and (b) of this section apply.

    (d) A party that repairs or refurbishes certified equipment with the permission of the grantee is not required to obtain a new grant of certification if the equipment continues to conform to the specifications of its previously approved grant of certification. Repairs or refurbishment of equipment performed by a party not acting under the permission of the grantee are modifications that will make the repairing/refurbishing party responsible for the compliance of the equipment pursuant to paragraph (a)(5) of this section, and will require the party to obtain a new grant of certification for the equipment. Replacement or installation of parts that are commonly changed by users, retailers or refurbishers, such as battery packs, hard drives, memory or enclosures which do not impact device compliance and as permitted in § 2.1043(b)(1), would not be considered modifications to a device.

    (e) In the case of transfer of control of equipment, as in the case of sale or merger of the responsible party, the new entity shall bear the responsibility of continued compliance of the equipment.

    11. Remove the undesignated center heading preceding § 2.911. 12. Section 2.911 is amended by redesignating paragraphs (d)(3) and (4) as paragraphs (d)(4) and (5) and by adding paragraph (d)(3) to read as follows:
    §  2.911 Application requirements.

    (d) * * *

    (3) The applicant shall provide the contact information of a party located in the United States that is responsible for compliance.

    13. Section 2.924 is revised to read as follows:
    § 2.924 Use of a single FCC Identifier for equipment having multiple trade names, models or type numbers, or functional similarities.

    (a) The responsible party may market devices having different model/type numbers or trade names without additional authorization, provided that such devices are identical and the equipment bears an FCC Identifier validated by a grant of certification. For the purposes of this section, a device will be considered to be identical if no changes are made to the authorized device, or if the changes were made to the device pursuant to § 2.1043.

    (b) A family of products (a group of devices that are clearly similar, based upon the overall design of the devices, their functions, components and layout, may be viewed as being a single authorized device or a series of similar devices that have been subjected to minor modifications) may be marketed pursuant to one grant of certification under a single FCC Identifier. For a device to be certified as a family of products, the initial application for certification shall contain a declaration of the intent to include and/or to develop a family of products. Each variation of the product shall be evaluated for compliance and include appropriate data (e.g. radio frequency exposure or Hearing Aid Compatibility) as required by the Commission's rules for each model variation.

    14. Section 2.925 is revised to read as follows:
    § 2.925 Identification of equipment.

    (a) Each equipment covered in an application for equipment authorization shall bear a label listing the following:

    (1) FCC Identifier consisting of the two elements in the exact order specified in § 2.926. The FCC Identifier shall be preceded by the term FCC ID in capital letters on a single line.

    (2) Any other statements or labeling requirements imposed by the rules governing the operation of the specific class of equipment, except that such statement(s) of compliance may appear on a separate label at the option of the applicant/grantee.

    (3) The information required may be provided electronically pursuant to § 2.935

    (4) Equipment subject only to registration will be identified pursuant to part 68 of this chapter.

    (b) Any device subject to more than one equipment authorization procedure may be assigned a single FCC Identifier. However, a single FCC Identifier is required to be assigned to any device consisting of two or more sections assembled in a common enclosure, on a common chassis or circuit board, and with common frequency controlling circuits. Devices to which a single FCC Identifier has been assigned shall be identified pursuant to paragraph (a) of this section.

    (1) Separate FCC Identifiers may be assigned to a device consisting of two or more sections assembled in a common enclosure, but constructed on separate sub-units or circuit boards with independent frequency controlling circuits. The FCC Identifier assigned to any transmitter section shall be preceded by the term TX FCC ID, the FCC Identifier assigned to any receiver section shall be preceded by the term RX FCC ID and the identifier assigned to any remaining section(s) shall be preceded by the term FCC ID.

    (2) Where terminal equipment subject to part 68 of this chapter, and a radiofrequency device subject to equipment authorization requirements are assembled in a common enclosure, the device shall be labeled in accordance with the requirements published by the Administrative Council for Terminal Attachments and shall also display the FCC Identifier in the format specified in paragraph (a) of this section.

    (3) For a transceiver, the receiver portion of which is subject to Supplier's Declaration of Conformity pursuant to § 15.101 of this chapter, and the transmitter portion is subject to certification, the FCC Identifier required for the transmitter portion shall be preceded by the term FCC ID.

    (c) In order to validate the grant of certification, the label shall be permanently affixed to the equipment and shall be readily visible to the purchaser at the time of purchase unless the label is in electronic form pursuant to § 2.935.

    (1) As used here, permanently affixed means that the required information is etched, engraved, stamped, indelibly printed, or otherwise permanently marked on a permanently attached part of the equipment enclosure. Alternatively, the required information may be permanently marked on a nameplate of metal, plastic, or other material fastened to the equipment enclosure by welding, riveting, etc., or with a permanent adhesive. Such a nameplate must be able to last the expected lifetime of the equipment in the environment in which the equipment will be operated and must not be readily detachable.

    (2) As used here, readily visible means that the required information must be visible from the outside of the equipment enclosure. It is preferable that it be visible at all times during normal installation or use, but this is not a prerequisite for grant of equipment authorization.

    (d) Modular transmitters certified pursuant to § 2.1042 must be equipped with either a permanently affixed label or must be capable of electronically displaying its FCC Identifier pursuant to § 2.935.

    (1) If using a permanently affixed label, the modular transmitter must be labeled with its own FCC Identifier, and, if the FCC Identifier is not visible when the modular transmitter is installed inside another device, then the outside of the device into which the modular transmitter is installed must also display a label referring to the enclosed modular transmitter. This exterior label can use wording such as the following: “Contains certified modular transmitter FCC ID: XYZMODEL1” or “Contains FCC ID: XYZMODEL1.” Any similar wording that expresses the same meaning may be used. The Grantee may either provide such a label, an example of which must be included in the application for equipment authorization, or, must provide adequate instructions along with the modular transmitter which explain this requirement. In the latter case, a copy of these instructions must be included in the application for equipment certification.

    (2) If the modular transmitter uses an electronic display of the FCC Identifier, the information must be readily accessible and visible on the modular transmitter or on the device in which it is installed. If the modular transmitter is installed inside another device, then the outside of the device into which the modular transmitter is installed must display a label referring to the enclosed modular transmitter or provide the information electronically pursuant to § 2.935. This label can use wording such as the following: “Contains certified modular transmitter(s) FCC ID: XYZMODEL1.” Any similar wording that expresses the same meaning may be used. The user manual must include instructions on how to access the electronic display. A copy of these instructions must be included in the application for equipment authorization.

    (3) If a party installing a certified modular transmitter obtains a new grant of certification for the modular transmitter, it can use an exterior label or provide the information electronically pursuant to § 2.935 using wording such as “Contains certified modular transmitter FCC ID:XYXMODEL1 changed to FCC ID:ABCXXXX”. Any similar wording that expresses the same meaning may be used.

    (e) Where it is shown that a permanently affixed label is not desirable or is not feasible, an alternative method of positively identifying the equipment may be used if approved by the Commission. The proposed alternative method of identification and the justification for its use must be included with the application for equipment authorization.

    Note to paragraph (e): As an example, it would be possible to show that an alternate method of identification would be necessary for a device intended to be implanted within the body of a test animal or person.

    (f) The FCC Identifier including the term FCC ID shall be in a size of type large enough to be readily legible, consistent with the dimensions of the equipment and its label. However, the type size for the FCC Identifier is not required to be larger than eight-point. If a device is so small that it is impractical to label it with the FCC Identifier in a font that is four-point or larger, and the device does not have a display that can show electronic labeling, then the FCC Identifier shall be placed in the user manual and must also either be placed on the device packaging or on a removable label attached to the device.

    15. Remove the undesignated center heading preceding § 2.927. 16. Section 2.927 is amended by revising paragraph (a) to read as follows:
    § 2.927 Limitations on grants.

    (a) A grant of certification is valid only when the device is labeled in accordance with § 2.925 and remains effective until set aside, revoked or withdrawn, rescinded, surrendered, or a termination date is otherwise established by the Commission.

    17. Section 2.931 is revised to read as follows:
    § 2.931 Responsibilities.

    (a) The responsible party warrants that each unit of equipment marketed under its grant of certification and bearing the identification specified in the grant will conform to the unit that was measured and that the data (design and rated operational characteristics) filed with the application for certification continues to be representative of the equipment being produced under such grant within the variation that can be expected due to quantity production and testing on a statistical basis.

    (b) A party integrating and marketing end products by installing or assembling certified modular transmitters into a host device must follow all the instructions that are provided concerning the installation of the modular transmitter, the type and layout of the transmit antenna, and any other steps that must be taken to ensure the compliance of the end product. The installer must ensure that the host device is of a type that is permissible for use under the approved modular transmitter(s) certification. If the installer confirms that the requirements are met, then no further equipment authorization is required except for retention of records pursuant to § 2.938. If the installer cannot show that these requirements are met or end product specific compliance requirements are specified, then the integrator/installer must perform additional testing to demonstrate that the end product complies with all applicable technical requirements, including RF exposure and Hearing Aid Compatibility (HAC), as appropriate, with the installed combination of modular transmitters. When additional testing is required, the installer must obtain a new grant of certification for the end product pursuant to § 2.1033, or alternatively either the installer or the grantee of certification for the modular transmitter must file additional test data to supplement to the original modular transmitter's test data pursuant to § 2.1043(e) or file for an application for a new equipment certification for the modular transmitter pursuant to § 2.1033.

    (c) A party marketing a certified modular transmitter(s) to be installed by the end user must demonstrate compliance with all Commission requirements under all the likely installation and use configurations an end-user may deploy pursuant to § 2.1042(b)(6). The evaluation must ensure that the final assembly will comply with all the applicable rules for such assembly.

    (d) In determining compliance for devices subject to Supplier's Declaration of Conformity, the responsible party warrants that each unit of equipment marketed under the Supplier's Declaration of Conformity procedure will be identical to the unit tested and found acceptable with the standards and that the records maintained by the responsible party continue to reflect the equipment being produced under such Supplier's Declaration of Conformity within the variation that can be expected due to quantity production and testing on a statistical basis.

    (e) For equipment subject to Supplier's Declaration of Conformity, the responsible party must reevaluate the equipment if any modification or change adversely affects the emanation characteristics of the modified equipment. The responsible party bears responsibility for continued compliance of subsequently produced equipment.

    § 2.932 [Removed]
    18. Remove § 2.932.
    § 2.933 [Removed]
    19. Remove § 2.933. 20. Add § 2.935 to read as follows:
    § 2.935 Electronic labeling of radiofrequency devices.

    Any radiofrequency device equipped with an integrated electronic display screen may display on the electronic display the FCC Identifier, any warning statements, or other information that the Commission's rules would otherwise require to be shown on a physical label attached to the device.

    (a) Devices displaying their FCC Identifier, warning statements, or other information electronically must make this information readily accessible on the electronic display. Users must be provided with prominent instructions on how to access the information in the operating instructions, inserts in packaging material, or other easily accessible format at the time of purchase. The access instructions must also be available on the product-related Web site, if such a Web site exists, and a copy of these instructions must be included in the application for equipment certification.

    (b) Devices displaying their FCC Identifier, warning statements, or other information electronically must permit access to the information without requiring special codes, accessories or permissions and the access to this information must not require more than three steps in the menu.

    (c) The electronically displayed FCC Identifier, warning statements, or other information must be displayed electronically in a manner that is clearly legible without the aid of magnification.

    (d) The necessary label information must be programmed by the responsible party and must be secured in such a manner that third-parties cannot modify it.

    (e) Devices displaying their FCC Identifier, warning statements, or other information electronically must also display this information on the product packaging or on a physical label placed on the product at the time of importation, marketing, and sales. If a physical label is used, it may be a removable label, or, for devices in protective bags, a label on the protective bag. Any removable label shall be of a type intended to survive normal shipping and handling and must only be removed by the customer after purchase.

    21. Section 2.938 is revised to read as follows:
    § 2.938 Retention of records.

    (a) For equipment subject to the equipment authorization procedures in this part, the responsible party shall maintain the records listed as follows:

    (1) A record of the original design drawings and specifications and all changes that have been made that may affect compliance with the standards and the requirements of § 2.931.

    (2) A record of the procedures used for production inspection and testing to ensure conformance with the standards and the requirements of § 2.931.

    (3) A record of the test results that demonstrate compliance with the appropriate regulations in this chapter.

    (b) For equipment subject to Supplier's Declaration of Conformity procedures, the responsible party shall, in addition to the requirements in paragraph (a) of this section, maintain a record of the measurements made on an appropriate test site that demonstrates compliance with the applicable regulations in this chapter. The record shall:

    (1) Indicate the actual date all testing was performed;

    (2) State the name of the test laboratory, company, or individual performing the testing. The Commission may request additional information regarding the test site, the test equipment or the qualifications of the company or individual performing the tests;

    (3) Contain a description of how the device was actually tested, identifying the measurement procedure and test equipment that was used;

    (4) Contain a description of the equipment under test (EUT) and support equipment connected to, or installed within, the EUT;

    (5) Identify the EUT and support equipment by trade name and model number and, if appropriate, by FCC Identifier and serial number;

    (6) Indicate the types and lengths of connecting cables used and how they were arranged or moved during testing;

    (7) Contain at least two drawings or photographs showing the test set-up for the highest line conducted emission and showing the test set-up for the highest radiated emission. These drawings or photographs must show enough detail to confirm other information contained in the test report. Any photographs used must clearly show the test configuration used;

    (8) List all modifications, if any, made to the EUT by the testing company or individual to achieve compliance with the regulations in this chapter;

    (9) Include all of the data required to show compliance with the appropriate regulations in this chapter;

    (10) Contain, on the test report, the signature of the individual responsible for testing the product along with the name and signature of an official of the responsible party, as designated in § 2.909; and

    (11) A copy of the compliance information, as described in § 2.1077, is required to be provided with the equipment.

    (c) The provisions of paragraph (a) of this section shall also apply to a manufacturer of equipment produced under an agreement with the original responsible party. The retention of the records by the manufacturer under these circumstances shall satisfy the grantee's responsibility under paragraph (a) of this section.

    (d) For equipment subject to more than one equipment authorization procedure, the responsible party must retain the records required under all applicable provisions of this section.

    (e) For equipment subject to rules that include a transition period, the records must indicate the particular transition provisions that were in effect when the equipment was determined to be compliant.

    (f) For equipment subject to certification, records shall be retained for a one year period after the marketing of the associated equipment has been permanently discontinued, or until the conclusion of an investigation or a proceeding if the responsible party (or, under paragraph (c) of this section, the manufacturer) is officially notified that an investigation or any other administrative proceeding involving its equipment has been instituted. For all other records kept pursuant to this section, a two-year period shall apply.

    (g) If radio frequency equipment is modified by any party other than the original responsible party, and that party is not working under the authorization of the original responsible party, the party performing the modifications is not required to obtain the original design drawings specified in paragraph (a)(1) of this section. However, the party performing the modifications must maintain records showing the changes made to the equipment along with the records required in paragraphs (a)(3) of this section. A new equipment authorization may also be required.

    21. Section 2.941 is amended by revising paragraph (a) to read as follows:
    § 2.941 Availability of information relating to grants.

    (a) Grants of equipment authorization are available in the Commission's public database.

    § 2.944 [Removed]
    22. Remove § 2.944. 23. Section 2.947 is amended by revising paragraph (a)(3) and adding paragraph (f) to read as follows:
    § 2.947 Measurement procedure.

    (a) * * *

    (3) Any measurement procedure acceptable to the Commission may be used to prepare data demonstrating compliance with the requirements of this chapter. Advisory information regarding measurement procedures can be found in the Commission's Knowledge Database, which is available at www.fcc.gov/labhelp/.

    (f) A composite system is a system that incorporates different devices contained either in a single enclosure or in separate enclosures connected by wire or cable. If the individual devices in a composite system are subject to different technical standards, each such device must comply with its specific standards. In no event may the measured emissions of the composite system exceed the highest level permitted for an individual component. Testing for compliance with the different standards shall be performed with all of the devices in the system functioning. If the composite system incorporates more than one antenna or other radiating source and these radiating sources are designed to emit at the same time, measurements of conducted and radiated emissions shall be performed with all radiating sources that are to be employed emitting.

    25. Remove the undesignated center heading preceding § 2.951.
    § 2.951 [Removed]
    26. Remove § 2.951.
    § 2.952 [Removed]
    27. Remove § 2.952.
    § 2.953 [Removed]
    28. Remove § 2.953.
    § 2.954 [Removed]
    29. Remove § 2.954.
    § 2.955 [Removed]
    30. Remove § 2.955. 31. Section 2.1033 is revised to read as follows:
    § 2.1033 Application for grant of certification.

    (a) An application for certification shall be filed electronically through the Commission's Equipment Authorization System (EAS) with all required information. Items that do not apply shall be so noted. Except as otherwise noted in this section, all applications for certification shall be accompanied by documentation containing the following information:

    (1) The full name, mailing address, electronic mail address, and telephone number of the responsible party for certification.

    (2) FCC Identifier and label information as required pursuant to § 2.925.

    (i) For devices where the FCC Identifier label is presented electronically, the application must include instructions for accessing the information.

    (ii) [Reserved]

    (3) A copy of the installation and operating instructions. A draft copy of the instructions may be submitted if the actual document is not available. The actual document shall be furnished to the FCC when it becomes available and prior to marketing the end product. The user's manual or instruction manual for an intentional or unintentional radiator shall prominently caution the user that changes or modifications not expressly approved by the party responsible for compliance could void the user's authority to operate the equipment.

    (i) If the application is for a modular transmitter, the installation instructions must clearly document the proper procedures for installing the modular transmitter as well as any limitations on the end product necessary to ensure compliance. If the conditions of use require any specific instructions to the end user, this information must also be included in the manual in a conspicuous location.

    (ii) In cases where the manual is provided only in a form other than paper, such as on a computer disk or over the Internet, the information required by this section may be included in the manual in that alternative form, provided the user can reasonably be expected to have the capability to access information in that form.

    (iii) The manual must include all the necessary advisories and information to be provided to the users as specified in the rules in this chapter.

    (4) A brief description of the circuit functions, a functional block diagram of the RF circuitry of the device along with a statement describing how the device operates including software or firmware used to control such functions. This statement should contain a description of the ground system and antenna, if any, used with the device.

    (i) For devices including modular transmitters which are software defined radios and use software to control the radio or other parameters subject to the Commission's rules, the description must include details of the equipment's capabilities for software modification and upgradeability, including all frequency bands, power levels, modulation types, or other modes of operation for which the device is designed to operate, whether or not the device will be initially marketed with all modes enabled. The description must state which parties will be authorized to make software changes (e.g., the grantee, wireless service providers, other authorized parties) and the software controls that are provided to prevent unauthorized parties from enabling different modes of operation. Manufacturers must describe the methods used in the device to secure the software in their application for equipment authorization and must include a high level operational description or flow diagram of the software that controls the radio frequency operating parameters. The applicant must provide an attestation that only permissible modes of operation may be selected by a user.

    (ii) For modular transmitters that can be placed in a physical platform that will not itself be certified (i.e. a form factor), the description must include reference designs for the physical platform and a showing of how the modular transmitter will meet the requirements of such designs.

    (5) A schematic diagram showing the frequency of all oscillators in the device. The signal path and frequency shall be indicated at each applicable location. The tuning range(s) and intermediate frequency(ies) shall be indicated.

    (6) A report of measurements showing compliance with the pertinent FCC technical requirements. This report shall identify the test procedure used (e.g., specify the FCC test procedure, or industry test procedure that was used), the date the measurements were made, the location where the measurements were made, and the device that was tested (model and serial number, if available). The report shall include sample calculations showing how the measurement results were converted for comparison with the technical requirements.

    (i) For devices required to provide radiofrequency exposure evaluation pursuant to the requirements of this chapter, the report must identify the evaluation procedures and include all the necessary measurements or calculations necessary to demonstrate compliance. If the test reports are provided to show compliance of host products incorporating specific certified modular transmitters approved pursuant to § 2.1042, the information must include host-specific testing and appropriate guidance to ensure that the device will operate in a compliant manner.

    (ii) For devices operating in licensed radio services the following must be provided:

    (A) The data required by §§ 2.1046 through 2.1057, inclusive, measured in accordance with the procedures set out in § 2.1041.

    (B) Type or types of emission.

    (C) The dc voltages applied to and dc currents into the several elements of the final radio frequency amplifying device for normal operations over the power range.

    (D) The tune up procedure over the power range or at specific operating power levels.

    (E) Range of operating power values or specific operating power levels, and description of any means provided for variation of operating power.

    (7) Frequency or frequency range.

    (8) Maximum power rating as defined in the applicable part(s) of this chapter.

    (9) A sufficient number of photographs to clearly show the exterior appearance, the construction, the component placement on the chassis, and the chassis assembly. The exterior views shall show the overall appearance, the antenna(s) used with the device (if any), the controls available to the user, and the required identification label in sufficient detail so that the name and FCC Identifier can be read. In lieu of a photograph of the label, a sample label (or facsimile thereof) may be submitted together with a sketch showing where this label will be placed on the equipment.

    (i) For devices where the FCC Identifier label is presented electronically, the application must include a screen shot or equivalent representation of the display containing the information and the steps required to access that display.

    (ii) [Reserved]

    (10) If the equipment is certified as a modular transmitter pursuant to § 2.1042 and can only be certified for a specific host or can be approved for limited types of use, a list of such limitations.

    (11) If the equipment for which certification is being sought must be tested with peripheral, accessory devices or host devices connected or installed, a brief description of those peripherals or accessories. The peripheral or accessory devices shall be unmodified, commercially available equipment.

    (12) At least one drawing or photograph showing the test set-up for each of the required types of tests applicable to the device for which certification is requested. These drawings or photographs must show enough detail to confirm other information contained in the test report. Any photographs used must clearly show the test configuration used.

    (13) All applications must be accompanied by the anti-drug abuse certification required under § 1.2002 of this chapter.

    (b) In addition to the information listed in paragraph (a) of this section, the following information must be submitted for specific categories of devices:

    (1) For equipment subject to the provisions of part 15 of this chapter, the application shall indicate if the equipment is being authorized pursuant to the transition provisions in § 15.37 of this chapter.

    (2) Applications for the certification of scanning receivers shall include a statement describing the methods used to comply with the design requirements of all parts of § 15.121 of this chapter. The application must specifically include a statement assessing the vulnerability of the equipment to possible modification and describing the design features that prevent the modification of the equipment by the user to receive transmissions from the Cellular Radiotelephone Service. The application must also demonstrate compliance with the signal rejection requirement of § 15.121 of this chapter, including details on the measurement procedures used to demonstrate compliance.

    (3) Applications for certification of transmitters operating within the 59.0-64.0 GHz band under part 15 of this chapter shall also be accompanied by an exhibit demonstrating compliance with the provisions of § 15.255(g) of this chapter.

    (4) For equipment employing digital modulation techniques, a detailed description of the modulation system to be used, including the response characteristics (frequency, phase and amplitude) of any filters provided, and a description of the modulating wavetrain, shall be submitted for the maximum rated conditions under which the equipment will be operated.

    (5) The application for certification of an external radio frequency power amplifier under part 97 of this chapter need not be accompanied by the data required by paragraph (a)(6)(ii)(A) of this section. In lieu thereof, measurements shall be submitted to show compliance with the technical specifications in subpart C of part 97 of this chapter and such information as required by § 2.1060.

    (6) An application for certification of an AM broadcast stereophonic exciter-generator intended for interfacing with existing certified, or formerly type accepted or notified transmitters must include measurements made on a complete stereophonic transmitter. The instruction book must include complete specifications and circuit requirements for interconnecting with existing transmitters. The instruction book must also provide a full description of the equipment and measurement procedures to monitor modulation and to verify that the combination of stereo exciter-generator and transmitter meet the emission limitations of § 73.44 of this chapter.

    (7) Applications for certification required by § 25.129 of this chapter shall include any additional equipment test data and information required by that section.

    (8) Applications for certification of equipment operating under part 20 of this chapter, that a manufacturer is seeking to certify as hearing aid compatible, as set forth in § 20.19 of this chapter, shall include a statement indicating compliance with the test requirements of § 20.19 of this chapter and indicating the appropriate M-rating and T-rating for the equipment. The manufacturer of the equipment shall be responsible for maintaining the test results.

    (9) Applications for certification of equipment operating under part 27 of this chapter, that a manufacturer is seeking to certify for operation in the:

    (i) 1755-1780 MHz, 2155-2180 MHz, or both bands shall include a statement indicating compliance with the pairing of 1710-1780 and 2110-2180 MHz specified in §§ 27.5(h) and 27.75 of this chapter.

    (ii) 1695-1710 MHz, 1755-1780 MHz, or both bands shall include a statement indicating compliance with § 27.77 of this chapter.

    (iii) 600 MHz band shall include a statement indicating compliance with § 27.75 of this chapter.

    (10) Applications for certification of U-NII devices in the 5.15-5.35 GHz and the 5.47-5.85 GHz bands must include a high level operational description of the security procedures that control the radio frequency operating parameters and ensure that unauthorized modifications cannot be made.

    (11) Applications for certification of equipment operating under part 90 of this chapter and capable of operating on the 700 MHz interoperability channels (See § 90.531(b)(1) of this chapter) shall include a Compliance Assessment Program Supplier's Declaration of Conformity and Summary Test Report or, alternatively, shall include a document detailing how the applicant determined that its equipment complies with § 90.548 of this chapter and that the equipment is interoperable across vendors.

    (c) A single application for certification may be filed to authorize an end product that incorporates devices subject to certification under multiple rule parts or under multiple sections within a rule part. The application must include all the information required in this section for each applicable rule parts or sections within a rule part. The end product must be labeled with a single FCC Identifier if a single application is filed. Separate applications must be filed if different FCC Identifiers will be used for each device in the end product.

    (d) A single application for certification may be filed to authorize a family of products, as described in § 2.929(b), under a single FCC Identifier. The devices must be clearly similar, based upon their overall design of the devices, their functions, components and layout. The applicant for certification must provide a clear description of the devices that would be included in the family of products and the differences between them.

    (e) A grant of certification must be modified by a new application whenever there is a change in the design, circuitry, construction or other characteristics of a device reported at the time of previous certification (including the original application and any subsequent updates as permitted by the provisions of § 2.1043). The application must include:

    (1) A description of the changes;

    (2) Documentation pursuant to paragraph (a) or (h) of this section to update any of the originally submitted information that was affected by the modification of the device; and

    (3) If the application includes a request to change the FCC Identifier, an applicant that is not the original grantee must provide documentation that the original grantee has given the new applicant permission to reference the original filing, if applicable.

    (f) A grant of certification must be modified by a new application whenever there is a change in the FCC Identifier without changes in design, circuitry or construction of the certified device(s). The application is not required to include the measurement or test data specified in paragraph (a) of this section, although such data may be later requested by the TCB or the Commission. The following information shall be filed with such application:

    (1) An application that is not from the original grantee must provide with its application documentation confirming the grantee's consent to reference the original filing.

    (2) The original identification used on the equipment prior to the change in identification.

    (3) The date of the original grant of the equipment authorization.

    (4) How the equipment bearing the modified identification differs from the original equipment.

    (5) Whether the original test results continue to be representative of and applicable to the equipment bearing the changed identification.

    (6) The photographs required by paragraph (a)(9) of this section showing the exterior appearance of the equipment, including the operating controls available to the user and the identification label. Photographs of the construction, the component placement on the chassis, and the chassis assembly are not required to be submitted unless specifically requested by the Commission.

    (g) A grant of certification must be modified by a new application whenever an assembler or integrator incorporates one or more certified modular transmitters into a new host device where additional testing and a new FCC Identifier is requested. In such cases, the requirements of paragraph (e) of this section apply.

    (h) For certified modular transmitters that are incorporated in additional devices authorized under new FCC Identifier(s), the following applies: If the original grantee of certification receives approval for a change pursuant to § 2.1043(c) subsequent to the grant of an application for a new FCC Identifier, and the change will be incorporated into the equipment bearing the new FCC Identifier, then the grantee that received approval for a new FCC Identifier must also file for change in its equipment pursuant to § 2.1043(c).

    32. Add § 2.1042 to read as follows:
    § 2.1042 Certified modular transmitters.

    (a) A certified modular transmitter consists of a radiofrequency transmitter device that is incorporated or attached to another product, host, or a device for data and power and that satisfies the requirements to obtain a modular transmitter certification. A certified modular transmitter may also consist of a single chip package, provided it is authorized in accordance with all the requirements of this subpart.

    (b) Modular transmitters must meet the following requirements to obtain a modular transmitter certification:

    (1) The radio elements of the modular transmitter must have their own shielding. The physical crystal and tuning capacitors may be located external to the shielded radio elements.

    (2) The modular transmitter must have buffered modulation/data inputs (if such inputs are provided) to ensure that it will comply with the requirements of the rules under conditions of excessive data rates or over-modulation.

    (3) The modular transmitter must have its own power supply regulation.

    (4) The modular transmitter must be tested in a stand-alone configuration, i.e., it must not be inside another device during testing for compliance with the rules.

    (5) The modular transmitter must comply with any specific rules or operating requirements that ordinarily apply to a complete transmitter and the manufacturer must provide adequate instructions along with the modular transmitter to explain any such requirements. A copy of these instructions must be included in the application for equipment authorization.

    (6) If a modular transmitter is to be installed by the end-user, compliance with all Commission requirements must be demonstrated by the responsible party under all the likely installation and use configurations an end-user may deploy. Any RF exposure evaluation must include various likely user configurations, including those expected to create the greatest RF exposure.

    (7) A modular transmitter operating under part 15 of this chapter must comply with the antenna and transmission system requirements of §§ 15.203, 15.204(b) and 15.204(c) of this chapter. The antenna must either be permanently attached or employ a “unique” antenna coupler (at all connections between the modular transmitter and the antenna, including the cable). An antenna can be a trace on circuit board when all the characteristics are properly defined. The “professional installation” provision of § 15.203 of this chapter is not applicable to modular transmitters but can apply to limited modular approvals under paragraph (b) of this section.

    (8) A modular transmitter operating under part 15 of this chapter must comply with the AC line conducted requirements found in § 15.207 of this chapter unless it is battery powered. AC or DC power lines and data input/output lines connected to the module must not contain ferrites, unless they will be marketed with the module (see § 15.27(a) of this chapter). The length of these lines shall be the length typical of actual use or, if that length is unknown, at least 10 centimeters to insure that there is no coupling between the case of the module and supporting equipment. Any accessories, peripherals, or support equipment connected to the module during testing shall be unmodified and commercially available (see § 15.31(i) of this chapter).

    (c) A limited certification may be granted for a modular transmitter that does not comply with all of the requirements listed in paragraph (b) of this section, e.g., shielding/enclosures, minimum signaling amplitude, buffered modulation/data inputs, or power supply regulation, if the manufacturer can demonstrate by alternative means in the application for equipment certification that the modular transmitter meets all the applicable requirements under the operating conditions in which the transmitter will be used. A limited certification may also be granted in those instances where compliance with RF exposure rules is demonstrated only for limited applications or specific product configurations and installation or user requirements. The applicant for certification must state how control of the end product into which the modular