We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2011-0038), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov ) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via http://www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an e-mail address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rule” and insert “USCG-2011-0038” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov , click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2011-0038” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

We do not now plan to hold a public meeting. You may submit a request for one using one of the four methods specified under ADDRESSES . Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

Based on experience with actual security zone enforcement operations, the COTP San Diego has concluded that a security zone encompassing all navigable waters, extending from the surface to the sea floor, within a 100 yard radius around any cruise ship that is within the San Diego port area inside the sea buoys bounding the Port of San Diego would provide for the safety of the cruise ship, vessels, and users of the waterway.

The Coast Guard is establishing a permanent security zone regulation. The security zones created by this rule will encompass all navigable waters, extending from the surface to the sea floor, within a 100 yard radius around any cruise ship that is within the San Diego port area inside the sea buoys bounding the Port of San Diego. These security zones are necessary to provide for the safety of the cruise ship, vessels, and users of the waterway. Entry into these zones will be prohibited unless specifically authorized by the Captain of the Port (COTP) San Diego, or his designated representative.

Paragraph (b)(2) of the existing 33 CFR 165.1108 includes reference to the shore area. The COTP has determined that security zones for moored cruise ships in San Diego Harbor need not include any shore area, as passenger terminals used for cruise ship operations are regulated under regulations in 33 CFR part 105 issued under authority of the Maritime Transportation Security Act of 2002 (Pub. L. 107-295). The Coast Guard has issued a temporary final rule that suspends § 165.1108 (b)(2) through June 20, 2011, while this rulemaking is conducted. See 75 FR 82243, December 30, 2010.

This rule would revise both 33 CFR 165.1108 (b) and (c). In addition to clarifying the area covered by security zones created by § 165.1108 (b), this proposed rule would simplify the regulation by not distinguishing between anchored cruise ships, moored cruise ships and cruise ships underway. Also, we propose to revise paragraph (c) to make it clearer that persons and vessels may not enter these security zones without first obtaining permission of the Captain of the Port San Diego.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this rule to be so minimal that full Regulatory Evaluation is unnecessary. Most of the entities likely to be affected are pleasure craft engaged in recreational activities and sightseeing. In addition, due to National Security interests, the implementation of this security zone regulation is necessary for the protection of the United States and its people. The size of the zones is the minimum necessary to provide adequate protection for cruise ships.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in San Diego Bay within a 100-yard radius of cruise ships covered by this rule.

This security zone regulation will not have a significant economic impact on a substantial number of small entities because vessel traffic can pass safely around the zones.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

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

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

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

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under ADDRESSES . This proposed rule involves the establishment of security zones. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

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

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

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

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

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

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

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

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

EPA is proposing to approve into Ohio's SIP new rule OAC 3745-21-25 “Control of VOC Emissions from Reinforced Plastic Composites Production Operations.” This rule was submitted by the Ohio EPA to EPA on November 10, 2010, and contains requirements that satisfy RACT standards for VOC emissions from reinforced plastic composites production operations. This rule is needed to establish VOC RACT requirements for such operations to replace the requirements contained in OAC rule 3745-21-07 (Control of emissions of organic materials from stationary sources) because 3745-21-07 has been revised by Ohio, and the revised rule (which is the subject of a separate Federal Register action) excludes reinforced plastic composites production operations.

As discussed below, this rule satisfies RACT requirements and is consistent with the CAA and EPA regulations. A general discussion of the main elements of OAC 3745-21-25 (Control of VOC emissions from reinforced plastic composites production operations) follows:

3745-21-25(A) Applicability

(A)(1)—This rule applies to any facility that has reinforced plastic composites production operations, except as otherwise provided in paragraph (A)(2).

(A)(2)—This paragraph exempts any facility in which potential VOC emissions from all reinforced plastic composites production operations combined is 10.0 tons per year or less and requires that up-to-date records be kept of the potential to emit VOC from all reinforced plastic composites production operations. However, consistent with EPA's once in/always in policy, this exclusion is not available for any facility that has, or once had, a potential to emit for VOC equal to or greater than 10.0 tons per year for all reinforced plastic composites production operations combined on or after December 14, 2010 (12 months from the effective date of an earlier version of this rule).

(A)(3)—Upon achieving compliance with this rule, the reinforced plastic composites production operations at the facility are not required to meet the requirements of 3745-21-07, which is Ohio's general rule for the control of organic materials from stationary sources that are not controlled by another specific VOC RACT rule. This exemption from 3745-21-07 is appropriate because 3745-21-25 contains VOC RACT requirements specific to reinforced plastic composites production operations, whereas 3745-21-07 is a general rule that covers a number of source categories.

However, the applicability cutoff of 3745-21-07 is 8 lbs/hour or 40 pounds/day as compared to a 25 tons VOC/year cutoff for the control requirements of 3745-21-25 for sheet molding compound (SMC) manufacturing operations. The main purpose of this rule is the control of such SMC operations because SMC machines were previously covered by 3745-21-07. Ohio EPA submitted a October 25, 2010, demonstration under section 110(l) of the CAA that the less stringent applicability cutoff in 3745-21-25 does not interfere with attainment of the National Ambient Air Quality Standards, nor interfere with any other requirement of the CAA. Ohio documented that the worst case maximum theoretical increase in uncontrolled emissions is 159 tons of VOC/year, but that the actual emission increase from this change in applicability cutoffs would be 7.1 tons of VOC/year.

In December, 2007, Ohio EPA promulgated rules in OAC Chapter 3745-110, “NO X RACT.” These rules addressed the control of emissions of oxides of nitrogen (NO X ) from stationary sources such as boilers, combustion turbines, and stationary internal combustion engines. The rules were made applicable as an attainment strategy in the Cleveland-Akron-Lorain ozone moderate nonattainment area. On September 15, 2009, EPA redesignated the Cleveland-Akron-Lorain metropolitan area as attainment for the 1997 8-hour ozone NAAQS. At the same time, EPA approved a waiver, for this area, from the NO X RACT requirements of section 182(f) of the CAA. Ohio's NO X RACT rules are, therefore, surplus and can be used to offset any increase in emissions from SMC machines in Ohio. Ohio obtained 538 tons NO X /year actual (and surplus) emission reductions from the Arcelor-Mittal facility as a result of the installation of low NO X burners in its three reheat furnaces. The requirement for these low NO X burners is permanent and enforceable because they are needed to comply with OAC 3745-110, Ohio's NO X RACT rule. In the Cleveland-Akron-Lorain area, the ratio of NO X emissions to VOC emissions is approximately 1.36 pounds NOx/pound VOC. Applying this factor, the VOC offset potential for the Arcelor-Mittal facility NO X reductions is 396 tons VOC/year.

3745-21-25(B) Definitions—The definitions applicable to this rule are contained in paragraph (GG) of (OAC) Rule 3745-21-01. These definitions clearly and adequately define those terms which are needed to understand, and implement, the requirements contained in this rule.

3245-21-25(C) Affected operations—This section lists those reinforced plastic composites production operations subject to this rule such as open molding; compression/injection molding; and centrifugal casting. All of the appropriate affected operations are listed in this section. Of particular note are SMC manufacturing operations, a source category for which there are a number of sources previously covered by 3745-21-07. The main pollutant from reinforced plastic composites manufacturing operations is styrene, which is both a VOC and a hazardous air pollutant. Except for SMC machines, the other reinforced plastic composites manufacturing operations are adequately controlled by the National Emission Standards for Hazardous Air Pollutants: Reinforced Plastic Composites Production. (40 CFR part 63 subpart WWWW)

3245-21-25(D) VOC Control requirements—All affected operations must meet the work practice standards in Table 1 of this rule. If the combination of all reinforced plastic composites operations at a facility emits less than 100 tons of VOC per year, then the affected operations must meet the emission limits in Table 2 of this rule. If the combination of all reinforced plastic composites operations at a facility emits 100 tons or more of VOC per year, then the affected operations must reduce the total VOC emissions from these operations by at least 95 percent or, as an alternative, meet the VOC emission limits in Table 3 of this rule. Also, any SMC machine with uncontrolled VOC emissions of 25.0 tons or more per rolling 12-month period must be controlled by a VOC emission control system that reduces the VOC emissions from the SMC manufacturing machine by at least 95 percent. A provision of the rule allows for a site-specific alternative requirement if approved by EPA. These control requirements and applicability cutoffs are consistent with RACT.

3745-21-25(E) Emission factor determination—This section provides acceptable procedures for determining emission factors to determine compliance with certain VOC emission limits in table 2 and table 3 of this rule and to calculate VOC emissions. Emission factors approved by EPA, such as the emission factors in AP-42, may be used in lieu of a stack test. However, if a stack test is used the stack test results would supersede any published emission factors. In order to determine the monomer content of resins and gel coats, information provided by the material manufacturer, such as manufacturer's formulation data and material safety data sheets, may be relied upon unless contradicted by actual measurement results.

3745-21-25(F) Calculation of facility's VOC emission threshold—This section establishes the procedures, including use of a calculated emission factor and conducting performance testing, for calculating the facility's VOC emissions threshold in tons per year for purposes of determining which requirements apply under paragraph (D) of this rule.

3745-21-25(G)-(I)—These paragraphs provide acceptable options for meeting the VOC emissions limits for open molding and centrifugal casting operations, continuous lamination/casting operations, and pultrusion operations.

3745-21-25(J)-(K)—These paragraphs apply to wet out area(s) and oven(s) for continuous lamination/casting operations. Paragraph (J) provides an acceptable method for calculating the annual uncontrolled and controlled VOC emissions from these operations, and paragraph (K) provides an acceptable method for determining the capture efficiency of the enclosure of the wet-out area and the capture efficiency of ovens(s) from these operations.

3745-21-25(L)-(N)—These paragraphs provide acceptable procedures for calculating how much gel coat and resin is applied to the line and also for calculation of the percent reduction and a VOC emission factor to demonstrate compliance for continuous lamination/casting operations.

3745-21-25(O) Demonstration of Continuous compliance—This paragraph provides acceptable methods for establishing continuing compliance with each VOC control requirement in paragraph (D) of this rule that applies to the affected operations.

3745-21-25(P) Recordkeeping requirements—This paragraph establishes sufficient recordkeeping requirements to determine a facility's applicability and compliance status including all data, assumptions, and calculations used to determine monomer contents and VOC emission factors. There are also specific recordkeeping requirements for SMC manufacturing machines in paragraph (P)(2).

3745-21-25(Q) Reporting requirements—Semiannual compliance status reports are required for any reinforced plastic composites production operations subject to this rule. These compliance status reports must state that there were no deviations from VOC emission limitations, operating limits, or work practice standards during the reporting period. If such a deviation does occur, then detailed information is required on the deviation(s).

3745-21-25(R) Compliance dates—This paragraph requires affected operations for which installation commenced before December 14, 2009 (the effective date of an earlier version of this rule) to comply with the requirements of this rule by 12 months from December 14, 2009. Any affected operation for which installation commenced after December 14, 2009, must comply upon initial startup of the affected operation. These are reasonable compliance dates.

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

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

• 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).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

This is a summary of the Commission's Implementation of the Twenty-first Century Communications and Video Accessibility Act of 2010, Section 105, Relay Services for Deaf-Blind Individuals, Notice of Proposed Rulemaking ( NPRM ), document FCC 11-3, adopted and released on January 14, 2011, in CG Docket No. 10-210.

The full text of document FCC 11-3 and copies of any subsequently filed documents in this matter will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. They may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone: (800) 378-3160, fax: (202) 488-5563, or Internet: http://www.bcpiweb.com. Document FCC 11-3 can also be downloaded in Word or Portable Document Format (PDF) at http://www.fcc.gov/cgb/policy. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY). To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page http://www.reginfo.gov/public/do/PRAMain, (2) look for the section of the Web page called “Currently Under Review,” (3) click on the downward-pointing arrow in the “Select Agency” box below the “Currently Under Review” heading, (4) select “Federal Communications Commission” from the list of agencies presented in the “Select Agency” box, (5) click the “Submit” button to the right of the “Select Agency” box, (6) when the list of FCC ICRs currently under review appears, look for the Title of this ICR and then click on the ICR Reference Number. A copy of the FCC submission to OMB will be displayed. Pursuant to 47 CFR 1.1200 et. seq., this matter shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substances of the presentations and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required. Other rules pertaining to oral and written ex parte presentations in permit-but-disclose proceedings are set forth in 47 CFR 1.1206(b).

The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and OMB to comment on the proposed information collection requirements contained in this document, as required by the PRA. Public and agency comments are due March 28, 2011. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. 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 it may “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

OMB Control Number: 3060-XXXX.

Title: Implementation of the Twenty-first Century Communications and Video Accessibility Act of 2010, section 105, Relay Services for Deaf-Blind Individuals, CG Docket No. 10-210.

Form No.: N/A.

Type of Review: New collection.

Respondents: Individuals or households; Businesses or other for-profit entities; Not-for-profit Institutions; Federal government; State, local or Tribal governments.

Number of Respondents and Responses: 106 respondents and 583 responses.

Estimated Time per Response: 15 to 120 hours.

Frequency of Response: Annual, on occasion, one-time, monthly, and semi-annually reporting requirements; Record keeping requirement; Third party disclosure requirement.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for these proposed information collections is found at sections 1, 4, 225, 303(r), and 619 of the Communications Act of 1934, as amended (Act), 47 U.S.C. 151, 154, 225, 303(r), and 619 of the Communications Act of 1934, as amended.

Total Annual Burden: 22,472 hours.

Total Annual Costs: None.

Nature and Extent of Confidentiality: Confidentiality is an issue to the extent that individuals and households provide personally identifiable information, which is covered under the FCC's system of records notice (SORN), FCC/CGB-1, “Informal Complaints and Inquiries.” As required by the Privacy Act, 5 U.S.C. 552a, the Commission also published a SORN, FCC/CGB-1 “Informal Complaints and Inquiries”, in the Federal Register on December 15, 2009 (74 FR 66356) which became effective on January 25, 2010.

Privacy Act Impact Assessment: Yes. The Privacy Impact Assessment (PIA) was completed on June 28, 2007. It may be reviewed at: http://www.fcc.gov/omd/privacyact/Privacy_Impact_Assessment.html. The Commission is in the process of updating the PIA to incorporate various revisions made to the SORN.

Needs and Uses: In document FCC 11-3, the Commission proposes rules that would provide State equipment distribution programs (EDPs) and potentially qualifying public or private entities the opportunity to apply for Commission certification in order to be eligible to operate an equipment distribution program under the NDBEDP. The proposed rules would also require program recipients of funding under the NDBEDP to submit the proposed data to the Fund Administrator every six months necessary to ensure that the Fund is being used for the purpose intended by Congress. Further, the proposed rules would require program recipients of funding under the NDBEDP to submit data and report on: (1) Administrative expenses incurred in participating in this program; (2) complaints received on the equipment and appeals on eligibility; and (3) other consumer related disputes. Finally, the proposed rules would require program recipients to retain electronic records of the proposed data at a reasonable period of time necessary for administrative review and audits.

1. In document FCC 11-3, the Commission proposes rules to implement section 105 of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), Public Law 111-260. The CVAA authorizes the FCC to allocate $10 million annually from the interstate relay fund (TRS Fund) for the NDBEDP. The need for an effective equipment distribution program for communications access for people who are deaf-blind has been well documented. While many States already distribute some specialized communications equipment to people with disabilities through their own State equipment distribution programs (EDPs), many, if not most, have been unable to afford the extremely high costs associated with communications equipment needed by people who are deaf-blind.

Comments received in response to the Public Notice that initiated this proceeding provide further evidence of the need for this program. See Consumer And Governmental Affairs Bureau Seeks Comment On Implementation Of Requirement To Define Programs For Distribution Of Specialized Customer Premises Equipment Used By Individuals Who Are Deaf-Blind, Public Notice, document DA 10-2112, released November 3, 2010 in CG docket number 10-210 ( NDBEDP PN ).

2. People who are deaf-blind may have varying levels of residual sight and hearing. While some may be born with significant levels of hearing and vision loss, others lose their sight and hearing gradually throughout their lifespan; and for some, deafness and blindness are experienced as a result of an illness, injury, or aging. These varying levels of disability, together with the geographically diverse nature of this population, present novel challenges for the Commission in its efforts to develop a nationwide equipment distribution program that effectively meets the communication needs of these individuals. The establishment of permanent rules for this program must be informed by both data and experience.

3. For this reason, the Commission proposes to implement an eighteen-month pilot program of the NDBEDP, with interim regulations. The Commission believes it is prudent to engage in such a trial program because the experiences gained and data gathered will provide us with a more complete and practical understanding of how to ensure the best use of the funds available under this program for the intended population. The Commission further proposes that it reserve the option to extend the pilot program for up to an additional six months, for a total of two years if the Commission determines that such additional time is needed for this assessment.

4. The proposed pilot program relies heavily on currently operating State EDPs, and turns to alternative local distribution efforts only where State entities are not available to participate in this national program. During this trial period, the Commission will be gathering extensive data to build a foundation for the development of permanent rules for the NDBEDP, which will be adopted through a future rulemaking proceeding.

5. The Commission has reviewed the benefits and disadvantages of utilizing the State equipment distribution programs (EDPs) and believes that on balance, the use of these programs for a pilot program would be appropriate, with certain safeguards to protect against State program eligibility criteria that are not consistent with the CVAA. Specifically, if a State has an established EDP that is willing to participate in this program and is approved by the Commission, the Commission proposes that such program become the sole authorized entity for the State to receive compensation from the TRS Fund for the distribution of equipment to that State's deaf-blind residents. For States that do not have an EDP or that have an EDP that is not approved to participate in this program, the Commission proposes allowing other programs ( e.g., vocational rehabilitation programs, assistive technology programs, or schools for the deaf, blind or deaf-blind) or private entities ( e.g., independent living centers, organizational affiliates, or private schools) to apply to the Commission for certification to distribute this specialized CPE in the State. The Commission further proposes that the factors to be considered in determining whether to grant certification of a local program—as well as in selecting among multiple applicants—include the extent to which each applicant has:

• Expertise in the field of deaf-blindness, including a strong familiarity with the communications needs of this population;

• Adequate staffing and facilities to administer the program;

• Experience with the distribution of specialized CPE, especially to people who are deaf-blind;

• The ability to install specialized CPE covered under the program and train users on how to use that equipment;

• The ability to effectively communicate with people who are deaf-blind (for training and other purposes), including the ability to communicate in sign language, provide materials in Braille, and use other assistive technologies and methods to achieve effective communication; and

• The ability to distribute equipment and related services to eligible individuals throughout the State (including to remote areas), either directly or in coordination with other local programs.

6. The Commission seeks comment on this approach as well as on other criteria it should add to this list. The Commission proposes to provide notice to the public of which States will participate in the NDBEDP pilot program via their State EDP, after which the Commission proposes to commence the process of accepting and reviewing applications from other eligible entities (for States in which a State EDP has either not applied or has not been deemed eligible to participate in the NDBEDP). The Commission further seeks comment on the length of time such certification should be granted at the conclusion of this pilot program if it continues utilizing this certification process. In addition, the Commission seeks comment on a proposal to permit coordinated State ventures, so long as a single entity—either the State's EDP or the certified entity discussed above—assumes full oversight and responsibility for all equipment distributed within its State under the NDBEDP and becomes the sole entity authorized to receive compensation from the TRS Fund.

7. The CVAA defines as eligible for the receipt of specialized CPE low income persons who meet the definition of “individuals who are deaf-blind” contained in the Helen Keller National Center Act (HKNC Act). See Pub. L. 111-260, Section 105, citing the Rehabilitation Act Amendments of 1992 (29 U.S.C. 1905(2)). The HKNC Act defines such individuals as persons:

(1) Who have a central visual acuity of 20/200 or less in the better eye with corrective lenses, or a field defect such that the peripheral diameter of visual field subtends an angular distance no greater than 20 degrees, or a progressive visual loss having a prognosis leading to one or both these conditions; (2) who have a chronic hearing impairment so severe that most speech cannot be understood with optimum amplification, or a progressive hearing loss having a prognosis leading to this condition; and (3) for whom the combination of impairments described in clauses (i) and (ii) cause extreme difficulty in attaining independence in daily life activities, achieving psychosocial adjustment, or obtaining a vocation.

8. The NDBEDP PN noted that under the HKNC Act, where individuals “cannot be measured accurately for hearing and vision loss because of cognitive and/or behavioral constraints, they may still be considered deaf-blind if, though functional, they are considered either by themselves or others to be both deaf and blind.” NDBEDP PN at 2.

9. Commenters largely proposed a flexible interpretation of this definition that would allow determinations of eligibility for equipment to turn on an individual's functional abilities. While the Commission is bound by statute to use the definition of individuals who are deaf-blind in the HKNC Act, the Commission believes it would be appropriate to direct State programs that are authorized to distribute equipment under the NDBEDP to apply this definition in accordance with the underlying intent of the CVAA To this end, the Commission proposes that when applying the second prong of this definition, which requires a chronic hearing impairment so severe that most speech cannot be understood with optimum amplification, local distribution programs take into consideration the settings in which the deaf-blind applicant is likely to establish communication with others. Similarly, the Commission proposes that the third prong of the HKNC Act definition, which focuses on the difficulties that an individual with a combination of vision and hearing losses has in attaining independence in daily life activities, apply to the ability of such individual to use the communication services covered by section 105. The Commission seeks comment on this approach.

10. While the Commission believes that some verification of a person's disability is necessary to prevent fraud and abuse, given the physical limitations of persons covered under this program, the Commission understands the need to permit verification of one's disability in a non-burdensome manner. Accordingly, the Commission seeks comment on its tentative conclusion that individuals claiming eligibility under the NDBEDP should be permitted to obtain verification from any practicing professional who has direct knowledge of the individual's disability. Such professionals would include, but not be limited to, a vocational rehabilitation counselor, audiologist, speech pathologist, educator, hearing instrument specialist, or physician. Any of these professionals must be able to attest to the applicant's physical disability (as defined above), and in doing so, may include information about the inability of such individual to use traditional or emerging communications equipment as a result of his or her hearing and vision loss. The Commission seeks comment on the content of the attestations of such professionals. The commission proposes that the professional provide his or her name, title, and contact information, including address, phone number and e-mail address in the certification. The Commission also seeks comment on whether such professionals should be required to certify to the best of their knowledge that the individual's disability satisfies our eligibility requirements. Alternatively, should the Commission require such certifications be made under penalty of perjury?

11. The CVAA limits eligibility in the NDBEDP to individuals who have low incomes. In the NDBEDP PN, the Commission sought comment on the appropriateness of applying to the NDBEDP the definition of “qualifying low-income consumer” that is used by the Lifeline and Link up universal service programs.

12. The Commission is concerned about achieving consistency across the States, and unnecessarily complicating the equipment application process by requiring individual evaluations of personal expenses. At the same time, the Commission recognizes the extraordinarily high costs of the specialized equipment covered under this program (which virtually all commenters agree range from $5,000 to $10,000 per person), as well as he unusually high medical and related costs associated with being both deaf and blind. In order to effectively take these costs into consideration, the Commission seeks comment on its proposal to adopt an income threshold, to be applied nationwide, that is 400% of the Federal Poverty Guidelines (FPG). Alternatively, the Commission seeks comment on whether States that already have EDPs with income thresholds should be permitted to use their own low income criteria for distributing equipment under the NDBEDP during the pilot program. For States that do not have an EDP with an income threshold, the Commission seeks comment on a proposal that would allow such programs to use the proposed Federal default income threshold.

13. The Commission seeks comment on its proposal that individuals already enrolled in certain low income programs automatically be deemed eligible to receive equipment as long as the income threshold for eligibility in those programs does not exceed the threshold the Commission establishes for participation in this program. Where individuals are not already enrolled in any such programs, the Commission seeks proposals for a method of verification that is not unduly burdensome.

14. The Commission seeks comment on other eligibility requirements, unrelated to disability or income, that might be appropriate for the NDBEDP, such as access to telecommunications or Internet service. The Commission has tentatively proposed not to make employment status an eligibility requirement.

15. Section 105 of the CVAA authorizes the distribution of specialized CPE needed to make telecommunications services, Internet access service or advanced communications accessible to people who are deaf-blind. Given the varied nature of both the deaf-blind population and breadth of communication technologies that can meet the individual and unique needs of these individuals, the Commission seeks comment on a proposal that certified NDBEDP programs be given the discretion to determine the specific equipment needed by individual consumers during the NDBEDP's pilot period.

16. The Commission seeks comment on the extent to which certain mainstream equipment should be considered “specialized customer premises equipment” under the statute and should be covered. The Commission also seeks comment on the extent to which funding caps should be imposed on the amount of money available for the purchase of equipment—whether mainstream or adaptive—for each individual who is eligible to receive equipment under the NDBEDP, what the appropriate funding caps should be, and the period of time to which such cap should apply.

17. Finally, seeking to balance the limited funding in this program with advances in technology, the Commission seeks comment on its proposal that individuals be permitted to obtain new equipment every five years and new software on an as needed basis.

18. One of the purposes of the NDBEDP is to ensure that as 21st century communications technologies continue to be developed for the general public, people who are deaf-blind are not left behind. Yet the record in this proceeding suggests that even current communications technologies may not be meeting the needs of the full spectrum of people who are deaf-blind. However, at this stage of the NDBEDP, without a better grasp of the specific gaps in current technologies used by the deaf-blind community, and without a fuller understanding of what the costs of closing those gaps are likely to be, the Commission is concerned that it would be premature to set aside significant funds for research and development (R&D) efforts.

19. Accordingly, the Commission tentatively proposes not to allocate funding at this time for R&D. However, the Commission seeks further comment on the extent to which there is a basis for concluding that R&D is necessary to ensure an effective distribution program because solutions do not exist to meet the needs of certain individuals who make up the deaf-blind population.

20. With respect to conducting inquiries on the equipment needs and preferences of the deaf-blind community, the Commission does not propose setting aside funding for market research at this time. Rather, it is the Commission's expectation that it will be able to collect much of the information that such research would gather through the various reporting requirements that it proposes below. To the extent that the reporting obligations are not adequate for this purpose, the Commission proposes reconsidering the need for specific market research in the context of a future rulemaking proceeding on this program. The Commission seeks comment on this approach, and solicits as well input on ways to encourage and facilitate innovations on a long-term basis, to fully address the communications access needs of the deaf-blind population.

21. The Commission recognizes a definite need for qualified assistive technology specialists, familiar with both the manner in which deaf-blind people communicate and the range of specialized equipment available, to conduct such assessments to ensure that the equipment given out effectively meets each recipient's unique communications needs. The Commission seeks comment on its proposal that the State EDPs or certified NDBEDP programs (where there is no State EDP) be given the discretion to determine the need for such assessments on a case-by-case basis, and to select the appropriate personnel within their programs to carry out this responsibility. The Commission also seeks comment on its proposal that the costs for such assessments be reimbursable as necessary to facilitate the efficient and effective distribution of equipment for use by people who are deaf-blind.

22. Given the highly specialized nature of the equipment to be distributed under this program, and the lack of communications experience by its future participants, the Commission proposes that funding be available for the installation of equipment and individualized training of end users associated with equipment distributed under the NDBEDP. The Commission seeks comment on how such training can best be achieved, given the scarcity of experienced trainers, especially in remote and rural areas. The Commission also seeks comment on the extent to which equipment and software manufacturers whose equipment is purchased for the program should provide training or contribute to the costs of providing training for their products.

23. Given the past practices of State EDPs to include the costs of maintenance and repairs within their local distribution programs, the Commission tentatively concludes that such expenses should be compensable under the NDBEDP where these are not incurred as a result of negligence or misuse on the part of the consumer or distribution program, and seeks comment on this approach. In addition, the Commission seeks comment on the appropriateness of loaning equipment and whether participants in the NDBEDP should have a means of allowing consumers to return equipment that they no longer need so that it can be re-furbished and re-distributed to other individual program participants on an as needed basis.

24. The Commission seeks comment on the level and types of outreach that will be needed to enable the NDBEDP to fulfill Congress's objective of bringing communication technologies to the deaf-blind community. It is the Commission's expectation that States will have their own incentives to conduct the outreach necessary to get this equipment into the hands of their deaf-blind citizens so they can spend, rather than forfeit, the money allotted to them in any given year. However, because not all States have EDPs, and because some States may not act on this incentive, the Commission seeks comment on whether to set aside a portion of the $10 million for a contract that would be awarded to a national organization to conduct outreach.

25. In addition to seeking comment on its authority to set aside specific funding portions, the Commission seeks input on suggested amounts for each of their allocations, with a goal of not unduly limiting the amount of money left for the principal purpose of the program, equipment distribution. The Commission tentatively proposes a funding allocation that is proportional to the population at large of each State and seeks comments on this approach. The Commission proposes to require that all costs incurred through participation in the NDBEDP pilot program be reasonable, and seeks comment on whether caps should be placed on the administrative functions related to participation in this program, and if such caps should vary based on factors such as State deaf-blind population numbers.

26. Distribution of funding can occur in one of two ways: By advance distribution of one-time allocations to eligible programs or via a reimbursement mechanism that pays for equipment already distributed (up to each State's allotment). The Commission tentatively concludes that the latter approach would provide greater accountability, as well as provide the incentives needed for local distribution programs to actively locate and provide equipment to their deaf-blind communities. The Commission seeks comment on this approach, which would periodically reimburse authorized distribution programs for equipment distributed in their States up to the allocable ceiling for that State, and asks at what intervals such payments should be made. The Commission further seeks comment on a proposal to require that any money allocated to a State that is not spent in any given year be returned to the TRS Fund, to be re-distributed to all of the States during subsequent funding years. This approach would ensure that the failure of any program to fulfill its commitment to distribute devices would not penalize people who are deaf-blind because unused funds would continue to be available in future years for their communication needs. Nevertheless, section 105 of the CVAA limits the total amount of support that the Commission may provide to this program for any fiscal year to $10 million. In light of this statutory restriction, the Commission seeks comment on whether it has the discretion to carry over unused allotments to subsequent years.

27. Data on the distributed equipment and related services in the NDBEPD pilot program will provide the Commission with much needed information about the technology needs and preferences of the deaf-blind community, along with how local distribution programs are able to meet those needs. To this end, the Commission proposes to require that State EDPs and certified program recipients in States without EDPs submit data every six months until the completion of the pilot program on the following:

• For each piece of equipment distributed, its name, serial number, brand and function ( e.g., amplifier, Braille embosser), its cost, the type of service with which it is used ( e.g., telephone, Internet), and the type of relay service it can access ( e.g., TRS, video relay, etc. );

• For each piece of equipment distributed, the identity and contact information for the consumer receiving that equipment;

• For each piece of equipment distributed, the identity and contact information for the individual attesting to the disability of the individual who is deaf-blind;

• The cost, time and any other resources allocated to assessing an individual's equipment need;

• The cost, time and any other resources allocated to installing equipment and training deaf-blind participants on using equipment;

• The cost, time and any other resources allocated to repair and maintenance of equipment;

• The cost, time and any other resources allocated to outreach activities related to the NDBEDP;

• The cost, time and any other resources allocated to upgrading the distributed equipment during the pilot program, along with the nature of such upgrades ( e.g., software upgrade; replacement part); and

• Any research and development performed.

28. The Commission seeks comment on its proposal for the collection of the above information, and solicit recommendations on any additional data it should require local distribution programs to submit. For example, should these semi-annual reports also contain proposed best practices for each of the obligations noted above, including which equipment is most effective in terms of usability and reliability for deaf-blind participants? Should programs be required to report on the administrative expenses incurred in participating in this program? Should programs be required to report complaints received on the equipment and appeals on eligibility, as well as other consumer related disputes? The Commission also seeks comment on how long programs should be required to retain electronic records with the above information, as well as what specified period of time—for example, 5 years—is appropriate for the retention of these records.

29. The Commission proposes that certified distribution programs be subject to regular audits by an independent entity to prevent fraud, waste and abuse, and asks what would be an appropriate interval of time for such audits to be conducted. Additionally, the Commission tentatively concludes that equipment distribution programs covered under the NDBEDP not be permitted to accept any type of financial arrangement from equipment vendors that could incentivize the purchase of particular equipment. Such arrangements could run counter to the program's purpose, which is to provide equipment that meets each individual's unique needs.

30. Finally, the Commission tentatively proposes that program administrators who submit any data to the Commission certify such data to be true and accurate under penalty of perjury.

31. The Commission proposes to delegate authority to the Consumer and Governmental Affairs Bureau to designate a NDBEDP Program Administrator. This individual would work in collaboration with the TRS Fund Administrator, and be responsible for:

• Identifying, verifying and contacting current State EDPs to notify them of their eligibility for program participation.

• Reviewing program applications and certifying local programs to administer the distribution of equipment in each of the States.

• Serving as the Commission point of contact and overseeing all of the certified distribution programs.

• Overseeing any national training programs.

• Reviewing and evaluating State data for best practices.

• Working with Commission staff to adopt permanent rules for the NDBEDP.

32. The Commission further proposes that the Fund Administrator (as directed by the NDBEDP Program Administrator) have responsibility for:

• Reviewing cost submissions and releasing funds for equipment purchases and authorized associated services.

• Releasing funds for a nationwide training program.

• Releasing funds for a nationwide outreach effort.

• Releasing funds for other purposes, as directed by the Commission.

• Collecting data as needed for delivery to the NDBEDP Program Administrator.

33. Advisory Body. Because of the specialized nature of this program, the Commission seeks comment on the need for a newly created advisory body that could work with the NDBEDP Program Administrator and Fund Administrator to evaluate consumer experiences with the program, assess the program's benefits, explore new technologies, and consider changes to the program's features. Alternatively, the Commission seeks comment on whether this advisory function can be satisfactorily accomplished by charging one of the following existing advisory bodies to monitor the operations and effectiveness of the NDBEDP: the FCC's Consumer Advisory Committee, whose purpose is to make recommendations to the Commission regarding consumer issues or the Interstate TRS Fund Advisory Council, whose purpose is to monitor TRS cost recovery matters.

34. Central Repository. The Commission seeks comments on use of a future clearinghouse for the purpose of a central repository, including ways in which the NDBEDP and clearinghouse could work together to inform the deaf-blind public about the local equipment distribution programs available to them.

35. Whistleblower Provision. The Commission recognizes that the NDBEDP involves the use and management of funds which may, like any funding program, be susceptible to waste, abuse and fraud. As part of the Commission's obligation to ensure that this fund is being used for its targeted consumers, it proposes to adopt a specific whistleblower protection rule for the employees of State and local programs authorized to distribute equipment under the NDBEDP.

36. NDBEDP as a Supplemental Funding Source. When it is established, the NDBEDP will be one of several governmental programs that either authorize or direct the distribution of specialized CPE to the deaf-blind community. The Commission proposes that where existing Federal or State programs already direct or fund equipment distribution for the deaf-blind community, or are required to provide equipment to certain eligible deaf-blind persons, the NDBEDP work along side these programs, to serve as a supplement to, rather than as a replacement for, their distribution efforts. In this manner, the Commission will be able to maximize the availability of these funds for those who are unable to qualify for such other programs. The Commission seeks comment on this proposal. In addition, the Commission seeks comment on the need for safeguards to ensure that individuals seeking equipment under the NDBEDP do not “double dip” into multiple equipment distribution programs for the same devices. For example, as part of the application process, should the Commission require that individual applicants be required to certify that they have not otherwise received the same equipment from other Federal and State program sources? Given that many people who are deaf-blind may require multiple devices to achieve the communications accessibility intended by Congress under the CVAA, how should the Commission define such “double dipping?” Finally, given the Commission's overall goal to distribute end-user equipment under this program to individuals who have not been able to otherwise receive such equipment, should the Commission adopt a rule that disqualifies from participation, during this pilot program, those individuals who are eligible under or have already received equipment from these other equipment distribution programs? The Commission seeks comment on whether such an approach during our pilot program would assist in reaching portions of this population that have never been served by any equipment distribution source.

37. The Regulatory Flexibility Act of 1980, as amended (RFA), see 5 U.S.C. 603 (b), requires that an initial regulatory flexibility analysis be prepared for notice-and-comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 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 that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA), 15 U.S.C. 632.

38. In document FCC 11-3, the Commission seeks comment on its proposal to implement section 105 of The Twenty-First Century Communications and Video Accessibility Act of 2010 (Communications Accessibility Act or CVAA), signed into law by President Obama on October 8, 2010, that requires the Commission to take various measures to ensure that people with disabilities have access to emerging communications technologies in the 21st Century. Section 105 of this law directs the Commission to establish rules within six months of enactment of the new statute that define as eligible for relay service support those programs approved by the Commission for the distribution of specialized customer premises equipment (specialized CPE) to people who are deaf-blind. The goal of this NDBEDP is to make equipment used with telecommunications service, Internet access service, and advanced communications, including interexchange services and advanced telecommunications and information services, accessible by low income individuals who are deaf-blind. This item proposes rules to create an effective and efficient process governing the distribution of specialized CPE to enhance and promote access to telecommunications and related communications services by low-income individuals who are deaf-blind.

39. Specifically, the Commission seeks comment on a proposed definition of individuals who are deaf-blind for purposes of eligibility in the NDBEDP, proposed criteria for verifying a person's disability, proposed income criteria, and other eligibility considerations. In addition, the Commission seeks comment on the scope of specialized CPE covered under this program; and whether any portion of the funding should be allocated to research and development, individualized assessment of communication needs, installation and training, maintenance, warranties, repairs, outreach, or education. The Commission seeks comment on the appropriate allocation of funding, and on a proposal for specific reporting requirements to be imposed on recipients of NDBEDP funding. The Commission also seeks comment on the logistics of administering the program. Finally, the Commission seeks comment on several other considerations including the establishment of: an advisory body to provide input on the program; a central repository of information; whistleblower protections for individuals who provide information on fraud, waste and abuse; and a vehicle for the NDBEDP to be used as a supplemental funding source to other Federal programs.

40. The Commission proposes to require that recipients of NDBEDP funding seeking to distribute specialized CPE and receive compensation for the distribution of such equipment under the NDBEDP pilot program first receive certification from the Commission. The Commission proposes the following factors to be considered in determining whether to grant certification: (i) Expertise in the field of deaf-blindness, including a strong familiarity with the communications needs of this population; (ii) adequate staffing and facilities to administer the program; (iii) experience with the distribution of specialized CPE, especially to people who are deaf-blind; (iv) the ability to install specialized CPE covered under the program and to train users on how to use that equipment; (v) the ability to effectively communicate with people who are deaf-blind (for training and other purposes), including the ability to communicate in sign language, provide materials in Braille, and use other assistive technologies and methods to achieve effective communication; and (vi) the ability to distribute equipment and related services to eligible individuals throughout the state (including to remote areas), either directly or in coordination with other local programs.

41. In addition, the Commission proposes to require that each program certified under the NDBEDP pilot program must: (1) Distribute specialized customer premises equipment needed to make telecommunications service, Internet access service, and advanced communications, including interexchange services and advanced telecommunications and information services, accessible to individuals who are deaf-blind; (2) verify that each individual applying to the NDBEDP pilot program for equipment meets the definition of an individual who is deaf-blind contained at § 64.610(b) of the Commission's rules; and (3) verify that each individual applying to the NDBEDP pilot program for equipment meets the income eligibility requirements established by the Commission. The Commission proposes to allow each program certified under the NDBEDP pilot program to: (1) Use a portion of the funds received under the NDBEDP pilot program for individual needs assessments; (2) use a portion of the funds received under the NDBEDP pilot program for installation of equipment and consumer training; and (3) use a portion of the funds received under the NDBEDP pilot program for maintenance, repairs, and warranties on equipment distributed to consumers.

42. Finally, the Commission proposes to require each program certified under the NDBEDP pilot program to submit data every six months until the completion of the pilot program on the following: (1) For each piece of equipment distributed, its name, serial number, brand and function, its cost, the type of service with which it is used, and the type of relay service it can access; (2) for each piece of equipment distributed, the identity and contact information for the consumer receiving that equipment; (3) for each piece of equipment distributed, the identity and contact information for the individual attesting to the disability of the individual who is deaf-blind; (4) the cost, time and any other resources allocated to assessing an individual's equipment needs; (5) the cost, time and any other resources allocated to installing equipment and training deaf-blind participants on using equipment; (6) the cost, time and any other resources allocated to repair and maintenance of equipment; (7) the cost, time and any other resources allocated to outreach activities related to the NDBEDP; and (8) the cost, time, and any other allocation related to upgrading the distributed equipment during the pilot program, along with the nature of such upgrades.

43. With regard to whether a substantial number of small entities may be economically impacted by the requirements proposed in document FCC 11-3 the Commission notes that, a substantial number of small entities will be likely be affected; however, the economic impact on such entities will be de minimis. Most participating entities are likely meet the definition of a small entity as a “small organization,” or a “small governmental jurisdiction.” Our proposed action, if implemented, may, over time, affect small entities that are not easily categorized at present. The Commission therefore describe here, at the outset, three comprehensive, statutory small entity size standards. First, nationwide, there are a total of approximately 27.2 million small businesses, according to the SBA. In addition, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2002, there were approximately 1.6 million small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2002 indicate that there were 87,525 local governmental jurisdictions in the United States. The Commission estimates that, of this total, 84,377 entities were “small governmental jurisdictions.” Thus, the Commission estimates that most governmental jurisdictions are small. In addition, it is possible that some entities that fall under the category of “advanced communications services” may be participants in the NDBEDP pilot program. Section 101 of Title I of the Act, defines “advanced communications services” to mean (A) interconnected VoIP service; (B) non-interconnected VoIP service; (C) electronic messaging service; and (D) interoperable video conferencing service. See Pub. L. 111-260, 101(1) (amending Section 3 of the Communications Act). While the Commission's rules already define interconnected VoIP service, the Act provides new definitions for non-interconnected VoIP service, “electronic messaging service” and “interoperable video conferencing service.”

44. While the Congressional mandate has led us to list the above entities as the ones that in all reasonable likelihood will function as EDPs, there exists the possibility that our list herein of entities that will foreseeably function as EDPs may not be complete and/or may subsequently include entities not listed above. This includes entities which may not fit into traditional categories currently under the Commission's jurisdiction. However, as noted above, section 105 of the CVAA gives the Commission broad authority to establish rules that define as eligible for relay service support those programs approved by the Commission for the distribution of specialized customer premises equipment (specialized CPE) to people who are deaf-blind.

45. In addition, given that all providers potentially affected by the proposed rules, including those deemed to be small entities under the SBA's standard, would be entitled to receive prompt reimbursement for their reasonable costs of participation and compliance, the Commission concludes that document FCC 11-3, if adopted, will not have a significant economic impact on these small entities.

46. Therefore, the Commission certifies that the proposals in document FCC 11-3, if adopted, will not have a significant economic impact on a substantial number of small entities.

47. The Commission will send a copy of document FCC 11-3, including a copy of this Initial Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the SBA.

Pursuant to the authority contained in sections 1, 4(i), and 4(j) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), and The Twenty-First Century Communications and Video Accessibility Act of 2010, Pub. L. No. 111-260, that document FCC 11-3 is adopted.

The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of document FCC 11-3, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 64 as follows:

In final rules published under Docket HM-183, PHMSA's predecessor agency (Research and Special Programs Administration—RSPA) amended the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to prohibit the transportation of Division 5.1 (oxidizing), 5.2 (organic peroxides), 6.1 (toxic), and Class 8 (corrosive to skin only) hazardous materials in external product piping of a DOT specification cargo tank motor vehicle (CTMV), unless the vehicle is equipped with bottom damage protection devices. See 49 CFR 173.33(e), adopted at 54 FR 24982, 25005 (June 12, 1989), and 55 FR 37028, 37049 (Sept. 7, 1990). The external product piping refers to loading or unloading lines located on the bottom portion of cargo tanks that are exposed to vehicle collision. The term “wetlines” is commonly used in reference to external product piping when it contains product, specifically, hazardous material (see § 171.8 of the HMR) transported as cargo and is used throughout this notice of proposed rulemaking (NPRM) to describe the practice of transporting hazardous material in external product piping.

As explained in the June 12, 1989 final rule, the prohibition against wetlines was not applied to flammable liquids, such as gasoline, because “[a]ll motor fuels must be metered for tax purposes” and no method existed “to drain product from the cargo tank piping back into the loading facility and maintain proper accounting for tax purposes.” 54 FR 24937. Metering of motor fuels for tax purposes continues to date and a method to drain these fuels from cargo tank loading lines while still maintaining proper accounting has yet to be developed due to the cost considerations of installation of a process at loading racks capable of returning the product remaining in cargo tank loading lines to the loading facility or receiving the product as waste. In the September 7, 1990 final rule, we reiterated that the prohibition of wetlines was applicable only to DOT specification cargo tanks used to transport liquid hazardous materials and clarified that the prohibition in § 173.33(e) does not apply to liquid hazardous materials authorized for transportation in non-specification CTMVs. We also stated that “we strongly encourage the petroleum industry to consider the risk it accepts in operating cargo tank motor vehicles over the highway with hazardous materials retained in the piping and that the hazardous materials industry consider and recommend possible alternatives to eliminate this risk in the most cost-effective manner.” 55 FR 37030.

Thus, it remains that there is a segment of the CTMV population that transports flammable liquid material that is not subject to prohibition of wetlines unless the vehicle is equipped with bottom damage protection devices. We believe this continues to be an important safety concern. These CTMVs continue to be involved in motor vehicle accidents resulting loss of life attributable to wetlines (see Section II Incident Analysis ). Although no catastrophic incident has occurred in the recent past, PHMSA and the National Transportation Safety Board (NTSB) contend that incidents similar to the Yonkers, NY incident described in NTSB Recommendation (H-98-27; discussed in detail below) is likely to occur in the future. We base our concerns on the population of CTMVs involved in flammable liquid service, the daily volume of traffic on our Nation's roadways, and the possibility the average motor vehicle occupancy will increase as gasoline prices increase. 1 Outside of existing conspicuity and outreach initiatives, there is little that PHMSA can do to prevent a collision between a motor vehicle and the wetlines of a CTMV. However, PHMSA can implement additional measures to ensure that DOT specification CTMVs are utilized and designed in a manner that fully considers the likelihood and potential consequences of a wetlines incident and the hazards that such an incident poses to the vehicle driver and traveling public.

The National Transportation Safety Board (NTSB) is an independent Federal accident investigation agency. Since its creation in 1967, the NTSB has been determining the probable cause of transportation accidents and formulating safety recommendations to improve transportation safety. On May 18, 1998, the NTSB issued safety recommendation H-98-27 recommending that DOT:

NTSB continues to recommend the prohibition of what it considers the unsafe practice of transporting flammable liquids in wetlines. In recent correspondence with PHMSA, the NTSB expressed disappointment in our efforts to address the intent of their recommendation including the withdrawal of our December 30, 2004 NPRM (HM-213B; 69 FR 78375) and restated their concern by highlighting the results of an accident report (NTSB Report Number HZB-09-01) regarding a motor vehicle accident involving a CTMV transporting gasoline and a passenger vehicle that occurred July 1, 2009. The NTSB determined that the vehicle struck a wetline causing the release of 13 gallons which resulted in a fire that caused the death of the driver of the passenger vehicle. The NTSB noted that this accident illustrates why it believes PHMSA should prohibit the practice of transporting flammable liquids in wetlines. The NTSB concluded in its correspondence that based on the age of the recommendation, the lack of measurable progress by PHMSA to satisfy the intent of the recommendation, and that this unresolved issue contributed to the severity of another accident, their recommendation was downgraded from “Open-Acceptable Response” to “Open-Unacceptable Response.” The NTSB indicated that it would be willing to reconsider its position on the recommendation pending the publication of a rulemaking that prohibits the transportation of flammable liquids in wetlines.

On February 10, 2003, PHMSA published an advance notice of proposed rulemaking (ANPRM; 68 FR 6689) to solicit comments and information regarding methods to reduce the safety hazard associated with the retention of lading in unprotected wetlines. We asked commenters to address a number of issues to assist in making a determination as to whether regulatory changes could be affected, including the state of technological development, practical alternatives to protect the wetlines or eliminate the safety problem, the effectiveness of measures such as increased conspicuity or side guards, and industry practices to minimize the safety problem.

Based on comments received in response to the February 10, 2003, ANPRM and PHMSA assessment of the safety issues, on December 30, 2004, the agency published a notice of proposed rulemaking (NPRM; 69 FR 78375) proposing to amend the HMR to prohibit the carriage of flammable liquids in wetlines on a DOT specification cargo tank, unless the CTMV was equipped with bottom damage protection devices. PHMSA proposed a quantity limit of one liter or less in each pipe, but did not propose a specific method for achieving this standard. The NPRM included an exception from the proposed requirements for truck-mounted ( e.g., straight truck) DOT specification CTMVs. PHMSA proposed to require compliance with the proposed changes two years after the effective date of a final rule to provide time for planning, developing, and testing damage protection systems or systems designed to remove hazardous materials from product piping, or for redesigning CTMVs to eliminate external product piping altogether; and proposed to permit CTMV operators five years to phase in requirements applicable to existing CTMVs to minimize the costs of down time for installation of equipment or redesigns by providing an opportunity to retrofit an existing CTMV during the scheduled requalification time because each specification CTMV must undergo periodic hydrostatic pressure testing every five years.

Based on comments received in response to the notices, the agency reevaluated data and information concerning potential costs and benefits of regulatory alternatives to ensure that a final rule prohibiting the transportation of flammable liquids in unprotected wetlines would be cost-effective. After extensive analysis, PHMSA concluded that the quantifiable benefits accruing from such a prohibition would not justify corresponding costs. Accordingly, PHMSA withdrew the NPRM on June 7, 2006 (71 FR 32909).

In the June 7, 2006, notice of withdrawal, PHMSA made it clear that the NPRM was being withdrawn on the basis of public comments and additional data and analysis. PHMSA concluded that further regulation would not produce the level of benefits we originally expected and that the quantifiable benefits of proposed regulatory approaches would not justify the corresponding costs. As indicated in the withdrawal, PHMSA developed and implemented an outreach program to educate the industry, first responder community, and the public about potential risks associated with unprotected wetlines on these vehicles. PHMSA continued to collect data and other information in order to address its concerns further if warranted. Based on the number of wetlines incidents that continue to occur as well as the open NTSB recommendation, as well as concerns regarding the possibility of a low probability high-consequence event associated with a wetlines incident, PHMSA has reopened a wetlines rulemaking action.

In the withdrawal notice, we noted and commended the voluntary efforts taken by the flammable liquid industry to limit the safety hazard associated with the transportation of flammable liquids in unprotected wetlines. We indicated that one large gasoline distributor has installed purging systems on its CTMVs. In addition, another large gasoline distributor has installed damage protection equipment on its CTMVs which could help to mitigate the consequences of a collision with a motor vehicle.

In 2009, PHMSA reviewed approximately 6,800 incidents involving CTMVs transporting flammable or combustible liquids that occurred during the 10-year period from 1999-2009. PHMSA identified 172 incidents during this period in which wetlines were determined to be damaged and/or ruptured. A total of 18 of these incidents involved fires. Of these, eight incidents resulted in a fatality or injury. More specifically, four incidents resulted in five fatalities and four incidents resulted in four injuries directly attributable to a wetline release—that is, the fatalities and injuries resulted from a fire rather than blunt force trauma or some other event that would have occurred whether or not the wetline was damaged. Incident reports submitted to PHMSA can be reviewed at PHMSA's Hazmat Safety Community Web site at: http://phmsa.dot.gov/hazmat/incident-report .

PHMSA continues to be concerned about the potential for serious consequences resulting from an incident involving the collision of a passenger vehicle and the wetlines on a CTMV transporting a flammable liquid such as gasoline. Because the external piping used to load and unload cargo tanks in flammable liquid fuel service is located on the underside ( i.e., the belly) of a cargo tank, without protection, the piping remains exposed to a collision. The Yonkers incident investigated by the NTSB is a primary example of one such incident. As noted above, the incident involved a CTMV loaded with 8,800 gallons of gasoline. The CTMV was traveling under an overpass of the New York State Thruway (Thruway) when it was struck by a passenger vehicle. The vehicle hit the right side of the cargo tank in the area of the cargo tank housing the tank's wetlines, damaging the wetlines and releasing the gasoline they contained. The ensuing fire destroyed both vehicles and the overpass of the Thruway; the Thruway remained closed for approximately six months. The driver of the passenger vehicle was killed; the driver of the truck was not injured. The damage was estimated at $7 million. As serious as this incident was, under different circumstances the consequences could have been even more severe—if the incident had occurred during rush hour, for example, or if there had been more than one occupant of the passenger vehicle. We believe the risks associated with the carriage of flammable liquids in wetlines, particularly the potential for multiple fatalities and injuries resulting from the collision of a passenger vehicle with the wetlines on a CTMV, warrant renewed rulemaking action.

This NPRM is based on and supported by cost-benefit conclusions presented in the regulatory evaluation. The evaluation is available for review in the docket to this rulemaking. The evaluation of costs and benefits for this proposed rulemaking relies on a number of different assumptions that are independent— i.e., any change in unit cost assumptions will not affect the calculation of benefits, and vice versa. In addition, our cost estimates are based on a complete set of direct and indirect costs, most based on consensus estimates with stakeholders. In contrast, our benefit calculations are based on incidents occurring over the past ten years and the estimated consequences of a catastrophic event spread out over 20 years. As a result of our decision to spread the catastrophic event benefits over 20 years, PHMSA considers the values for estimated benefits to be conservative as evidenced through sensitivity analysis (see Section V Executive Order 12866 and DOT Regulatory Policies and Procedures ). We invite comment on our selection and determination of assumptions and calculations presented in the regulatory evaluation.

In this NPRM, PHMSA is proposing to prohibit the transportation of flammable liquids in exposed external product piping unless the CTMV is equipped with bottom damage protection that conforms to the requirements of § 178.337-10 or § 178.345-8(b)(1), as appropriate.

Since external product piping configurations on CTMVs transporting gasoline or other flammable liquids may possibly contain minimal amounts product even by design or when drained or purged, we are proposing to allow a residue quantity of no more than one liter (0.26 gallon or 33 ounces) to remain in each pipe. This allowance is a performance standard based on vehicle design. We assume that there much less of a hazard associated with this residual amount of flammable material and invite comment on this threshold quantity.

Operators of CTMVs achieving this performance standard would not be subject to the bottom damage protection requirements. We believe that compliance with this standard could be monitored by field operations personnel observing loading practices at a terminal or by viewing site gauges on piping when a CTMV is in transportation. We assume that there will be no additional enforcement costs associated with this monitoring and seek comment on the appropriateness of this assumption as well as the plausibility of enforcing this performance standard.

We are not proposing a specific method for achieving this residue standard but rather permitting latitude in developing measures to achieve compliance with either the damage protection requirements or prohibition of flammable liquid in wetlines to the one liter residue level. For example, an operator may elect to design external loading lines such that the quantity that remains is less than one liter per pipe. However, an operator may choose not to achieve this performance standard and continue the practice of wetlines by installing bottom damage protection on each CTMV. We invite comment on methods that can be used to achieve this performance standard and the costs associated with those methods.

Combustible Liquids. As proposed in this NPRM, the wetlines prohibition would not apply to a material classed as a combustible liquid or to a Class 3 flammable liquid material reclassed as a combustible liquid (see § 172.120(b) of the HMR). Because of their higher flashpoints, combustible liquids pose a lesser hazard than flammable liquids and are afforded a number of exceptions throughout the HMR. Moreover, our review of wetlines incidents occurring over the ten-year review of incidents included incidents involving transport of both combustible liquids and flammable liquids that could have been reclassed as combustible liquids. None of the wetlines incidents involving this class of materials resulted in a fatality or an injury. We invite comments concerning whether combustible liquids should be subject to the wetlines prohibition.

Truck-Mounted DOT Specification Cargo Tank Motor Vehicles. In this NPRM, PHMSA is proposing to except truck-mounted DOT Specification CTMVs (i.e., straight trucks) from the prohibition of wetlines containing flammable liquids. Straight trucks are designed and constructed with engine, body, and cargo tank permanently mounted to the same chassis. Based on the protective features afforded by their chassis and running gear, straight trucks present less of a hazard than most trailer and semi-trailer CTMVs because the external product piping is not exposed to impact from a vehicle collision in the same manner. Under this proposal, components of the CTMV framework such as chassis rails and cross-members, suspension components, structural mounting members, or any other device that substantially protects wetlines from the impact forces of another motor vehicle are expected to provide adequate bottom damage protection. We invite comment on whether this exception for straight trucks provides an acceptable level of safety, whether prohibiting flammable liquids in wetlines on straight trucks should be considered, or if a quantifiable design or performance standard should be developed for these types of CTMVs. In addition, we invite comment on whether a Design Certifying Engineer (see § 171.8 of the HMR) should be required for determination whether straight trucks are adequately protected as part of the design certification process that is required for all DOT specification CTMVs. We invite comment on the cost of implementing a requirement for such a certification process.

Transition Period and Compliance. In this NPRM, PHMSA is proposing that the changes become effective two years after publication of the final rule. The two-year transition period provides time for planning, developing, and testing damage protection systems or systems designed to remove hazardous materials from product piping, or for redesigning CTMVs. Following this two-year deferral period, each newly manufactured DOT Specification CTMV designed with external product piping would be subject to the requirements and each existing CTMV would be required to comply with the prohibition within ten years. Acknowledging that existing CTMVs would most likely have to be placed out of service to implement a measure to comply with the requirements, we are instituting a ten-year compliance period to accommodate this burden in hopes that this would allow sufficient time to schedule CTMVs to be out of service. We would expect that work on retrofits for existing CTMVs could be conducted at the same time as the periodic hydrostatic pressure tests that occur during the compliance period. The two-year transition period and ten-year compliance period are needed to balance the economic and operational impacts on CTMV operators and the safety enhancements from implementation of this requirement. We invite comment on the proposed two-year transition period as well as the extended ten-year compliance period for existing CTMVs. We also invite comment regarding the material, engineering, and labor costs associated retrofitting a cargo tank to comply with the proposed requirements.

Conforming amendment. For consistency in the application of the exception from the prohibition of wetlines for residue amounts of hazardous materials as adopted at 54 FR 24982, 25005 (June 12, 1989) and 55 FR 37028, 37049 (Sept. 7, 1990), PHMSA is proposing to revise the current exception in § 173.33(e) for hazardous materials other than flammable liquids to also specify an allowance for a residue quantity of one liter to remain in each line.

This rulemaking is issued under the authority of the Federal hazardous materials transportation law (49 U.S.C. 5101 et seq. ). 49 U.S.C. 5103(b) authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce.

This proposed rule is a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was reviewed by the Office of Management and Budget. The proposed rule is also a significant rule under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). A regulatory evaluation is available for review in the docket.

To evaluate the benefits and costs of the proposal to prohibit the carriage of flammable liquids in wetlines, we identified several technologies that would permit operators to reduce the risk from wetlines containing flammable liquids involved in a motor vehicle accident. The technologies included engineering redesigns such as shorter loading lines or relocating of loading lines such that the CTMV chassis provides protection from damage, or other alternatives such as installation of a fire suppression system. The technology selected for this final analysis is a manual purging system that can be installed without welding. This system is the lowest-cost system currently available that will allow for compliance with the performance standard of the proposed requirement. We invite comment to provide information on alternative technologies as well as the cost and benefits of such technologies to comply with the proposed requirement. A purging system evacuates the wetlines by forcing the liquid material out of the wetlines and into the cargo tank body. After loading of a cargo tank is completed and the main cargo compartment valves are closed, the system introduces compressed air from an auxiliary tank through an air filter and regulator into the lines. The purge can be completed after the CTMV leaves the loading racks and will not create additional standing time for the vehicle.

The regulatory evaluation assumes a total of 27,000 CTMVs would be affected by a rule, and the cost to install a manual, non-welded purging system would be $2,585 per CTMV (the cost numbers are based on information provided by equipment vendors). We also assumed the average service life for a CTMV in flammable liquid service is 20 years; thus, we assume on average five percent of the fleet would be retired each year. We invite comment on our assumption of the population of CTMVs in flammable liquid service that would be affected by this rulemaking as well as the assumed service life.

Benefits include avoided injuries and property damage attributable to wetlines incidents and avoided traffic delays, evacuations, emergency response, and environmental damage. For the ten-year period from January 1, 1999 through December 31, 2008, based on a review of incident narratives provided within each incident report including any follow-up communication with persons submitting the report for further clarification of the narrative, we identified 172 incidents in which wetlines were damaged and/or ruptured and a release occurred. A total of 18 of these incidents involved fires. These incidents resulted in five fatalities, four injuries, and millions of dollars in property damage.

We considered five alternatives. For purposes of this proposed rulemaking, newly constructed is defined as any new construction of a CTMV after the 2-year transition period following the effective date of the rulemaking:

(1) Do nothing;

(2) Prohibit the carriage of flammable liquids in wetlines on newly constructed and existing CTMVs. Existing CTMVs must be compliant in five years.

(3) Prohibit the carriage of flammable liquids in wetlines on newly constructed and existing CTMVs. Existing CTMVs must be compliant in ten years.

(4) Prohibit the carriage of flammable liquids in wetlines on newly constructed and existing CTMVs. Existing CTMVs must be compliant in fifteen years.

(5) Prohibit the carriage of flammable liquids in wetlines on newly constructed and existing CTMVs. Existing CTMVs must be compliant in twenty years. Given the estimated 20-year service life of CTMVs, this alternative implies that only newly constructed cargo tanks would be subject to the prohibition.

The present value benefits and costs for the compliance alternatives are provided below at 3% and 7% discount rates. A benefit-cost ratio of greater than 1.0 indicates a cost beneficial rulemaking. At the 3% discount rate, the ratios are just under 1.0 for all four alternatives.

In addition to identifying the benefits and costs, we also developed corresponding sensitivity values to see how sensitive the analysis to changes in data used to calculate the ratios. The series of sensitivity analyses developed provide ranges of benefits and costs for each alternative. As previously indicated, in our base case, the benefit-cost ratios are marginally less than 1.0. However, adjustment of data points for the sensitivity analyses dramatically shifts the averages above 1.0 in all cases, reflecting the relative confidence between benefits and costs. For example, keeping costs the same as the baseline and increasing the number of fatalities per incident to 3 compared to the baseline of 1.6, and raising other (non-casualty) reported damages and associated damages by 10% increases the benefit-cost ratio to 1.6. For a complete discussion of the sensitivity analysis, please review the regulatory evaluation available in the docket to this rulemaking.

A summary of the sensitivity analysis is provided below in Table 4. High and low values are identified at both 3% and 7% discount rates.

We selected alternative 3 for which the benefit-cost ratio is 0.96 (discounted at 3%). Our analysis is based on estimates in evaluating benefits and costs. Both costs and benefits rely on different assumptions that are independent—i.e., any change in unit cost assumptions will not affect the calculation of benefits, and vice versa. Our cost estimates are based on a complete set of direct and indirect costs. In contrast, our benefit calculations are based on incidents occurring over the past ten years and the estimated consequences of a far less-likely catastrophic event spread out over 20 years. Although serious wetlines incidents occurred before and after the study period, PHMSA believes that this ten-year period is more representative of events likely to occur over the next ten years. To account for the uncertainty in the analysis, we conducted a series of sensitivity analyses. This resulted in ranges of costs and benefits for each alternative we evaluated. For this proposal, the benefit-cost ratios range from 0.87 to 1.66 (discounted at 3%) for the 10-year compliance period for existing CTMVs. Because of the uncertainties inherent in calculating the overall benefits that would accrue and the potential for a wetlines incident to result in catastrophic consequences, we are confident that the costs associated with the proposed requirement will be more than offset by resulting benefits not quantified in this analysis, such as long-term environmental remediation and litigation costs avoided.

This NPRM has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”), and the President's memorandum on “Preemption” is published in the Federal Register on May 22, 2009 (74 FR 24693). This NPRM would preempt State, local and Indian tribe requirements, but does not propose any regulation that has 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. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. We invite State and local governments and Indian tribes to comment on the effect that adoption of proposed requirements may have on safety or environmental protection programs which we have not considered.

The Federal hazardous material transportation law, 49 U.S.C. 5101-5128, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local, and Indian tribe requirements on certain subjects. These subjects are:

(1) The designation, description, and classification of hazardous material;

(2) The packing, repacking, handling, labeling, marking, and placarding of hazardous material;

(3) The preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents;

(4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; or

(5) the design, manufacturing, fabricating, marking, maintenance, reconditioning, repairing, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material.

This NPRM addresses covered subject No. 5 and would preempt any State, local, or Indian tribe requirements not meeting the “substantively the same” standard. Federal hazardous materials transportation law provides at 49 U.S.C. 5125(b)(2) that, if the Secretary of Transportation issues a regulation concerning any of the covered subjects, the Secretary must determine and publish in the Federal Register the effective date of Federal preemption. The effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. We propose that the effective date of Federal preemption will be 90 days after the date of publication of a final rule in the Federal Register .

This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this NPRM does not have tribal implications, does not impose substantial direct compliance costs, and is not required by statute, the funding and consultation requirements of Executive Order 13175 do not apply.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities, and mandates that agencies strive to lessen any adverse effects on these businesses.

PHMSA is proposing this regulatory action because flammable liquids transported in wetlines continue to be involved in motor vehicle accidents and contribute to the fatality, injury, and damage to persons and property involved in an accident. The objective of this proposed rulemaking is to prohibit the transport of flammable liquids in wetlines unless protected against damage by bottom damage protection devices. This regulatory action is being proposed under the authority of the Federal hazardous materials transportation law (49 U.S.C. 5101 et seq. ). 49 U.S.C. 5103(b) authorizes the Secretary of Transportation to prescribe regulations for the safe transportation of hazardous materials in commerce. PHMSA does not have definitive data on the number of small entities to which this proposed regulatory action would apply but a cursory review of industries and registrants within the industries that self-identify as small business indicates a significant number of small entities. This regulatory action imposes no new reporting or recordkeeping requirement on small entities nor are we aware of any Federal program that would duplicate or conflict with this regulatory action.

PHMSA completed a regulatory flexibility analysis of the impact of this proposed rulemaking on small entities. We concluded that the NPRM has the potential to create significant economic impacts on a substantial number of small entities. However, due to patterns of CTMV ownership in affected industries, we believe many small entities will be impacted to a lesser extent than larger entities, or excepted from regulation altogether. PHMSA considered the impacts on small entities in its development of four regulatory alternatives (excluding the do nothing alternative), but we believe further accommodations would be inconsistent with the safety goal of the proposed regulation to prevent incidents involving unprotected wetlines containing flammable liquid which pose a safety hazard regardless of the size of the entity that owns or operates the CTMV. However, we believe the proposed 10-year compliance period for existing CTMVs affords small entities some flexibility in compliance by allotting a significant amount of time to small entities to retrofit their CTMVs or to acquire CTMVs that are in compliance to replace their existing fleet not in compliance. Additionally, we believe the exception from the requirements of this proposed regulatory action for wetlines on CTMVs containing no more than one liter of flammable liquid is a performance standard that also provides small entities with some flexibility in achieving compliance. Nonetheless, PHMSA has not identified any significant alternatives (i.e., technologies) that meet the statutory objectives and which minimizes any significant impact on small entities. We invite small entities to comment on alternatives that would meet the objective of this proposed regulatory action and minimize any significant impact on small entities.

The detailed small business analysis is available for review in the docket as part of the regulatory evaluation for this rulemaking. We invite comment addressing the impact that the proposals in this NPRM may have on small entities.

This proposed rule has been developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of draft rules on small entities are properly considered. DOT has notified the Small Business Administration's Chief Counsel for Advocacy (SBA) of this notice of proposed rulemaking.

This NPRM imposes no new information collection requirements.

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

This NPRM does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $141.3 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objectives of the rule.

The National Environmental Policy Act of 1969 (NEPA) requires Federal agencies to consider the consequences of major Federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. There are no significant environmental impacts associated with this NPRM. An initial environmental assessment is available in the docket.

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477) or you may visit http://www.dot.gov/privacy.html.

In consideration of the foregoing, 49 CFR chapter I is amended as follows:

The CPS FMP, which was implemented by publication of a final rule in the Federal Register on December 15, 1999 (64 FR 69888), divides management unit species into two categories: Actively managed and monitored. Harvest guidelines for actively managed species (Pacific sardine and Pacific mackerel) are based on formulas applied to current biomass estimates. Conversely, annual biomass estimates are not currently calculated for species that are classified as monitored stocks (jack mackerel, northern anchovy, and market squid).

During public meetings each year, the estimated biomass for each actively managed species within the CPS FMP is presented to the Pacific Fishery Management Council's (Council) CPS Management Team (Team), the Council's CPS Advisory Subpanel (Subpanel) and the Council's Scientific and Statistical Committee (SSC), and the biomass and the status of the fisheries are reviewed and discussed. The biomass estimate is then presented to the Council along with HG recommendations and comments from the Team, Subpanel and SSC. Following review by the Council and after hearing public comment, the Council adopts a biomass estimate and makes its HG recommendation to NMFS.

The purpose of this proposed rule is to implement the 2011 HG for Pacific sardine in the U.S. EEZ off the Pacific coast. The CPS FMP and its implementing regulations require NMFS to set an annual HG for the Pacific sardine fishery based on the annual specification framework in the FMP. This framework includes a harvest control rule that determines what the maximum HG for the current fishing season will be, based, in large part, on the estimate of stock biomass. The harvest control rule in the CPS FMP is HG = [(Biomass-Cutoff) * Fraction * Distribution] with the parameters described as follows:

1. Biomass. The estimated stock biomass of Pacific sardine age one and above for the 2011 management season is 537,173 mt.

2. Cutoff. This is the biomass level below which no commercial fishery is allowed. The FMP established this level at 150,000 mt.

3. Distribution. The portion of the Pacific sardine biomass estimated in the EEZ off the Pacific coast is 87 percent and is based on the average historical larval distribution obtained from scientific cruises and the distribution of the resource according to the logbooks of aerial fish-spotters.

4. Fraction. The harvest fraction is the percentage of the biomass above 150,000 mt that may be harvested.

At the November 2010 Council meeting, the Council adopted the 2010 Assessment of the Pacific Sardine Resource in 2010 for U.S. management in 2011 and a Pacific sardine biomass estimate of 537,173 mt. When this biomass estimate is applied to the harvest control rule for Pacific sardine in the CPS FMP, the resulting maximum HG is 50,526 mt. For the 2011 Pacific sardine fishing year, the Council recommended to NMFS a maximum HG of 50,526 mt. Similar to the action taken in 2009 and 2010, the Council also recommended that 4,200 mt of the available 2011 HG be initially reserved for fishing/research activities that would be undertaken under a potential exempted fishing permit (EFP). In 2010, 5,000 mt was subtracted from the total HG for an EFP.

The Council will hear proposals and comments on any potential EFPs at the March 2011 Council meeting, and at the April 2011 Council meeting it will make a final recommendation to NMFS on whether or not all or a portion of the 4,200 mt set-aside should be allocated for use under an EFP(s). NMFS will likely make a decision on whether to issue an EFP for Pacific sardine some time prior to the start of the second seasonal period (July 1, 2011). Any of the 4,200 mt that is not issued to an EFP will be rolled into the third allocation period's directed fishery. Any set-aside attributed to an EFP designed to be conducted during the closed fishing time in the second allocation period (prior to September 15), but not utilized, will roll into the third allocation period's directed fishery. Any set-aside attributed to an EFP designed to be conducted during closed fishing times in the third allocation, but not utilized, will not be re-allocated.

The Council also recommended that the remaining 46,326 mt (HG of 50,526 mt minus proposed 4,200 mt EFP set-aside) be used as the initial overall commercial fishing HG for Pacific sardine, and that this amount be allocated across the seasonal periods established by Amendment 11 (71 FR 36999). The Council recommended incidental catch set-asides of 1,000 mt per allocation period, and an additional management uncertainty buffer of 2,000 mt in the third period. The purpose of the incidental set-aside allotments and allowance of an incidental catch-only fishery is to allow for the restricted incidental landings of Pacific sardine in other fisheries, particularly other CPS fisheries, when a seasonal directed fishery is closed. The additional management buffer in the third period is due to difficulties associated with closing the fishery, and to help ensure that the fishery does not exceed the maximum HG.

The directed harvest levels and incidental set-aside would be initially allocated across the three seasonal allocation periods in the following way: from January 1-June 30, 15,214 mt would be allocated for directed harvest with an incidental set aside of 1,000 mt; from July 1-September 14, 17,530 mt would be allocated for directed harvest with an incidental set aside of 1,000 mt; and from September 15-December 31, 8,582 mt would be allocated for directed harvest with an incidental set aside of 1,000 mt. If during any of the seasonal allocation periods the applicable adjusted directed harvest allocation is projected to be taken, fishing would be closed to directed harvest and only incidental harvest would be allowed. For the remainder of the period, any incidental Pacific sardine landings would be counted against that period's incidental set-aside. The proposed incidental fishery would also be constrained to a 30 percent by weight incidental catch rate when Pacific sardine are landed with other CPS so as to minimize the targeting of Pacific sardine. In the event that an incidental set-aside is projected to be attained, the incidental fishery will be closed for the remainder of the period. If the set-aside is not fully attained or is exceeded in a given seasonal period, the directed harvest allocation in the following seasonal period would automatically be adjusted downward to account for the discrepancy. Additionally, if during any seasonal period the directed harvest allocation is not fully attained or is exceeded, then the following period's directed harvest total would be adjusted upward to account for this discrepancy as well.

If the total HG or these apportionment levels for Pacific sardine are reached or are expected to be reached, the Pacific sardine fishery would be closed until it re-opens either per the allocation scheme or the beginning of the next fishing season. The NMFS Southwest Regional Administrator would publish a notice in the Federal Register announcing the date of any such closure.

For the 2011 Pacific sardine fishing season the Council also recommended an overfishing limit (OFL) of 92,767 mt and an Acceptable Biological Catch (ABC) and Annual Catch Limit (ACL) of 84,681 mt. The HG proposed for the 2011 fishing season is operationally similar to an Annual Catch Target (ACT) (as defined at § 600.310(f)(2)). These reference points are in accordance with the proposed Amendment 13 to the CPS FMP on which the Council took final action on in June 2010, and that will undergo review by NMFS. The intent of Amendment 13 is to revise relevant sections of the CPS FMP to ensure they are consistent with the objectives of the revised National Standard 1 (NS1) guidelines.

Detailed information on the fishery and the stock assessment are found in the report “Assessment of Pacific Sardine Stock for U.S. Management in 2011” ( see ADDRESSES ).

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law, subject to further consideration after public comment.

These proposed specifications are exempt from review under Executive Order 12866.

An IRFA was prepared, as required by section the Regulatory Flexibility Act, 5 U.S.C. 603. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. The results of the analysis are stated below. For copies of the IRFA, and instructions on how to send comments on the IRFA, please see the ADDRESSES section above.

The purpose of this proposed rule is to implement the 2011 HG for Pacific sardine in the U.S. EEZ off the Pacific coast. The CPS FMP and its implementing regulations require NMFS to set an annual HG for the Pacific sardine fishery based on the harvest control rule in the FMP. The harvest control rule is applied to the current stock biomass estimate to derive the annual HG. The HG is determined using an environmentally-based formula accounting for the effect of ocean conditions on stock productivity.

The HG is apportioned based on the following allocation scheme: 35 percent of the HG is allocated coastwide on January 1; 40 percent of the HG, plus any portion not harvested from the initial allocation is then reallocated coastwide on July 1; and on September 15 the remaining 25 percent, plus any portion not harvested from earlier allocations will be released. If the total HG or these apportionment levels for Pacific sardine are reached at any time, the Pacific sardine fishery is closed until either it re-opens per the allocation scheme or the beginning of the next fishing season. There is no limit on the amount of catch that any single vessel can take during an allocation period or the year; the HG and seasonal allocations are available until fully utilized by the entire CPS fleet.

The small entities that would be affected by the proposed action are the vessels that compose the West Coast CPS finfish fleet. Approximately 108 vessels are permitted to operate in the sardine fishery component of the CPS fishery off the U.S. West Coast; 64 permits in the Federal CPS limited entry fishery off California (south of 39 N. lat.), and a combined 44 permits in Oregon and Washington's state Pacific sardine fisheries. The U.S. Small Business Administration defines small businesses engaged in fishing as those vessels with annual revenues of or below $4 million. The average annual per vessel revenue in 2010 for the West Coast CPS finfish fleet was well below $4 million, and all of these vessels therefore are considered small businesses under the RFA. Because each affected vessel is a small business, this proposed rule has an equal effect on all of these small entities, and therefore will impact a substantial number of these small entities in the same manner. Accordingly, there would be no economic impacts resulting from disproportionality between small and large business entities under the proposed action.

The profitability of these vessels as a result of this proposed rule is based on the average Pacific sardine ex-vessel price per mt. NMFS used average Pacific sardine ex-vessel price per mt to conduct a profitability analysis because cost data for the harvesting operations of CPS finfish vessels was unavailable.

For the 2010 fishing year, the maximum HG was set at 72,039 mt. Approximately 66,000 mt of the HG was harvested during the 2010 fishing season, with an estimated total coastwide ex-vessel value of $12.2 million. Using these figures, the 2010 ex-vessel price per mt of Pacific sardines was $185.

The proposed HG for the 2011 Pacific sardine fishing season (January 1, 2011 through December 31, 2011) is 50,526 mt. This HG is approximately 25% less than the directed fishing HG for 2010 of 68,039 mt. This decrease in HG is due to a decrease in the coastwide Pacific sardine biomass from which the HG is directly derived.

If the fleet were to take the entire 2011 HG, and using the 2010 ex-vessel average price of $185 per mt of Pacific sardine, the total potential revenue for the entire fleet would be approximately $9.3 million. This would be slightly less than the average coastwide total ex-vessel value achieved from 2001-2010 of approximately $11.5 million. There will also likely be a drop in profitability based on this rule compared to last season due the lower HG this fishing season. Whether this will occur depends greatly on market forces within the fishery, and on the regional availability of the resource to the fleets and the fleets' ability to find pure schools of Pacific sardine. A change in the market rate and/or the potential lack of availability of the resource to the fleets could cause a reduction in the amount of Pacific sardine that is harvested which, in turn, would reduce the total revenue to the fleet from Pacific sardine.

However, the revenue derived from harvesting Pacific sardine is only one factor determining the overall revenue of a majority of the CPS fleet, and therefore the economic impact to the fleet from the proposed action, can not be viewed in isolation. CPS finfish vessels typically harvest a number of other species, including anchovy, mackerel, squid, and tuna, making Pacific sardine only one component of a multi-species CPS fishery. A reliance on multiple species is a necessity because each CPS stock is highly associated to present ocean and environmental conditions. Because each species responds to such conditions in its own way, not all CPS stocks are likely to be abundant at the same time; therefore as abundance levels and markets fluctuate, the CPS fishery as a whole has endured by depending on a group of species.

No significant alternatives to this proposed rule were considered or exist that would accomplish the stated objectives of the applicable statutes, and which would minimize any significant economic impact of this proposed rule on the affected small entities. The CPS FMP and its implementing regulations require NMFS to set an annual HG for the Pacific sardine fishery based on the harvest control rule in the FMP. The harvest control rule is applied to the current stock biomass estimate to determine what the HG for that fishing season will be; as biomass increases so will the HG, conversely as biomass decreases so does the HG. The determination of the annual HG merely implements the established procedures of the FMP with the goal of continuing to provide expected net benefits to the nation, regardless of what the specific annual allowable harvest of Pacific sardine equates to.

There are no reporting, record-keeping, or other compliance requirements required by this proposed rule. Additionally, no other Federal rules duplicate, overlap or conflict with this proposed rule.

This action does not contain a collection-of-information requirement for purposes of the Paper Reduction Act.