The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive as well as a report summarizing each substantive public contact with FAA personnel concerning these proposed special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this notice between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change the proposed special conditions based on comments we receive.

If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On November 4, 2005, The Boeing Company, PO Box 3707, Seattle, WA, 98124, applied for an amendment to Type Certificate Number A20WE to include the new Model 747-8 series passenger airplane. The Model 747-8 is a derivative of the 747-400. The Model 747-8 is a four-engine jet transport airplane that will have a maximum takeoff weight of 975,000 pounds, new General Electric GEnx -2B67 engines, and the capacity to carry 605 passengers.

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 747-8 (hereafter referred as 747-8) meets the applicable provisions of part 25, Amendments 25-1 through 25-120, plus amendment 25-127 for § 25.795(a), except for earlier amendments as agreed upon by the FAA. These regulations will be incorporated into Type Certificate No. A20WE after type certification approval of the 747-8.

In addition, the certification basis includes other regulations, special conditions and exemptions that are not relevant to these proposed special conditions. Type Certificate No. A20WE will be updated to include a complete description of the certification basis for these airplanes.

If the Administrator finds that the applicable airworthiness regulations ( i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the 747-8 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model or series that incorporates the same or similar novel or unusual design feature, or should any other model or series already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model or series under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the 747-8 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

Special conditions, as defined in § 11.19, are issued under § 11.38, and become part of the type certification basis under § 21.101.

The Boeing Model 747-8 will incorporate the following novel or unusual design features: The 747-8 design offers seating capacity on two separate decks: The main deck with a maximum passenger capacity of 495 and the upper deck with a maximum passenger capacity of 110. Occupants can move between decks via a staircase located near door 2 on the main deck of the airplane in the forward part of the cabin. With large seating capacities on the main deck and upper deck of the 747-8, the stairway must be designed to support evacuation between decks of the airplane in an in-flight emergency.

The regulations governing the certification of the 747-8 do not adequately address the certification requirements for a two-deck passenger airplane. The Airbus A380-800 and all of the earlier Boeing 747 passenger airplane models were certified with seating capacity on two separate decks. When the seating capacity of the upper deck of the Boeing 747 exceeded 24 passengers, the FAA issued Special Condition No. 25-61-NW-1 for a maximum seat capacity of 32 passengers on the upper deck for take-off and landing. A second set of special conditions, Special Condition No. 25-71-NW-3, was issued to include airplanes up to a maximum seating capacity of 45 passengers on the upper deck for take-off and landing. The second set of special conditions was modified to address airplanes with a maximum seating capacity of 110 passengers on the upper deck for take-off and landing. Special Conditions No. 25-326-SC for the Airbus A380-800 allowed a seating capacity on two separate decks: The main deck with a maximum passenger capacity of 542 and the upper deck with a maximum passenger capacity of 308. Although these previously issued special conditions for the A380-800 provided a starting point for developing the 747-8 special conditions, the proposed 747-8 special conditions are specific to the unique aspects of this airplane's design.

The regulations do not adequately address a passenger airplane with separate decks for passenger occupancy, thus the FAA considers this to be a novel design. Therefore, the FAA is proposing that special conditions, in addition to the requirements of §§ 25.803 and 25.811 through 25.813, are required to address the proposed design.

As discussed above, these proposed special conditions are applicable to Boeing Model 747-8 airplanes. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design features, these proposed special conditions would apply to that model as well under the provisions of § 21.101.

This action affects only certain novel or unusual design features of the Boeing Model 747-8 airplane. It is not a rule of general applicability.

The authority citation for these Special Conditions is as follows:

Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for the Boeing 747-8 airplanes.

1. The stairway must have essentially straight route segments with a landing at each significant change in segment direction.

2. The stairway must have essentially rectangular treads.

3. With the airplane in level attitude and in each attitude resulting from the collapse of one or more legs of the landing gear, the stairway must have entrance, exit, and gradient characteristics that allow the upper deck passengers, with assistance from a crewmember, to merge with passengers on the main deck during an emergency evacuation and exit the airplane through a main deck exit. This must be shown by demonstration, tests, analysis, or any combination thereof.

4. The stairway must accommodate the carriage of an incapacitated occupant from the upper deck to the main deck. The crewmember procedures for such carriage must be established and included in the airplane flight manual.

5. The stairway must be located to provide occupants an adequate descent rate under probable emergency conditions, including a condition in which an occupant falls or is incapacitated while on the stairway.

6. The stairway must be designed and located to minimize damage to its structure during an emergency landing or ditching.

7. General illumination must be provided so, when measured along the center lines of each tread and landing, the illumination is not less than 0.05 foot-candle. This is in lieu of compliance with § 25.812(c), at Amendment 25-116.

8. Means must be provided to assist passengers in locating the stairway in dense smoke conditions as part of compliance with § 25.811(c), at Amendment 25-88.

9. An emergency exit sign meeting § 25.812(b)(1)(i), at Amendment 25-116, must be provided in the upper deck near the stairway visible to passengers approaching along the main aisle as required by § 25.811(d)(1), at Amendment 25-88.

10. Floor proximity lighting required by § 25.812(e), at Amendment 25-120, must be provided along the stairs.

11. When passengers occupy the upper deck, at least one flight attendant must also be present during taxi, take-off, and landing.

12. The stairway must have a handrail on at least one side to allow occupants to steady themselves during foreseeable conditions, including but not limited to, gear collapse on the ground and moderate turbulence in flight. The handrail(s) must be constructed so there is no obstruction on them that will cause the user to release his/her grip or hinder the continuous movement of the hands along the handrail. Handrail(s) must be terminated in a manner that will not interfere with occupants walking by or create a hazard (such as catching clothing). Boeing must demonstrate that the design can accommodate the stature of a fifth percentile female and a ninety-fifth percentile male.

13. The public address system must be intelligible in the stairway during all flight phases.

14. “No smoking” and “return to seat” signs must be installed and visible in the stairway both going up and down and at the stairway entrances.

Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2010-1232; Airspace Docket No. 10-AEA-28) and be submitted in triplicate to the Docket Management System ( see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov.

Annotators wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2010-1232; Airspace Docket No. 10-AEA-28.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded from and comments submitted through http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office ( see the ADDRESSES section for address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, room 210, 1701 Columbia Avenue, College Park, Georgia 30337.

Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.

The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to create additional Class E airspace at Waynesboro, VA to accommodate new standard instrument approach procedures developed for Eagle's Nest Airport. Class E airspace extending upward from 700 feet above the surface would be established for the safety and management of IFR operations.

Class E airspace designations are published in Paragraph 6005 of FAA order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would establish additional airspace for the Waynesboro, VA Class E airspace area.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:

Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Comments should identify both docket numbers (FAA Docket No. FAA-2010-1285; Airspace Docket No. 10-AEA-27) and be submitted in triplicate to the Docket Management System ( see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov .

Annotators wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2010-1285; Airspace Docket No. 10-AEA-27.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded from and comments submitted through http://www.regulations.gov . Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office ( see the ADDRESSES section for address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, room 210, 1701 Columbia Avenue, College Park, Georgia 30337.

Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class E airspace extending upward from 700 feet above the surface at Shenandoah Valley Regional Airport, Staunton, VA, to provide controlled airspace required to support new standard instrument approach procedures for Shenandoah Valley Regional Airport. This action is necessary for the safety and management of IFR operations at the airport.

Class E airspace designations are published in Paragraph 6005 of FAA order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would amend Class E airspace at Shenandoah Regional Valley Airport, Staunton, VA.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:

Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2011-0160; Airspace Docket No. 11-AEA-05) and be submitted in triplicate to the Docket Management System ( see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2011-0160; Airspace Docket No. 11-AEA-05.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded from and comments submitted through http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office ( see the ADDRESSES section for address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, room 210, 1701 Columbia Avenue, College Park, Georgia 30337.

Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace at Kenbridge, VA to provide controlled airspace required to support the SIAPs developed for Lunenburg County Airport. Class E airspace extending upward from 700 feet above the surface would be established for the safety and management of IFR operations.

Class E airspace designations are published in Paragraph 6005 of FAA order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would establish Class E airspace at Lunenburg County Airport, Kenbridge, VA.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:

Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2011-0116; Airspace Docket No. 11-ANE-1) and be submitted in triplicate to the Docket Management System ( see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov .

Annotators wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2011-0116; Airspace Docket No. 11-ANE-1.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded from and comments submitted through http://www.regulations.gov . Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office ( see the ADDRESSES section for address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, room 210, 1701 Columbia Avenue, College Park, Georgia 30337.

Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.

The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace at Brunswick, ME to provide airspace required to support the standard instrument approach procedures developed for the new Brunswick Executive Airport (BXM).The Brunswick Executive Airport uses the same facilities as the former Brunswick Naval Air Station (NAS). This Class E airspace, therefore, covers largely the same airspace encompassed by the controlled airspace area that was defined for the former Brunswick NAS and was removed in September 2010 upon closure of the NAS. See, 75 FR 57848, Docket No. FAA-2010-0248. This new Class E airspace extending upward from 700 feet above the surface would be established for the safety and management of IFR operations conducted to and from the new BXM airport and the new standard instrument approach procedures (SIAPs) developed for that airport.

Class E airspace designations are published in Paragraph 6005 of FAA order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would establish Class E airspace at Brunswick Executive Airport, Brunswick, ME.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:

On December 22, 2010, the Commission published in the Federal Register a notice of proposed rulemaking, in which it proposed rules, guidance, and acceptable practices, to be applicable to the designation and operation of contract markets, as well as the listing, trading, and execution of swaps on designated contract markets. 2 The notice of proposed rulemaking would implement certain provisions of sections 723, 733, and 735 of the Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). The comment period for the proposed rulemaking closed on February 22, 2011.

Since the close of the proposed rulemaking, data has been made publicly available to support the rulemaking, in particular, proposed § 38.502(a), the proposed “minimum centralized market trading percentage requirement.” Discussion of this proposed requirement is available in the notice of proposed rulemaking at pages 80588 and 80589 of the Federal Register publication. The data has been made available on the Commission's Web site at http://comments.cftc.gov/FederalRegister/Proposed.aspx?Type=ListAll&Year=2010 , the same location as the Commission's notice of proposed rulemaking. All persons wishing to comment on proposed regulation 38.502(a) (“Minimum Centralized Market Trading Percentage Requirement”), in light of the data that has been made available may do so by submitting comments using one of the methods provided above through April 18, 2011.

On July 21, 2010, President Obama signed the Dodd-Frank Act. 1 Title VII of the Dodd-Frank Act  2 amended the Commodity Exchange Act (“CEA”)  3 to establish a comprehensive new regulatory framework for swaps and security-based swaps. The legislation was enacted to reduce risk, increase transparency, and promote market integrity within the financial system by, among other things: (1) Providing for the registration and comprehensive regulation of swap dealers and major swap participants; (2) imposing clearing and trade execution requirements on standardized derivative products; (3) creating robust recordkeeping and real-time reporting regimes; and (4) enhancing the Commission's rulemaking and enforcement authorities with respect to, among others, all registered entities and intermediaries subject to the Commission's oversight. Section 747 of the Dodd-Frank Act amends section 4c(a) of the CEA to add a new section entitled “Disruptive Practices.”

The collection of information contained in this proposed regulation has been previously approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-1816.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.

Books and records relating to the collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by section 6103.

This document contains proposed amendments to the Procedure and Administration Regulations (26 CFR part 301). Section 6103(c) of the Internal Revenue Code (Code) authorizes the IRS (or an agent or contractor of the IRS) to disclose returns and return information to such person or persons as the taxpayer may designate in a request for or consent to disclosure. The proposed regulation amends § 301.6103(c)-1 by extending the period for submission to the IRS of taxpayer authorizations permitting disclosure of returns and return information to designees of a taxpayer. Specifically, the proposed regulation extends from 60 days to 120 days the period within which a signed and dated authorization must be received by the IRS (or an agent or contractor of the IRS) in order for it to be effective.

On December 18, 2009, the IRS published Notice 2010-8, 2010-3 IRB 297, which announced an intention to amend the regulation under § 301.6103(c)-1 to expand the time frame for submission of section 6103(c) authorizations. The notice additionally announced interim rules extending from 60 days to 120 days the period within which section 6103(c) authorizations must be received in order to be effective. The interim rules apply to authorizations signed and dated on or after October 19, 2009. Per Notice 2010- 8, the interim rules remain in effect until promulgation of a final regulation under section 6103(c). See § 601.601(d)(2)(ii)( d ).

The IRS recognizes the importance of limiting the effective period of authorizations provided pursuant to section 6103(c). Reasonable limitation on the effective period of written authorizations helps ensure the currency of the authorization and protects taxpayer privacy. The 60-day period allowed by the existing regulation, however, has proven problematic. Some institutions charged with assisting taxpayers in their financial dealings have encountered difficulty in obtaining written authorizations and submitting the authorizations to the IRS within the 60 days allowed by the existing regulation. To reduce the burden on taxpayers and the institutions and professionals assisting them, the IRS proposes amending the regulation under section 6103(c) to extend from 60 days to 120 days the period within which taxpayer-provided authorizations must be received by the IRS (or an agent or contractor of the IRS) in order to be effective.

This regulation, as proposed, will be effective upon publication in the Federal Register of a Treasury decision adopting this rule as a final regulation. The regulation, once effective, will apply to section 6103(c) authorizations signed on or after October 19, 2009.

Notice 2010-8, 2010-3 IRB 297, will be obsolete upon publication in the Federal Register of a Treasury decision adopting this rule as a final regulation.

It has been determined that this proposed regulation is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to this regulation. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses.

When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (5 U.S.C. chapter 6), requires the agency to “prepare and make available for public comment an initial regulatory flexibility analysis” that will “describe the impact of the proposed rule on small entities.” (5 U.S.C. 603(a)). Section 605 of the RFA provides an exception to this requirement if the agency certifies that the proposed rulemaking will not have a significant economic impact on a substantial number of small entities. It is hereby certified that the collection of information in this regulation will not have a significant economic impact on a substantial number of small entities. This certification is based upon the fact that any burden on taxpayers is minimal, since the regulation only applies to taxpayers which request or consent to the disclosure of returns or return information, and since the information collected is only that necessary to carry out the disclosure of returns or return information requested or consented to by the taxpayer (such as the name and taxpayer identification number of the taxpayer, the return or return information to be disclosed, and the identity of the designee). Moreover, it is based upon the fact that the regulation reduces the burden imposed upon taxpayers by the prior regulation by extending the period in which consents may be received by the IRS. Accordingly, a Regulatory Flexibility Analysis is not required.

Before this proposed regulation is adopted as a final regulation, consideration will be given to any written comments (a signed original and eight (8) copies) and electronic comments that are timely submitted to the IRS. The IRS and the Treasury Department request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying.

The public hearing is scheduled for Thursday, June 9, 2011 at 10 a.m., and will be held in Auditorium, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. All visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the section of this preamble titled FOR FURTHER INFORMATION CONTACT .

The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit electronic or written comments and an outline of the topics to be discussed and the time to be devoted to each topic (signed original and eight (8) copies) by Wednesday, May 18, 2011. A period of 10 minutes will be allotted to each person for the making of comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.

The principal author of this proposed regulation is Amy Mielke, Office of the Associate Chief Counsel (Procedure and Administration).

Accordingly, 26 CFR part 301 is proposed to be amended as follows:

Public Participation and Request for Comments

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-2011-0114), 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-2011-0114” 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-2011-0114” 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. But 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 .

For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact Ensign Anthony P. LaBoy at the telephone number or e-mail address indicated under the FOR FURTHER INFORMATION CONTACT section of this notice.

The Hylebos Bridge restoration involves removal of deteriorated concrete from the Hylebos Bridge and refinishing the bridge's surface. The project poses a safety risk to any vessel traffic in the vicinity below the bridge due to potential falling debris. The hydro demolition machine that will be used can remove up to 16 inches of concrete in a single pass presenting a major safety hazard to vessels, persons, or property below. This safety zone would be enforced daily from 6 a.m. until 6 p.m. from August 20, 2011 through August 22, 2011, unless canceled sooner by the Captain of the Port.

The City of Tacoma Public Works has requested a closure of the waterway to prevent property damage and/or personal injury to the maritime public during concrete removal portions of the Hylebos Bridge restoration. The Coast Guard is proposing this safety zone to ensure the safety of the maritime public during concrete removal and will do so by prohibiting any person or vessel from entering or remaining in the safety zone unless authorized by the Captain of the Port, Puget Sound or Designated Representative.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

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

The Coast Guard bases this finding on the fact that the safety zone is small in size, short in duration, and maritime traffic will be able to transit this area during times when the zone is not enforced. Maritime traffic may also request permission to transit through the zone from the Captain of the Port, Puget Sound or Designated Representative.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Hylebos Waterway from 6 a.m. until 6 p.m. from August 20, 2011 through August 22, 2011. This safety zone will not have a significant economic impact on a substantial number of small entities, because the safety zone is short in duration, is minimal in size, and maritime traffic will be allowed to transit through the safety zone with the permission of the Captain of the Port, Puget Sound or Designated Representative.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Ensign Anthony P. LaBoy at the telephone number or e-mail address indicated under the FOR FURTHER INFORMATION CONTACT section of this notice.

The Coast Guard will not retaliate against small entities that question or complain about this proposed 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 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 proposed 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 will be made available in the docket where indicated under ADDRESSES . This proposed rule involves the establishment of a safety zone. 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 section provides additional information by addressing the following questions:

When submitting comments, remember to:

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

2. Follow directions—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.

On December 18, 2006, EPA revised the 24-hour average PM 2.5 primary and secondary NAAQS from 65 micrograms per cubic meter (μg/m 3 ) to 35 μg/m 3 . Section 110(a)(1) of the CAA requires States to submit infrastructure SIPs to address a new or revised NAAQS within 3 years after promulgation of such standards, or within such shorter period as EPA may prescribe. 1 As provided by Section 110(k)(2), within 12 months of a determination that a submitted SIP is complete under 110(k)(1), the Administrator shall act on the plan. As authorized in Section 110(k)(3) of the Act, where portions of the State submittals are severable, within that 12 month period EPA may decide to approve only those severable portions of the submittals that meet the requirements of the Act. When the deficient provisions are not severable from the other submitted provisions, EPA must propose disapproval of the submittals, consistent with Section 110(k)(3) of the Act.

Section 110(a)(2) lists the elements that such new infrastructure SIPs must address, as applicable, including Section 110(a)(2)(D)(i), which pertains to interstate transport of certain emissions. On September 25, 2009, EPA issued its “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM 2.5 ) National Ambient Air Quality Standards (NAAQS)” (2009 Guidance). EPA developed the 2009 Guidance to make recommendations to States for making submissions to meet the requirements of Section 110, including 110(a)(2)(D)(i) for the revised 2006 24-hour PM 2.5 NAAQS.

As identified in the 2009 Guidance, the “good neighbor” provisions in Section 110(a)(2)(D)(i) require each State to submit a SIP that prohibits emissions that adversely affect another State in the ways contemplated in the statute. Section 110(a)(2)(D)(i) contains four distinct requirements related to the impacts of interstate transport. The SIP must prevent sources in the State from emitting pollutants in amounts which will: (1) Contribute significantly to nonattainment of the NAAQS in other States; (2) interfere with maintenance of the NAAQS in other States; (3) interfere with provisions to prevent significant deterioration of air quality in other States; or (4) interfere with efforts to protect visibility in other States.

In the 2009 Guidance, EPA indicated that SIP submissions from States pertaining to the “significant contribution” and “interfere with maintenance” requirements of Section 110(a)(2)(D)(i)(I) should contain adequate provisions to prohibit air pollutant emissions from within the State that contribute significantly to nonattainment or interfere with maintenance of the NAAQS in any other State. EPA further indicated that the State's submission should explain whether or not emissions from the State have this impact and, if so, address the impact. EPA stated that the State's conclusion should be supported by an adequate technical analysis. EPA recommended the various types of information that could be relevant to support the State SIP submission, such as information concerning emissions in the State, meteorological conditions in the State and the potentially impacted States, monitored ambient concentrations in the State, and air quality modeling. Furthermore, EPA indicated that States should address the “interfere with maintenance” requirement independently which requires an evaluation of impacts on areas of other States that are meeting the 2006 24-hour PM 2.5 NAAQS, not merely areas designated nonattainment. Lastly in the 2009 Guidance, EPA stated that States could not rely on the Clean Air Interstate Rule (CAIR) to comply with CAA Section 110(a)(2)(D)(i) requirements for the 2006 24-hour PM 2.5 NAAQS because CAIR does not address this NAAQS.

EPA promulgated the CAIR on May 12, 2005 ( see 70 FR 25162). CAIR required States to reduce emissions of sulfur dioxide and nitrogen oxides that significantly contribute to, and interfere with maintenance of the 1997 NAAQS for PM 2.5 and/or ozone in any downwind State. CAIR was intended to provide States covered by the rule with a mechanism to satisfy their CAA Section 110(a)(2)(D)(i)(I) obligations to address significant contribution to downwind nonattainment and interference with maintenance in another State with respect to the 1997 ozone and PM 2.5 NAAQS. Many States adopted the CAIR provisions and submitted SIPs to EPA to demonstrate compliance with the CAIR requirements in satisfaction of their 110(a)(2)(D)(i)(I) obligations for those two pollutants.

EPA was sued by a number of parties on various aspects of CAIR, and on July 11, 2008, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision to vacate and remand both CAIR and the associated CAIR Federal Implementation Plans (FIP) in their entirety. North Carolina v. EPA, 531 F.3d 836 (DC Cir. Jul. 11, 2008). However, in response to EPA's petition for rehearing, the Court issued an order remanding CAIR to EPA without vacating either CAIR or the CAIR FIPs. North Carolina v. EPA, 550 F.3d 1176 (DC Cir. Dec. 23, 2008). The Court thereby left CAIR in place in order to “temporarily preserve the environmental values covered by CAIR” until EPA replaces it with a rule consistent with the Court's opinion. Id. at 1178. The Court directed EPA to “remedy CAIR's flaws” consistent with its July 11, 2008, opinion, but declined to impose a schedule on EPA for completing that action. Id.

In order to address the judicial remand of CAIR, EPA has proposed a new rule to address interstate transport pursuant to Section 110(a)(2)(D)(i)(I), the “Federal Implementation Plans To Reduce Interstate Transport of Fine Particulate Matter and Ozone” (Transport Rule). 2 As part of the proposed Transport Rule, EPA specifically examined the Section 110(a)(2)(D)(i)(I) requirement that emissions from sources in a State must not “significantly contribute to nonattainment” and “interfere with maintenance” of the 2006 24-hour PM 2.5 NAAQS by other States. The modeling performed for the proposed Transport Rule shows that Kansas significantly contributes to nonattainment and interferes with maintenance of the 2006 24-hour PM 2.5 NAAQS in downwind areas. 3

On April 12, 2010, EPA received a SIP revision from the State of Kansas intended to address the requirements of Section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM 2.5 NAAQS as well as other requirements of Section 110(a)(2). In this rulemaking, EPA is addressing only the requirements that pertain to prohibiting sources in Kansas from emitting pollutants that will significantly contribute to nonattainment or interfere with maintenance of the 2006 24-hour PM 2.5 NAAQS in other States. In its submission, the State of Kansas indicated that emissions from the State do not significantly interfere with the attainment nor maintenance of the 2006 24-hour PM 2.5 NAAQS in downwind States. The submission included a description of relevant State actions intended to address the interstate transport of emissions.

On April 12, 2010, EPA received an Infrastructure SIP revision from the State of Kansas intended to address the requirements of Section 110(a)(2)(D)(i)(I) with respect to the 2006 PM 2.5 NAAQS. The portion of Kansas' submittal to address the Section 110(a)(2)(D)(i)(I) obligations indicates that the State has implemented several actions to address interstate transport with respect to the 2006 24-hour PM 2.5 NAAQS.

Kansas' submittal describes how the State believes it meets transport requirements based in part on recent controls established for SO 2 and NO X emissions from EGUs in the State. Kansas summarizes that the reductions represent a 32% reduction in the total Kansas point source NO X emissions and a 58% reduction in the total Kansas point source SO X emissions from the 2005 National Emissions Inventory (NEI). However, EPA's preliminary photochemical modeling for the proposed Transport Rule, to address 110(a)(2)(D)(i)(I), indicates that emissions from the State of Kansas significantly contribute to nonattainment and interfere with maintenance in other States with respect to the 2006 24-Hour PM 2.5 NAAQS. 4

EPA's 2009 Guidance stated that a State's SIP submission pertaining to the requirement of Section 110(a)(2)(D)(i)(I) must be supported by an adequate technical analysis. 5 EPA recommended the various types of information that could be relevant to support the State's SIP submission. While Kansas submitted a description of actions that have been implemented to reduce NO X and SO 2 emissions, the State did not further evaluate or demonstrate with a technical analysis that these measures address the requirements of 110(a)(2)(D)(i)(I) to prohibit Kansas' air pollutant emissions from significantly contributing to nonattainment or interfering with maintenance in other States. EPA believes that the documentation submitted does not address the requirements of 110(a)(2)(D)(i)(I), in part, because the submittal lacks a technical demonstration.

Based upon our evaluation, EPA is proposing that this SIP revision does not meet the requirements of 110(a)(2)(D)(i)(I) of the CAA. Therefore, EPA is proposing disapproval of the portion of Kansas' Infrastructure SIP relating to Interstate Transport, Section 110(a)(2)(D)(i)(I). The submitted provisions are severable from each other. Therefore, EPA is proposing to disapprove those provisions which relate to the Section 110(a)(2)(D)(i)(I) demonstration and will act on the remainder of the SIP submission in a subsequent rulemaking.

Also, under Section 179(a) of the CAA, final disapproval of a submittal that addresses a requirement of a Part D Plan (42 U.S.C.A. §§ 7501-7515), or is required in response to a finding of substantial inadequacy as described in section 7410(k)(5) (SIP call), starts a sanctions clock. The provisions in the submittal we are proposing to disapprove were not submitted to meet either of those requirements. Therefore, if EPA takes final action to disapprove this submittal, no sanctions will be triggered.

The full or partial disapproval of a State implementation plan revision triggers the requirement under Section 110(c) that EPA promulgate a FIP no later than 2 years from the date of the disapproval unless the State corrects the deficiency, and the Administrator approves the plan or plan revision before the Administrator promulgates such FIP. The Transport Rule FIP, if finalized in the manner proposed, may address these requirements for the State of Kansas.

We are proposing to disapprove a submission from the State of Kansas intended to demonstrate that Kansas has adequately addressed the elements of CAA Section 110(a)(2)(D)(i)(I) that require the State's SIP to contain adequate provisions to prohibit air pollutant emissions from sources within a State from significantly contributing to nonattainment in or interference with maintenance of the 2006 24-hour PM 2.5 NAAQS in any other State. We are proposing to determine that the Kansas submission does not contain adequate provisions to prohibit air pollutant emissions from within the State that significantly contribute to nonattainment in or interference with maintenance of the 2006 24-hour PM 2.5 NAAQS in other downwind States. Any remaining elements of the submittal, including language to address other CAA Section 110(a)(2) elements, including Section 110(a)(2)(D)(i)(II) regarding interference with measures required in the applicable SIP for another State designed to prevent significant deterioration of air quality and protect visibility, are not addressed in this action. EPA is proposing to disapprove only the provisions which relate to the Section 110(a)(2)(D)(i)(I) demonstration.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to act on State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law.

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq, because this proposed SIP disapproval under Section 110 and subchapter I, part D of the Clean Air Act will not in-and-of itself create any new information collection burdens but simply disapproves certain State requirements for inclusion into the SIP. Burden is defined at 5 CFR 1320.3(b).

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant impact on a substantial number of small entities. This rule does not impose any requirements or create impacts on small entities. This proposed SIP disapproval under Section 110 and subchapter I, part D of the Clean Air Act will not in-and-of itself create any new requirements but simply disapproves certain State requirements for inclusion into the SIP. Accordingly, it affords no opportunity for EPA to fashion for small entities less burdensome compliance or reporting requirements or timetables or exemptions from all or part of the rule. The fact that the Clean Air Act prescribes that various consequences ( e.g., higher offset requirements) may or will flow from this disapproval does not mean that EPA either can or must conduct a regulatory flexibility analysis for this action. Therefore, this action will not have a significant economic impact on a substantial number of small entities.

We continue to be interested in the potential impacts of this proposed rule on small entities and welcome comments on issues related to such impacts.

This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or Tribal governments or the private sector.” EPA has determined that the proposed disapproval action does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or Tribal governments in the aggregate, or to the private sector. This action proposes to disapprove pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or Tribal governments, or to the private sector, result from this action.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.”

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action merely disapproves certain State requirements for inclusion into the SIP and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. However, today's proposed disapproval does not have federalism implications. Thus, Executive Order 13132 does not apply to this action.

This action does not have Tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP EPA is proposing to disapprove would not 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. Thus, Executive Order 13175 does not apply to this action.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under Section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it because it is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997).This proposed SIP disapproval under Section 110 and subchapter I, part D of the Clean Air Act will not in-and-of itself create any new regulations but simply disapproves certain State requirements for inclusion into the SIP.

This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, Section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. The EPA believes that this action is not subject to requirements of Section 12(d) of NTTAA because application of those requirements would be inconsistent with the Clean Air Act.

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA lacks the discretionary authority to address environmental justice in this proposed action. In reviewing SIP submissions, EPA's role is to approve or disapprove State choices, based on the criteria of the Clean Air Act. Accordingly, this action merely proposes to disapprove certain State requirements for inclusion into the SIP under Section 110 and subchapter I, part D of the Clean Air Act and will not in-and-of itself create any new requirements. Accordingly, it 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.

The statutory authority for this action is provided by Sections 110 of the CAA, as amended (42 U.S.C. 7410).

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This Section provides additional information by addressing the following questions:

When submitting comments, remember to:

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

2. Follow directions—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.

On December 18, 2006, EPA revised the 24-hour average PM 2.5 primary and secondary NAAQS from 65 micrograms per cubic meter (μg/m 3 ) to 35 μg/m 3 . Section 110(a)(1) of the CAA requires states to submit infrastructure SIPs to address a new or revised NAAQS within 3 years after promulgation of such standards, or within such shorter period as EPA may prescribe. 1 As provided by Section 110(k)(2), within 12 months of a determination that a submitted SIP is complete under 110(k)(1), the Administrator shall act on the plan. As authorized in Section 110(k)(3) of the Act, where portions of the State submittals are severable, within that 12 month period EPA may decide to approve only those severable portions of the submittals that meet the requirements of the Act. When the deficient provisions are not severable from the other submitted provisions, EPA must propose disapproval of the submittals, consistent with Section 110(k)(3) of the Act.

Section 110(a)(2) lists the elements that such new infrastructure SIPs must address, as applicable, including Section 110(a)(2)(D)(i), which pertains to interstate transport of certain emissions. On September 25, 2009, EPA issued its “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM 2.5 ) National Ambient Air Quality Standards (NAAQS)” (2009 Guidance). EPA developed the 2009 Guidance to make recommendations to states for making submissions to meet the requirements of Section 110, including 110(a)(2)(D)(i) for the revised 2006 24-hour PM 2.5 NAAQS.

As identified in the 2009 Guidance, the “good neighbor” provisions in Section 110(a)(2)(D)(i) require each state to submit a SIP that prohibits emissions that adversely affect another state in the ways contemplated in the statute. Section 110(a)(2)(D)(i) contains four distinct requirements related to the impacts of interstate transport. The SIP must prevent sources in the state from emitting pollutants in amounts which will: (1) Contribute significantly to nonattainment of the NAAQS in other states; (2) interfere with maintenance of the NAAQS in other states; (3) interfere with provisions to prevent significant deterioration of air quality in other states; or (4) interfere with efforts to protect visibility in other states.

In the 2009 Guidance, EPA indicated that SIP submissions from states pertaining to the “significant contribution” and “interfere with maintenance” requirements of Section 110(a)(2)(D)(i)(I) should contain adequate provisions to prohibit air pollutant emissions from within the state that contribute significantly to nonattainment or interfere with maintenance of the NAAQS in any other state. EPA further indicated that the state's submission should explain whether or not emissions from the state have this impact and, if so, address the impact. EPA stated that the state's conclusion should be supported by an adequate technical analysis. EPA recommended the various types of information that could be relevant to support the state SIP submission, such as information concerning emissions in the state, meteorological conditions in the state and the potentially impacted states, monitored ambient concentrations in the state, and air quality modeling. Furthermore, EPA indicated that states should address the “interfere with maintenance” requirement independently which requires an evaluation of impacts on areas of other states that are meeting the 2006 24-hour PM 2.5 NAAQS, not merely areas designated nonattainment. Lastly in the 2009 Guidance, EPA stated that states could not rely on the Clean Air Interstate Rule (CAIR) to comply with CAA Section 110(a)(2)(D)(i) requirements for the 2006 24-hour PM 2.5 NAAQS because CAIR does not address this NAAQS.

EPA promulgated the CAIR on May 12, 2005, ( see 70 FR 25162). CAIR required states to reduce emissions of sulfur dioxide and nitrogen oxides that significantly contribute to, and interfere with maintenance of the 1997 NAAQS for PM 2.5 and/or ozone in any downwind state. CAIR was intended to provide states covered by the rule with a mechanism to satisfy their CAA Section 110(a)(2)(D)(i)(I) obligations to address significant contribution to downwind nonattainment and interference with maintenance in another state with respect to the 1997 ozone and PM 2.5 NAAQS. Many states adopted the CAIR provisions and submitted SIPs to EPA to demonstrate compliance with the CAIR requirements in satisfaction of their 110(a)(2)(D)(i)(I) obligations for those two pollutants.

EPA was sued by a number of parties on various aspects of CAIR, and on July 11, 2008, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision to vacate and remand both CAIR and the associated CAIR Federal Implementation Plans (FIP) in their entirety. North Carolina v. EPA, 531 F.3d 836 (D.C. Cir. Jul. 11, 2008). However, in response to EPA's petition for rehearing, the Court issued an order remanding CAIR to EPA without vacating either CAIR or the CAIR FIPs. North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. Dec. 23, 2008). The Court thereby left CAIR in place in order to “temporarily preserve the environmental values covered by CAIR” until EPA replaces it with a rule consistent with the Court's opinion. Id. at 1178. The Court directed EPA to “remedy CAIR's flaws” consistent with its July 11, 2008, opinion, but declined to impose a schedule on EPA for completing that action. Id.

In order to address the judicial remand of CAIR, EPA has proposed a new rule to address interstate transport pursuant to Section 110(a)(2)(D)(i)(I), the “Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone” (Transport Rule). 2 As part of the proposed Transport Rule, EPA specifically examined the Section 110(a)(2)(D)(i)(I) requirement that emissions from sources in a state must not “significantly contribute to nonattainment” and “interfere with maintenance” of the 2006 24-hour PM 2.5 NAAQS by other states. The modeling performed for the proposed Transport Rule shows that Missouri significantly contributes to nonattainment and interferes with maintenance of the 2006 24-hour PM 2.5 NAAQS in downwind areas. 3

On December 28, 2009, EPA received a SIP revision from the State of Missouri intended to address the requirements of Section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM 2.5 NAAQS as well as other requirements of Section 110(a)(2). In this rulemaking, EPA is addressing only the requirements that pertain to prohibiting sources in Missouri from emitting pollutants that will significantly contribute to nonattainment or interfere with maintenance of the 2006 24-hour PM 2.5 NAAQS in other states. In its submission, Missouri indicated that several actions have been implemented to address the transport of direct PM 2.5 and also PM 2.5 precursors of Nitrogen Oxides (NO X ) and Sulfur Dioxide (SO 2 ) over time. The submission included a description of and references to the relevant state rules intended to address the interstate transport of emissions.

Missouri's December 28, 2009, submittal included a description of how the state has implemented rules or is developing rules to meet various requirements to address the long-range transport of pollution. Missouri has a number of rules included in the SIP for the control of NO X and SO 2 emissions. For example, Missouri's SIP includes rules that control NO X emissions from Electric Generating Units (10 CSR 10-6.360), from Cement Kilns (10 CSR 10-6.680) and from Large Stationary Internal Combustion Engines (10 CSR 10-6.390). EPA's preliminary photochemical modeling for the proposed Transport Rule considered these rules and still indicates that emissions from the State of Missouri significantly contribute to nonattainment and interfere with maintenance in other states with respect to the 2006 24-hour PM 2.5 NAAQS. 4

EPA's 2009 Guidance stated that a state's SIP submission pertaining to the requirement of Section 110(a)(2)(D)(i)(I) must be supported by an adequate technical analysis. 5 EPA recommended the various types of information that could be relevant to support the state's SIP submission. While Missouri submitted a description of state rules that have been implemented to reduce PM 2.5 , NO X and SO 2 emissions, the state did not further evaluate or demonstrate with a technical analysis that these measures address the requirements of 110(a)(2)(D)(i)(I) to prohibit Missouri's air pollutant emissions from significantly contributing to nonattainment or interfering with maintenance in other states.

Furthermore, the state's submittal also indicates that it is meeting its 110(a)(2)(D)(i)(I) obligations with respect to the 2006 PM 2.5 NAAQS in part by virtue of its approved CAIR SIP. However, CAIR was promulgated before the 24-hour PM 2.5 NAAQS were revised in 2006 and does not address interstate transport with respect to the 2006 PM 2.5 NAAQS. 6 Thus, reliance on CAIR cannot be used to comply with Section 110(a)(2)(D)(i)(I) for the respective 2006 NAAQS. Several states recognize that some of the controls planned for or already installed on sources within the state (to meet CAIR provisions) satisfied the Section 110(a)(2)(D)(i)(I) requirements for the 2006 24-hour PM 2.5 NAAQS. However, states will not be able to permanently rely upon the emissions reductions predicted by CAIR, because CAIR was remanded to EPA and EPA is in the process of developing a Transport Rule (which it has proposed as a replacement for the remanded CAIR) to address the concerns outlined in its decision remanding CAIR. For these reasons, EPA would not be able to approve Missouri's SIP submission pertaining to the requirements under Section 110(a)(2)(D)(i)(I) because it relies, in part, on CAIR for emission reduction measures.

Based upon our evaluation, EPA is proposing that this SIP revision does not meet the requirements of 110(a)(2)(D)(i)(I) of the CAA. Therefore, EPA is proposing disapproval of the portion of Missouri's Infrastructure SIP relating to Interstate Transport, Section 110(a)(2)(D)(i)(I). The submitted provisions are severable from each other. Therefore, EPA is proposing to disapprove those provisions which relate to the Section 110(a)(2)(D)(i)(I) demonstration and will act on the remainder of the SIP submission in a subsequent rulemaking.

Also, under Section 179(a) of the CAA, final disapproval of a submittal that addresses a requirement of a Part D Plan (42 U.S.C.A. §§ 7501-7515), or is required in response to a finding of substantial inadequacy as described in section 7410(k)(5) (SIP call), starts a sanctions clock. The provisions in the submittal we are proposing to disapprove were not submitted to meet either of those requirements. Therefore, if EPA takes final action to disapprove this submittal, no sanctions will be triggered.

The full or partial disapproval of a state implementation plan revision triggers the requirement under Section 110(c) that EPA promulgate a FIP no later than 2 years from the date of the disapproval unless the state corrects the deficiency, and the Administrator approves the plan or plan revision before the Administrator promulgates such FIP. The Transport Rule FIP, if finalized in the manner proposed, may address these requirements for the State of Missouri.

We are proposing to disapprove a submission from the State of Missouri intended to demonstrate that Missouri has adequately addressed the elements of CAA Section 110(a)(2)(D)(i)(I) that require the state's SIP to contain adequate provisions to prohibit air pollutant emissions from sources within a state from significantly contributing to nonattainment in or interference with maintenance of the 2006 24-hour PM 2.5 NAAQS in any other state. We are proposing to determine that the Missouri submission does not contain adequate provisions to prohibit air pollutant emissions from within the state that significantly contribute to nonattainment in or interference with maintenance of the 2006 24-hour PM 2.5 NAAQS in other downwind states. Any remaining elements of the submittal, including language to address other CAA Section 110(a)(2) elements, including Section 110(a)(2)(D)(i)(II) regarding interference with measures required in the applicable SIP for another state designed to prevent significant deterioration of air quality and protect visibility, are not addressed in this action. EPA is proposing to disapprove only the provisions which relate to the Section 110(a)(2)(D)(i)(I) demonstration.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to act on state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law.

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., because this proposed SIP disapproval under Section 110 and subchapter I, part D of the Clean Air Act will not in-and-of itself create any new information collection burdens but simply disapproves certain State requirements for inclusion into the SIP. Burden is defined at 5 CFR 1320.3(b).

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant impact on a substantial number of small entities. This rule does not impose any requirements or create impacts on small entities. This proposed SIP disapproval under Section 110 and subchapter I, part D of the Clean Air Act will not in-and-of itself create any new requirements but simply disapproves certain state requirements for inclusion into the SIP. Accordingly, it affords no opportunity for EPA to fashion for small entities less burdensome compliance or reporting requirements or timetables or exemptions from all or part of the rule. The fact that the Clean Air Act prescribes that various consequences (e.g., higher offset requirements) may or will flow from this disapproval does not mean that EPA either can or must conduct a regulatory flexibility analysis for this action. Therefore, this action will not have a significant economic impact on a substantial number of small entities.

We continue to be interested in the potential impacts of this proposed rule on small entities and welcome comments on issues related to such impacts.

This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or the private sector. EPA has determined that the proposed disapproval action does not include a Federal mandate that may result in estimated costs of $100 million or more to either state, local, or tribal governments in the aggregate, or to the private sector. This action proposes to disapprove pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, result from this action.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.”

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action merely disapproves certain state requirements for inclusion into the SIP and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. However, today's proposed disapproval does not have federalism implications. Thus, Executive Order 13132 does not apply to this action.

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP EPA is proposing to disapprove would not 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. Thus, Executive Order 13175 does not apply to this action.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under Section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). This proposed SIP disapproval under Section 110 and subchapter I, part D of the Clean Air Act will not in-and-of itself create any new regulations but simply disapproves certain state requirements for inclusion into the SIP.

This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, Section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

The EPA believes that this action is not subject to requirements of Section 12(d) of NTTAA because application of those requirements would be inconsistent with the Clean Air Act.

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA lacks the discretionary authority to address environmental justice in this proposed action. In reviewing SIP submissions, EPA's role is to approve or disapprove state choices, based on the criteria of the Clean Air Act. Accordingly, this action merely proposes to disapproves certain state requirements for inclusion into the SIP under Section 110 and subchapter I, part D of the Clean Air Act and will not in-and-of itself create any new requirements. Accordingly, it 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.

The statutory authority for this action is provided by Sections 110 of the CAA, as amended (42 U.S.C. 7410).

This document concerns the delegation of unchanged NESHAP to the Maricopa County Air Quality Department, and the Santa Barbara County Air Pollution Control District. In the Rules and Regulations section of this Federal Register , EPA is amending regulations to reflect the current delegation status of NESHAP in Arizona and California. EPA is taking direct final action without prior proposal because the Agency believes this action is not controversial. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in a subsequent action based on this proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.

EPA extending its comment period for feedback on the design of its retrospective review plan under Executive Order 13563 to April 4, 2011. To assist you in focusing your comments or recommendations, EPA has provided various categories relating to issue/impact, program area, or a multipurpose general area. These categories are not intended to restrict the issues that you may wish to address. The following list provides the category of each docket. If you wish to submit comments, please select one of the appropriate dockets listed below or send by mail as described in the ADDRESSES section above.

Submit a comment on “Improving Regulations: Integration and Innovation” at docket # EPA-HQ-OA-2011-0161.

Submit a comment related to “Improving Regulations: EJ, Children & Elderly” at docket # EPA-HQ-OA-2011-0168.

Submit a comment on “Improving Regulations: Science/Obsolete/Technology Outdated” at docket # EPA-HQ-OA-2011-0162.

Submit a comment related to “Improving Regulations: State, Local and Tribal governments” at docket # EPA-HQ-OA-2011-0163.

Provide comment on “Improving Regulations: Least Burden/Flexible Approaches” at docket # EPA-HQ-OA-2011-0165.

Submit a comment related to benefits and costs in “Improving Regulations: Benefits and Costs” at docket # EPA-HQ-OA-2011-0158.

Submit a comment related to “Improving Regulations: Small Business” at docket # EPA-HQ-OA-2011-0164.

Submit a comment related to “Improving Regulations: Compliance” at docket # EPA-HQ-OA-2011-0166.

Submit a comment about “Improving Regulations: Economic Conditions/Market” at docket # EPA-HQ-OA-2011-0167.

Submit a comment about “Improving Regulations: Air” at docket # EPA-HQ-OA-2011-0155.

Submit a comment about “Improving Regulations: Pesticides” at docket # EPA-HQ-OA-2011-0157.

Submit a comment about “Improving Regulations: Toxic Substances” at docket # EPA-HQ-OA-2011-0159.

Submit a comment about “Improving Regulations: Waste” at docket # EPA-HQ-OA-2011-0160.

Submit a comment about “Improving Regulations: Water” at docket # EPA-HQ-OA-2011-0154.

• Pertains to more than one issue/impact and/or program area.

• Doesn't relate to any of the other docket categories listed in this section.

EPA welcomes comment and feedback from all parties on the issues listed herein. The Agency is collecting this information for its planning purposes and is not bound to further action or response. All submissions will be made publically available on http://www.regulations.gov.

This Notice of Proposed Rulemaking is published under the authority granted to the Secretary of Health and Human Services by section 644(c) of the Head Start Act, as amended by the Improving Head Start for School Readiness Act of 2007, as well as sections 645(a)(1)(A) and 645A(c) of the Act.

The Head Start Act provides for a period of at least 30 days for public comment. In making any modifications to this Notice of Proposed Rulemaking, we will not consider comments received beyond the 30-day comment period. To make sure your comments are fully addressed, we suggest the following:

• Be specific rather than general;

• Address only issues raised by the proposed rule;

• Explain reasons for any objections or recommended changes;

• Propose specific alternative language, as appropriate; and

• Reference the specific section of the proposed rule being addressed.

The Head Start program is a national program that promotes school readiness of low-income children by enhancing their cognitive, social, and emotional development through the provision of health, educational, nutritional, social, and other services that are determined, based on family needs assessments, to be necessary.

The Head Start program provides grants to local public and private non-profit and for-profit agencies to provide comprehensive child development services to economically disadvantaged children and families, with a special focus on helping preschoolers develop the skills they need to be successful in school. In FY 1995, the Early Head Start program was established to serve families of economically disadvantaged children from birth to three years of age and pregnant women from such families in recognition of the mounting evidence that the earliest years matter a great deal to children's growth and development.

On December 12, 2007, the President signed the Improving Head Start for School Readiness Act of 2007, Public Law 110-134. The law reauthorized the Head Start program through September 30, 2012, and built on the program's many successes. The reauthorization addressed the needs of children and families by focusing efforts on building increased systems of accountability, improving quality, and expanding program access. The 2007 reauthorization also made several changes to the eligibility criteria and related policies for participation in Head Start and Early Head Start programs described in Section 645 and 645A of the Act. The Act included homeless children as a category of individuals who are deemed to be from low-income families and therefore categorically eligible for enrollment in Head Start and Early Head Start, but who were not included explicitly in the previous version of the Act. Homeless children are among the most disadvantaged children in the country. Since the reauthorization, grantees have been informed of these changes through a Program Instruction and various policy clarifications related to categories of individuals that are categorically eligible and the definition of homeless child to be used to determine eligibility. However, the current regulations do not specify how agencies are required to verify or certify that a child is homeless.

The proposed revisions to 45 CFR 1305.2 and 1305.4 directly respond to the findings of a recent investigation by the Government Accountability Office (GAO) that the Head Start program is at risk of having over-income children enrolled while legitimate under-income and categorically eligible children are put on wait lists. GAO presented its preliminary results about its ongoing investigation in testimony entitled, “Head Start: Undercover Testing Finds Fraud and Abuse at Selected Head Start Centers” before the House Education and Labor Committee on May 18, 2010, which is available at: http://www.gao.gov/new.items/d10733t.pdf. GAO published its final report on September 28, 2010, which reiterated many of the findings disclosed in the May testimony and discussed new findings related to specific fraud allegations at two Head Start grantees. This report is available at: ; http://www.gao.gov/products/GAO-10-1049.

Specifically, in its investigation, GAO followed up on received allegations of fraud and abuse involving two Head Start grantees, including that Head Start centers allegedly manipulated recorded income to make over-income applicants appear under-income; encouraged families to report that they were homeless when they were not; enrolled more than 10 percent of over-income children allowed by the Head Start Act; and counted children as enrolled in more than one center at a time. In its final report, GAO states that it was able to substantiate that “children were enrolled in both the grantee and delegate sites,” indicating that the grantee did not comply with the Head Start requirement to report an unduplicated count of its funded enrollment numbers. After further investigation of the programs alleged to have enrolled ineligible children by designating them as “homeless,” GAO was unable to substantiate the fraud claim because not all of the records reviewed contained sufficient information to determine whether a given family was homeless. However, GAO noted that the lack of requirements related to verifying and documenting a child's homeless status raised concerns about the risk of fraud in the Head Start program.

In order to ascertain if this type of fraud was occurring at other Head Start centers, GAO attempted to register fictitious children as part of 15 undercover test scenarios at centers in six States and the District of Columbia. GAO found that in eight instances, staff at the Head Start centers fraudulently misrepresented information, including disregarding part of the families' income to register over-income children into under-income slots. The undercover tests revealed that seven Head Start employees lied about applicants' employment status or misrepresented their earnings. GAO concluded that “this leaves Head Start at risk that over-income children may be enrolled while legitimate under-income children are put on wait lists.” GAO also noted that “at no point during our registrations was information submitted by GAO's fictitious parents verified, leaving the program at risk that dishonest persons could falsify earnings statements and other documents in order to qualify.”

Upon learning of GAO's investigation, we immediately took numerous actions within our statutory and regulatory authority to respond to GAO's findings and to bolster program integrity efforts across the Head Start and Early Head Start programs; prevent future fraud and mismanagement; and ensure that every slot is reserved for an eligible child. For example, ACF issued a Program Instruction on May 10, 2010, entitled, “Income Eligibility for Enrollment” (ACF-PI-HS-10-01), which reminds grantees of their legal obligations to verify the eligibility of each child served and determine eligibility in accordance with the Head Start statute and regulations, as well as the serious consequences for falsifying eligibility determinations. The Program Instruction is available at: http://eclkc.ohs.acf.hhs.gov/hslc/Program%20Design%20and%20Management/Head%20Start%20Requirements/PIs/2010/resour_pri_002_051010.html. On May 17, 2010, the Secretary of HHS, Kathleen Sebelius, sent a letter to every Head Start and Early Head Start grantee in the country to underscore the serious nature of GAO's allegations and notify them that HHS is intensifying its oversight and enforcement actions. This letter is available at: http://www.hhs.gov/news/press/2010pres/05/head_start_letter.html. We also have begun to conduct more unannounced monitoring visits to Head Start grantees; have created a Web-based “hotline” that will allow those with information of impropriety of any kind to report directly to the Secretary of HHS; have begun to increase oversight and reviews of programs with identified risk factors; and will continue to use our authority to suspend or terminate grantees where pervasive fraud or misuse of funds is found.

However, we believe GAO's findings necessitate the implementation of new enrollment procedures, as proposed by this regulation, in order to reiterate and strengthen the requirements. Therefore, we are proposing new requirements for Head Start and Early Head Start agency staff regarding verification, documentation, and certification of the information submitted by the applicants prior to determining if a pregnant woman or child is eligible for participation in a Head Start or Early Head Start program. This proposed regulation will ensure that taxpayer dollars are spent in conformance with the purpose and requirements of the Head Start Act and that the neediest children and families in our country benefit from the program's services. The purpose of the program, as stated in section 636 of the Head Start Act, is to “promote the school readiness of low-income children” and provide “low-income children and their families of health, educational, nutritional, social, and other services that are determined, based on family needs assessments, to be necessary.” As stated in sections 645 and 645A of the Head Start Act and Part 1305 of the current Head Start regulations, the eligibility requirements of the program require that, with limited exceptions, participants must be either “income eligible,” meaning the pregnant woman or family's income is equal to, or less than, the income guidelines (the “official poverty line”) or “categorically eligible,” meaning that the individuals are eligible for participation in a Head Start or Early Head Start program even if the income of the pregnant woman or family exceeds the income guidelines due to being a member of one of the specific categories of individuals authorized under the Act and current regulations—being eligible for public assistance; being a homeless child; or being a child in foster care. While the Head Start Act provides authority for grantees to enroll a certain portion of pregnant women and children who are not income or categorically eligible, the statute nonetheless makes clear that the primary target populations for the Head Start and Early Head Start programs are low-income and categorically eligible children and their families, and, in the case of Early Head Start, low-income pregnant women. Therefore, most of the enrollment slots are reserved for pregnant women and children who are income or categorically eligible.

In particular, we believe GAO's findings regarding the apparent fraudulent enrollment of ineligible children in Head Start slots that are reserved for children who are income and categorically eligible necessitate the implementation of new enrollment procedures to ensure eligible children receive Head Start services in a timely fashion and to prevent harm resulting from being denied access to these services. In the case of Head Start, if an eligible child misses all or a part of the year of Head Start services because an ineligible child is enrolled in a slot intended for the eligible child, the eligible child suffers real harm by being deprived of an essential educational experience needed to prepare him or her for success in elementary school. In the case of Early Head Start, if an eligible infant or toddler misses all or a part of the year of Early Head Start services, the child suffers harm by being denied participation in a program that has been shown by research to help children perform significantly better on a range of measures of cognitive, language, and social-emotional development than those in a randomly assigned control group and potentially to reduce the risk of poor cognitive, language, and school outcomes later on in life.

GAO identified the lack of verification requirements as a concern related to enrollment fraud as they found evidence that “Head Start staff encouraged parents to report that they were homeless when they were not in order to qualify them for the program.” Therefore, we believe it is essential to issue this proposed rule to prevent cases of fraud in which staff intentionally enroll children based on being homeless, despite knowing they are ineligible. Specifically, this proposed regulation reflects the status of homeless children as categorically eligible for participation in Head Start and Early Head Start in order to conform to the Head Start Act and specifies how agency staff must verify, certify, and document in a child's record how they explored a claim by a child's parent, guardian, or other person(s) seeking services for the child who has knowledge of the family's situation that the child is homeless.

We note that since GAO's findings were released, we have kept the Head Start grantee community, Congress, and the general public apprised of our increased focus on program integrity and our planned changes in operating procedures. In addition, these proposed requirements would place a minimal burden on grantees. For example, this proposed regulation would add a requirement for grantees to maintain source documents in each child and pregnant woman's record; grantees already are required to review these source documents for the purposes of income eligibility determination, so the proposed new requirement would be to review source documents for categorical eligibility, as well as maintain copies of all source documents used to determine eligibility in each pregnant woman and child's eligibility determination record.

As discussed, the findings of a recent investigation by GAO identified weaknesses in existing eligibility verification and documentation requirements that allegedly resulted in the enrollment of ineligible children. The proposed revisions to § 1305.2 and § 1305.4 are intended to reiterate and strengthen Head Start and Early Head Start agency procedures for determining eligibility for program enrollment, including procedures to verify, certify, and document such eligibility, and eliminate such weaknesses. In addition, the regulation proposes to create a new requirement for pregnant women and parents, guardians, or other person(s) seeking services for the child who have knowledge of the family's situation to certify that they have submitted factual and accurate documents to be used to verify their eligibility. The regulation proposes to create new requirements for program staff who make the eligibility determination to certify that the information relied on in making the decision is accurate to the best of his or her knowledge. The regulation proposes to initiate new requirements for agencies to establish policies describing the actions that will be taken against agency staff who intentionally violate Federal and agency eligibility determination regulations, policies, and procedures. The regulation also proposes new requirements for agencies to provide training related to eligibility requirements and the legal consequences of committing fraud. The proposed revisions also change the definitions of “Head Start eligible,” “income guidelines,” and “low-income family” and add a definition of “homeless children” to conform to statutory requirements and provisions.

Note that we use the term “we” throughout the regulatory text and preamble. The term “we” means the Secretary of the Department of Health and Human Services in consultation with the Assistant Secretary for Children and Families and other officials within the Department. Likewise, the term “Act” refers to the Head Start Act, as amended.

This regulation proposes to modify the definitions of “Head Start eligible,” “income guidelines,” and “low-income family” to comply with statutory requirements and provisions. The current definitions contain outdated information regarding eligibility guidelines and/or incorrect statutory citations that we believe must be updated in order to ensure all grantees have correct and clear information related to participant eligibility and enrollment. Otherwise, the Head Start program will be vulnerable to incorrect eligibility and enrollment determinations. To provide clarification for grantees, we also propose to add the definition of “homeless children” as paragraph (i) from section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), which was added as a definition in section 637(11) of the Head Start Act in the 2007 reauthorization, and to redesignate the subsequent definitions accordingly.

The current definition of “Head Start eligible” states that: “A child that meets the requirements for age and family income as established in this regulation or, if applicable, as established by grantees that meet the requirements of section 645(a)(2) of the Head Start Act. Up to 10 percent of the children enrolled may be from families that exceed the low-income guidelines. Indian Tribes meeting the conditions specified in 45 CFR 1305.4(b)(3) are excepted from this limitation.” This definition does not reflect current statutory eligibility requirements. For example, the rule that “up to 10 percent of the children enrolled may be from families that exceed the low-income guidelines” was changed when the 2007 reauthorization created several other eligibility provisions. In addition, the definition does not include “Early Head Start” in the lead-in language. Therefore, the new definition of “Head Start and Early Head Start eligible” at § 1305.2(g) is proposed to read as follows: “Head Start or Early Head Start eligible means a pregnant woman or child who meets the requirements for age and family income or categorical eligibility or, if applicable, the requirements established by a grantee under section 645(a)(2) of the Head Start Act or by a Head Start program operated by an Indian Tribe under 45 CFR § 1305.4(d).”

As indicated, we propose to add a definition in § 1305.2 of “homeless children.” The 2007 reauthorization expanded eligibility to include homeless children as categorically eligible for participation in Head Start. The definition of “homeless children” also was added to section 637(11) of the Head Start Act, which states that “[t]he term “homeless children” has the meaning given the term “homeless children and youth” in section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)).” To improve clarity for grantees and enable them to have the necessary references related to eligibility determination in one regulation, we propose to include a definition of “homeless children” based on the McKinney-Vento Homeless Assistance Act as § 1305.2(i) to mean individuals who lack a fixed, regular, and adequate nighttime residence (within the meaning of 42 U.S.C. 11302(a)(1)); and include (i) children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placement; (ii) children and youths who have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings (within the meaning of 42 U.S.C. 11302(a)(2)(C)); (iii) children and youths who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and (iv) migratory children (as such term is defined in 20 U.S.C. 6399) who qualify as homeless for the purposes of this part because the children are living in circumstances described in paragraphs (i) through (iii).

The current definition of “income guidelines” at § 1305.2(j) references an outdated section of the Head Start Act. The current definition defines “income guidelines” as “the official poverty line specified in section 652 of the Head Start Act.” However, the official poverty line in the Act now is referenced in the definitions section (section 637(19)) of the Head Start Act. Therefore, we propose to update § 1305.2(j) to reference the correct Head Start Act citation and to redesignate it as paragraph (k). The proposed new definition of income guidelines at § 1305.2(k) means the official poverty line specified in section 637(19) of the Head Start Act. The U.S. Department of Health and Human Services publishes the income guidelines each year in the Federal Register ; they also are available at http://aspe.hhs.gov/poverty/.

The current definition of “low-income family” at § 1305.2(l) states that low- income family means a family whose total annual income before taxes is equal to, or less than, the income guidelines. The definition also states that, for the purpose of eligibility, a child from a family that is eligible for public assistance or a child in foster care is eligible even if the family income exceeds the income guidelines. Public assistance and foster care, as well as being a homeless child, are classified as the three types of “categorical eligibility” that are authorized by current statute and regulations and further specified in this regulation. We propose to remove the public assistance and foster care categories of recipients currently included in the definition of “low-income family” to prevent confusion and mistakes because agencies are not required to verify family income in these cases. We also propose to redesignate paragraph (l) as paragraph (m). The proposed definition of “low-income family” at § 1305.2(m) only refers to eligibility based on the income guidelines and reads as follows: “Low-income family means a family whose total income before taxes is equal to, or less than, the income guidelines.”

In order to update and strengthen the content of § 1305.4 related to determining, verifying, and documenting Head Start and Early Head Start program eligibility consistent with the changes made through the 2007 reauthorization of the Head Start Act, we propose to revise the heading of § 1305.4, “Age of child and family income eligibility” to read “Determining, verifying, and documenting eligibility.”

Because the current regulations regarding eligibility were updated last on March 16, 1998, prior to the 2007 reauthorization of the Head Start Act, these proposed revisions represent the full scope of actions Head Start and Early Head Start agencies are required now by statute to undertake related to determining participant eligibility. We propose to revise § 1305.4 to incorporate the new income eligibility criteria added in the 2007 reauthorization. These proposed determination requirements are described in paragraphs (a) through (d). We believe that the lack of updated and accurate descriptions of eligibility criteria in the current regulations otherwise would contribute to confusion and enrollment determination errors by Head Start and Early Head Start programs.

The current regulations require programs to verify family income (§ 1305.4(c)); identify which documents should be reviewed (§ 1305.4(d)); and establish rules under which an agency must maintain a signed statement by an employee that identifies which documents were examined and stating the child is eligible (§ 1305.4(e)). The current regulations only specify that income eligibility based on having income below the Federal poverty line, has to be verified and do not require that copies of documentation be maintained in the agency records. We believe that the lack of clear up-to-date rules governing eligibility determination, verification, certification, and documentation requirements in the current regulations exposes the Head Start and Early Head Start programs to an unacceptable risk of fraud, as revealed by GAO's investigation.

Therefore, as detailed later in this preamble, in paragraphs (e) to (g), we describe proposed requirements for agency staff to verify income and categorical eligibility and propose specific instructions about the required certification and documentation steps program staff must take. In paragraph (g), the regulation proposes new requirements for pregnant women and person(s) seeking services for individual children to certify that the documents and information that they provided concerning eligibility are accurate to the best of their knowledge, as well as a new requirement for the program staff persons who made the eligibility determination also to certify that the information on eligibility in the file is accurate to the best of their knowledge. Paragraph (g) also proposes to add new requirements related to documentation to ensure that agency staff maintains eligibility determination records for each pregnant woman or child, including copies of all documents submitted by a pregnant woman or persons seeking services on behalf of a child to the program relating to the pregnant woman's or child's eligibility for services and any staff member's notes recording any other information related to eligibility received from any source; documentation establishing that an agency staff member verified the accuracy of the information on eligibility; a record of the category under which the pregnant woman or child was determined eligible; and the required beneficiary and staff certifications. Additionally, paragraph (g) explains the retention and access requirements related to eligibility determination records.

In paragraph (h) we propose a new requirement that all Head Start and Early Head Start agencies must establish policies and procedures describing the actions that will be taken against agency staff who commit intentional violations of Federal and agency eligibility determination requirements, including enrolling pregnant women and children who staff have not documented as eligible to participate in the program.

In paragraph (i), we propose to extend current regulatory training requirements at § 1304.52(l) to specify that such training for all governing body, policy council, management and those staff members who have the responsibility to make eligibility determinations must include an explanation of the legal consequences of committing fraud and information on methods for obtaining facts necessary for complete and accurate eligibility determinations.

Specifically, proposed paragraph (a) reflects the statutory requirements at section 638 of the Act regarding age eligibility for participation in the Head Start program. Following the statute, we begin paragraph (a) by noting the exception stated in section 645(a)(2) of the Head Start Act, which authorizes qualifying communities to develop their own eligibility criteria within statutory limits. Section 645(a)(2) applies to a Head Start program that is operated in a community with a population of 1,000 or less individuals and the following conditions apply: There is no other preschool program in the community; the community is located in a medically underserved area, as designated by the Secretary pursuant to section 330(b)(3) of the Public Health Service Act [42 U.S.C. 254c(b)(3)], and is located in a health professional shortage area, as designated by the Secretary pursuant to section 332(a)(1) of such Act [42 U.S.C. 254e(a)(1)]; the community is in a location which, by reason of remoteness, does not permit reasonable access to preschool and medical services; and not less than 50 percent of the families to be served in the community are eligible under the eligibility criteria established by the Secretary under paragraph in section 645(a)(1) of the Act. A Head Start program in such a locality is required to establish the eligibility criteria to be used, except that no child residing in such community whose family is eligible under such eligibility criteria shall, by virtue of regular eligibility criteria, be denied an opportunity to participate in such program.

Section 645A(c) of the Act provides that to be eligible for participation in Early Head Start programs, an individual must be a pregnant woman or a child under the age of three. Section 645(a)(5)(A) of the Act provides that children who are at least three years old through the age of compulsory school attendance are age eligible for participation in Head Start programs. The current regulations at § 1305.4(a) describe age eligibility requirements as follows: “To be eligible for Head Start services, a child must be at least three years old by the date used to determine eligibility for public school in the community in which the Head Start program is located, except in cases where the Head Start program's approved grant provides specific authority to serve younger children. Examples of such exceptions are programs serving children of migrant families and Early Head Start programs.” However, the paragraph is outdated and needs to be changed in order to reflect current statutory provisions. We believe the lack of thorough and clear descriptions of age eligibility criteria could contribute to confusion and enrollment mistakes by Head Start and Early Head Start programs as they respond to the new verification procedures proposed through this regulation. In addition, in order to clarify which age eligibility requirements apply to Early Head Start participation versus those that apply to Head Start participation, we propose to create two paragraphs to distinguish the different age eligibility requirements for each program.

Since the current paragraph (a) does not refer to the specific age eligibility requirements for Early Head Start programs, we propose in paragraph (a)(1)(i) that to be eligible for Early Head Start services, “a child must be an infant or toddler between the ages of zero and three years old.” Current paragraph (a) also does not refer to the age eligibility of pregnant women. Therefore, we propose to add a provision in (a)(1)(ii) to specify that a pregnant woman may be any age in order to be eligible for enrollment in an Early Head Start program.

In proposed paragraph (a)(2), we primarily state the same eligibility requirements currently found in paragraph (a). Specifically, proposed (a)(2) states that “To be age eligible for Head Start services, a child must be at least three years old by the date used to determine eligibility for public school in the community in which the Head Start program is located and not older than the age of required school attendance, except in cases where the Head Start program's approved grant provides specific authority to serve younger children. Examples of such exceptions are programs serving children of migrant and seasonal farmworker families.” The date to be used for age determination remains the same as the current regulation. We propose to remove the current exception of Early Head Start programs since we now explain the Early Head Start requirements separately in proposed paragraph (a)(1). We also propose to add reference to “seasonal farmworker families” to reflect statutory terminology.

Under proposed paragraph (b)(1), we describe the statutory income eligibility requirements found in section 645(a)(1) of the Act. As described above with regard to paragraph (a), we begin proposed paragraph (b) with the exception stated in section 645(a)(2) of the Head Start Act, which authorizes qualifying communities to develop their own eligibility criteria. Proposed paragraph (b)(1) reflects the requirements for Head Start and Early Head Start eligibility that pregnant women and age eligible children from low-income families shall be eligible for participation in Head Start and Early Head Start programs.

Proposed paragraph (b)(2) reflects the new statutory authority at section 645(a)(1)(B)(iii)(I) established by the 2007 reauthorization of the Head Start Act. This paragraph explains that to a reasonable extent, but not to exceed 10 percent of participants, participants may include age eligible children and pregnant women in the area served who would benefit from Head Start or Early Head Start programs, but who are not eligible under paragraphs (b)(1) or (c) [income or categorically eligible]. In order to conform to the new statutory authority that was provided in section 645(a)(1)(B)(iii)(I) through the 2007 reauthorization, we reiterate in proposed paragraph (b) that programs may enroll pregnant women or children from over-income families “in the area served who would benefit from such programs.”

Proposed paragraph (b)(3) reflects the new statutory authority at section 645(a)(1)(B)(iii)(II) established by the 2007 reauthorization of the Head Start Act. This paragraph explains that from the area served, programs may enroll an additional 35 percent of participants beyond the 10 percent eligible under proposed paragraph (b)(2) that are pregnant women and age eligible children whose families have incomes over 100 percent but below 130 percent of the income guidelines, who do not satisfy the eligibility requirements described under paragraphs (b)(1) or (c) [income or categorically eligible]. We are reiterating the provision in this proposed rule to conform to the new statutory authority that was provided through the 2007 reauthorization.

Proposed paragraph (b)(3)(i) specifies that agencies that choose to serve individuals eligible under this paragraph must establish and implement outreach, prioritization, and enrollment policies and procedures that ensure they are meeting the needs of children and pregnant women eligible based on being a member of a low-income family, as defined in this proposed rule, and enrolling at least 10 percent of children with disabilities who are eligible under proposed paragraph (b)(2), prior to serving the pregnant women and children from families with incomes over 100 percent to 130 percent of the income guidelines.

In order to align the Head Start regulations with the Act, proposed paragraph (b)(3)(ii) also references the annual reporting requirements stated in section 645(a)(1)(B)(iv) of the Act for agencies that choose to serve additional children and pregnant women per the authority granted at section 645(a)(1)(B)(iii)(II) of the Act. The 2007 reauthorization added the reporting requirement under section 645(a)(1)(B)(iv) for all Head Start and Early Head Start agencies that serve additional pregnant women and children under section 645(a)(1)(B)(iii)(II) to document how the grantees enrolling additional over-income children are meeting the needs of children from low-income families, homeless children, children in foster care, and pregnant women and children from families eligible for public assistance, as well as to document that they have implemented outreach and enrollment policies and procedures that ensure the agency is enrolling at least 10 percent of children with disabilities prior to serving children from families with incomes over 100 percent and under 130 percent of the income guidelines.

Proposed paragraph (c) describes the three types of categorical eligibility for Head Start and Early Head Start based on section 645(a)(1)(B)(i) and (ii) of the Act and 45 CFR 1305.4(l).

The first proposed type of categorical eligibility reiterates the eligibility condition stated in section 645(a)(1)(B)(i) of the Act that a child is eligible if the child's family is “eligible or, in the absence of child care, would potentially be eligible for public assistance.” In addition, children and pregnant women are eligible under the proposed regulation for Early Head Start based on section 645A(c) of the Head Start Act, which makes the eligibility criteria in section 645(a)(1) of the Act applicable to the enrollment of children and pregnant women in Early Head Start programs. As provided in policy guidance, TANF and SSI are the only two programs that are considered as public assistance for determining Head Start Eligibility.

The second proposed type of categorical eligibility specifies that a homeless child is eligible for participation, as stated in section 645(a)(1)(B)(ii) of the Act. Section 645A(c) of the Head Start Act makes the eligibility criteria in section 645(a)(1) of the Act applicable to the enrollment of children and pregnant women in Early Head Start programs. As described earlier, the 2007 reauthorization added the provision stating that homeless children are categorically eligible for participation in Head Start. The definition of “homeless children” also was added to section 637(11) of the Head Start Act, which states that “[t]he term “homeless children” has the meaning given the term “homeless children and youth” in section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)).” As stated previously, we propose to add this definition of “homeless children” to § 1305.2(i) to improve clarity for grantees.

The third type of categorical eligibility proposes that children in foster care are eligible for participation, which already is specified in the current definition of “low-income family” in § 1305.2(l) (proposed to be redesignated as § 1305.2(m)). It has been longstanding Head Start policy for foster children to be eligible for participation in Head Start, without regard to their foster family's income. We propose in paragraph (c) to add a reference to the regulatory definition of foster care used for Federal child welfare programs to this Head Start rule to enable grantees to conduct the eligibility determination process accurately and consistently. We propose to reference 45 CFR 1355.20(a), which defines foster care to mean “24-hour substitute care for children placed away from their parents or guardians and for whom the State agency has placement and care responsibility. This includes, but is not limited to, placements in foster family homes, foster homes of relatives, group homes, emergency shelters, residential facilities, child care institutions, and preadoptive homes. A child is in foster care in accordance with this definition regardless of whether the foster care facility is licensed and payments are made by the State or local agency for the care of the child, whether adoption subsidy payments are being made prior to the finalization of an adoption, or whether there is Federal matching of any payments that are made.”

In summary, proposed paragraph (c) provides that pregnant women and age eligible children are categorically eligible for enrollment in Head Start and Early Head Start if: (1) The pregnant woman or the child's family is eligible or, in the absence of child care, would potentially be eligible for public assistance; (2) the child is homeless, as defined in § 1305.2(i); or (3) the child is in foster care.

In proposed paragraph (d), we move the requirements and procedures related to the special income eligibility rules governing Indian Tribes that are reflected currently in § 1305.4(b)(3) and (4) to proposed paragraph (d)(1) through (5). The current paragraph only includes references to income eligibility based on the low-income guidelines, but does not include references to categorical eligibility. Therefore, we also propose to update this paragraph to conform to the statutory authority.

Under the proposed paragraph, a Head Start or Early Head Start program operated by an Indian Tribe may enroll more than 10 percent of its children from families whose incomes exceed the low-income guidelines or are not categorically eligible when:

• All children from Indian and non-Indian families living on the reservation that meet the low-income guidelines or are categorically eligible who wish to be enrolled in the program are served by the program;

• All children from income-eligible or categorically-eligible Indian families native to the reservation living in non-reservation areas, approved as part of the Tribe's service area, who wish to be enrolled in the program are served by the program. In those instances in which the non-reservation area is not served by another Head Start or Early Head Start program, the Tribe must serve all of the income-eligible and categorically-eligible Indian and non-Indian children whose families wish to enroll them in the program prior to serving over-income children;

• The Tribe has the resources within its grant or from other non-Federal sources to enroll children from families whose incomes exceed the low-income guidelines or are not categorically eligible without using additional funds from HHS intended to expand Head Start or Early Head Start services; and

• At least 51 percent of the children to be served by the program are from families that meet the income-eligibility guidelines or are categorically eligible.

Proposed paragraph (d)(5) maintains the content from current § 1305.4(b)(4), but updates the reference in this provision from paragraph (b)(3) to paragraph (d). The paragraph proposes that programs which meet the conditions of paragraph (d) must annually set criteria that are approved by the Policy Council and the Tribal Council for selecting over-income children who would benefit from such a program.

Proposed paragraph (e) would establish requirements for family income to be verified before a child or pregnant woman is determined to be eligible for Head Start or Early Head Start participation based on being a member of a low-income family. We propose adding these income verification requirements to respond to GAO's findings and concerns related to the lack of requirements in many programs to verify, document, and maintain records. This proposed income verification process would reduce the risk GAO cited whereby “dishonest persons could falsify earnings statements and other documents in order to qualify.” This responds directly to GAO's recommendation that we establish “more stringent income verification requirements, documentation requirements, or both by Head Start employees responsible for certifying family eligibility, such as maintaining income documentation provided by the applicant ( e.g., pay stubs or W-2s).” Moreover, we have communicated to the public and to grantees on several occasions that we would be addressing GAO's findings by strengthening our verification requirements. For example, Secretary Sebelius provided notice to all grantees through her May 17, 2010 letter that we would be developing new regulations “that will address verification requirements.”

Proposed paragraph (e) incorporates the current regulatory requirement related to income verification in § 1305.4(c), which requires that family income must be verified by the Head Start or Early Head Start program before determining that a child is eligible based on income guidelines. We propose to continue the longstanding requirement that family income must be verified prior to determining eligibility for enrollment in a Head Start or Early Head Start program. As defined in proposed § 1305.2(b), the term “enrollment” means “the official acceptance of a family by a Head Start program and the completion of all procedures necessary for a child and family to begin receiving services.”

Paragraph (e) proposes a new requirement related to a pregnant woman's or family's declaration that the pregnant woman or family has no income. Currently, there are no regulations that specify what actions agencies should take when a pregnant woman or a child's parent, guardian, or other person(s) seeking services for the child who has knowledge of the family's finances states that the pregnant woman or family has no income to report. We recognize the difficulty Head Start and Early Head Start agencies face in obtaining documentation supporting a declaration that an individual has no income. Therefore, in such cases when a pregnant woman or family reports having no income and submits no documentation proving that the pregnant woman or family has no income, proposed paragraph (e) would require agency staff to document that they explored a pregnant woman or family's declaration that they have no income. For example, programs should gather as much relevant information as possible about the pregnant woman or family; i.e., the location, living arrangements, employment situation, etc. of the pregnant woman or family to make as informed a judgment as possible about the pregnant woman or family's eligibility status. Agencies may examine and maintain documentation representing relevant evidence of a pregnant woman or family's low-income status, such as receipt of Supplemental Nutrition Assistance Program (SNAP) or Medicaid benefits, or any other evidence of public or private assistance by which a family with children is meeting its ongoing needs for food, housing, and health care.

Accordingly, under proposed paragraph (e), before a child or pregnant woman is determined to be eligible on the basis of family income, the pregnant woman or the child's parent, guardian, or other person(s) seeking services for the child who has knowledge of the family's finances must submit information to the program concerning the family's income. Under the proposed rule, verification must include examination of documents, such as individual income tax forms, W-2 forms, pay stubs, pay envelopes, or written statements from employers (if individual income tax forms, W-2 forms, pay stubs, or pay envelopes are not available). Income would be required to be compared to the poverty guidelines for the appropriate size of family, and program staff would need to document whether a pregnant woman or child's family qualifies as a low-income family under the income guidelines for the appropriate size of family. Under the proposed rule, when appropriate, in cases in which no documentation regarding the income eligibility of the pregnant woman or child has been received by the agency, or when it is either more efficient or reliable to do so rather than to search for eligibility documentation, programs could seek information from third parties who have first-hand knowledge about the pregnant woman's or child's eligibility, and document the names, titles, and relationship to the applicant in the participant's record. Programs also could seek third party information in cases where documents are not submitted to prove a claim that a pregnant woman or family has no income. We believe all applicants must be given the opportunity to withhold consent related to each third party the program would like to contact. Therefore, we propose that if programs plan to seek third party verification from one or more entities regarding an applicant's eligibility, staff must inform the applicant about each entity that they intend to contact and have the applicant sign a consent form permitting the program to contact each of the specified third parties; this would provide applicants the opportunity to withhold their consent for third party verification from one or more entities. If applicants do not sign the consent form, the Head Start program would not be allowed to contact that entity and the applicant would remain responsible for providing appropriate documentation. We also propose that when programs contact third parties, they should limit the information discussed and questions posed to the third party to the information necessary to obtain the required eligibility information. Programs should be especially sensitive to any potential domestic violence issues prior to seeking verification of the required eligibility information.

In paragraph (f), we propose to require agencies to verify and document categorical eligibility before a pregnant woman or child is determined to be eligible for Head Start or Early Head Start participation. We propose to require the pregnant woman or the child's parent, guardian or other person(s) seeking services for the child who has knowledge of the family's situation to submit information to the program concerning the family's categorical eligibility. As proposed, verification of categorical eligibility by the program must include examination of the relevant documents submitted by the pregnant woman or family for the relevant type of categorical eligibility, as described below. If a pregnant woman or child could qualify for Head Start or Early Head Start participation based on more than one eligibility criterion, then the program should enroll the child under the criterion that is easiest to verify and document; it would not be necessary to verify and document multiple eligibility criteria.

The first requirement in proposed paragraph (f)(1) addresses categorical eligibility based on eligibility for public assistance. This proposal aligns with the requirement currently at § 1305.4(d), which specifies that verification of family income “must include examination of * * * documentation showing current status as recipients of public assistance.” Under proposed paragraph (f)(1), we require agency staff to examine any official documents submitted for the purpose of demonstrating that the pregnant woman, the child, or child's parent or guardian, is eligible or, in the absence of child care, would potentially be eligible for public assistance. Based on Federal Head Start grantee monitoring experience, we are aware that some agencies already have developed policies and procedures, or practices, for verifying public assistance eligibility or receipt status. Since the substance of this proposed requirement is based on current practice by many grantees, we do not believe this would impose a large burden.

Under proposed paragraph (f), in cases in which a child is in foster care, we add a new requirement for agency staff to review a copy of a court order, other legal or government-issued document, or a statement of a State, Tribal, or local child welfare official demonstrating the child is in foster care. The current regulations do not require agencies to verify or document foster care status. Based on Federal Head Start grantee monitoring experience, we are aware that some agencies already have developed policies and procedures, or practices, for verifying foster care status through their collaborations with local child welfare agencies. Since the substance of this requirement is based on current practice by many grantees, we do not believe this proposed requirement would impose a large burden.

Proposed paragraph (f) also adds a new provision to address cases when documents are not submitted to provide evidence of a child's status as homeless. Under proposed paragraph (f)(3), in lieu of other source documents, the program could substitute a written statement of a program staff member certifying that he or she has made reasonable effort to confirm a declaration by the parent, guardian, or other person(s) seeking services for the child that the child is a “homeless child,” as defined in § 1305.2(i). As stated previously, the 2007 reauthorization added homeless children as a category of individuals that are categorically eligible for enrollment. The current regulations do not specify how agencies should verify that a child is homeless. We believe it is essential for program integrity, especially in light of GAO's recent investigation into allegations that grantees enrolled children who were known by agency staff not to be homeless, to require that homelessness must be verified, and documentation must be maintained in the agency's files (as described in proposed paragraph (g)), in order to prevent cases of fraud in which staff intentionally enroll children based on being homeless despite knowing they are not. We recognize that obtaining verification and documentation of the circumstances that fall within the Federal definition of homeless children can present unique challenges to Head Start and Early Head Start agencies and to vulnerable families. We would encourage agencies to enroll homeless children based on the families' description of their living situation, if that description meets the definition and documentation is not readily available. Statements that describe the living situation also could be accepted from family members and other individuals that are cohabitating temporarily with the family. As proposed, verification of circumstances and collection of documents should be obtained within a reasonable timeframe. In order to verify homelessness, we would encourage grantees to conduct the following types of efforts: Engage their school district homeless liaisons, private and public shelter providers, HUD Continuums of Care, and other homeless service agencies in their service area to assist in the verification and documentation process. We also would urge agencies to exercise care to ensure that their verification activities do not increase the risk that families may be evicted or suffer other resulting adverse consequences. In addition, we would urge agencies to ensure that these efforts do not impose barriers to the enrollment and participation of homeless children in Head Start programs, an important goal expressed in the Head Start Act.

Paragraph (f) proposes that, before a child or pregnant woman is determined to be eligible on the basis of categorical eligibility, the pregnant woman or the child's parent, guardian, or other person(s) seeking services for the child who has knowledge of the family's situation must provide the program with: (1) A copy of official documents demonstrating current eligibility or receipt of public assistance benefits or services by the pregnant woman's or the child's family; (2) a copy of the court order or other legal or government-issued document or statement of government child welfare official demonstrating the child is in foster care; or (3) a copy of any other source document that establishes categorical eligibility. Under the proposal, in place of the foregoing documents, the program could substitute a written statement of a program staff member certifying that the staff member has made reasonable efforts to confirm a child is homeless, as defined in proposed § 1305.2(i). The lack of documentation of homelessness should not be a barrier to enrollment. Under the proposal, when appropriate, in cases in which no documentation regarding the income eligibility of the pregnant woman or child has been received by the agency, or when it is either more efficient or reliable to do so rather than to search for eligibility documentation, programs could seek information from third parties who have first-hand knowledge about the pregnant woman's or child's eligibility, and document the names, titles, and relationship to the applicant in the participant's record. As proposed, programs also could seek third party information in cases where documents are not submitted to prove a claim that a pregnant woman or family has no income. We propose that if programs plan to seek third party verification from one or more entities regarding an applicant's eligibility, staff must inform the applicant about each entity that they intend to contact. In addition, the applicant would be required to sign a consent form permitting the program to contact specified third parties; this would provide applicants the opportunity to withhold their consent for third party verification from one or more entities. An applicant must be given the opportunity to withhold consent related to each entity the program would like to contact. If applicants do not sign the consent form the Head Start program could not contact that entity and the applicant would remain responsible for providing appropriate documentation. We propose that when programs contact third parties, they should limit the information discussed and questions posed to the third party to the information necessary to obtain the required eligibility information. Programs should be especially sensitive to any potential domestic violence issues prior to seeking verification of the required eligibility information.

In proposed paragraph (g), we strengthen and supplement current regulatory requirements related to eligibility certification and documentation to respond to GAO's finding that “the lack of documentation made it virtually impossible to determine whether only under-income children were enrolled in spots reserved for under-income children” and its recommendations that we establish “more stringent income verification requirements, documentation requirements, or both by Head Start employees responsible for certifying family eligibility, such as maintaining income documentation provided by the applicant ( e.g., pay stubs or W-2s).” As previously mentioned, current regulations require a signed statement by an employee of the Head Start program, identifying which documents were examined and stating that the child is eligible to participate in the program, but do not require staff to maintain copies of the documents.

First, this proposed paragraph requires all Head Start and Early Head Start programs to keep an eligibility determination record for each child or pregnant woman as part of the record maintained by the agency on that individual. Proposed paragraph (g)(1) requires this record to include copies of all documents submitted by a pregnant woman or persons seeking services on behalf of a child to the program by such persons or other persons relating to the pregnant woman's or child's eligibility for services and any staff member's notes recording any other information related to eligibility received from any source.

Proposed paragraph (g)(2) requires the record to include a copy of the statements and documents required under proposed paragraphs (e) and (f) (related to income and categorical eligibility). Based on Federal Head Start grantee monitoring experience, we are aware that some agencies already have developed policies and procedures, or practices, for maintaining copies of documents verified during eligibility determination. Since the substance of this requirement is based on current practice by some grantees, we do not believe this proposed requirement would impose a large burden.

Proposed paragraph (g)(3) requires that the record also includes a signed and dated statement by the person seeking services, i.e., the pregnant woman or the child's parent, guardian, or other person seeking services for the child who has knowledge of the family's situation that “the documents and information that the person provided concerning eligibility are accurate to the best of the person's knowledge.”

Proposed paragraph (g)(4) requires the record to include documentation establishing that an agency staff member has sought to verify the accuracy of the information on eligibility provided to the agency by: (i) Conducting an in-person interview with the pregnant woman or the child's parent, guardian, or other person seeking services for the child who has knowledge of the family's situation; and (ii) when appropriate, in cases in which no documentation regarding the income eligibility of the pregnant woman or the child's family or regarding the categorical eligibility of the child based on being homeless has been received by the agency, or when it is either more efficient or reliable to do so rather than to search for eligibility documentation, seeking information from third parties who have first-hand knowledge about the pregnant woman's or child's eligibility, whose names, titles, and affiliations would be recorded in the record. If programs seek third party verification regarding an applicant's eligibility, the record would be required to include the applicant's signed consent form permitting the program to contact each particular third party, as required under proposed paragraphs (e) and (f).

Proposed paragraph (g)(5) requires the eligibility determination record to include documentation of the specific eligibility criterion under which the child or pregnant woman was determined eligible for participation. As stated above, under the proposed rule, if a pregnant woman or child could qualify for Head Start or Early Head Start participation based on more than one eligibility criterion, then the program should enroll the child under the criterion that is easiest to verify and document; it would not be necessary to verify and document multiple eligibility criteria. This includes a record of the income level or relevant eligibility category, as addressed in proposed paragraphs (b) and (c). The first criterion under which the child or pregnant woman could be determined eligible is based on having income below the income guideline for the family size, with the family size used documented, as described in proposed paragraph (b). The second criterion under which the child or pregnant woman could be determined eligible is whether the child's family or pregnant woman is eligible or, in the absence of child care, would potentially be eligible for public assistance, as described in proposed paragraph (c)(1). The third criterion, as stated in proposed paragraph (c)(2), is based on being a homeless child, as defined in proposed § 1305.2(i). The record also would need to include the provision of proposed § 1305.2(i) under which the child was determined to be homeless. The fourth criterion is whether the child is in foster care, as proposed in paragraph (c)(3). The fifth criterion, as proposed in paragraph (b)(2), is being a pregnant woman or child in the area served who would benefit from such programs but who is not eligible otherwise for services (total enrollment in this category not to exceed 10 percent of the enrollment slots). The sixth criterion under which the pregnant woman or child could be determined eligible, which is described in proposed paragraph (b)(3), is whether the pregnant woman or child's family has income over 100 percent to 130 percent of the income guidelines (total enrollment in this category not to exceed 35 percent of the enrollment slots, in addition to any slots filled under paragraph (b)(2)). The final proposed criterion under which the pregnant woman or child could be determined eligible is whether the pregnant woman or child meets alternative eligibility criteria as permitted under § 1305.4(d) or section 645(a)(2) of the Act.

Proposed paragraph (g)(6) also adds a new Head Start staff certification requirement in direct response to GAO's aforementioned recommendation to establish “more stringent income verification requirements, documentation requirements, or both by Head Start employees responsible for certifying family eligibility.” The proposed paragraph requires the record to include a signed and dated statement by the program staff person who made the eligibility determination certifying that the information on eligibility in the file is accurate to the best of the person's knowledge, and based on that information, the person has determined the pregnant woman or child to be eligible for services.

Finally, proposed paragraph (g)(7) specifies the record retention and access requirements for the documents and certifications maintained in each child and pregnant woman's record under this paragraph. These record retention and access practices must be consistent with section 647 of the Head Start Act and the uniform administrative requirement regulations regarding HHS grant awards implemented at 45 CFR 74.53 for awards and subawards to institutions of higher education, hospitals, other nonprofit organizations, and commercial organizations and 45 CFR 92.42 for grants and cooperative agreements to State, local, and Tribal governments. Among other requirements, Section 647 states that all grant recipients to “keep such records as the Secretary shall prescribe” and provide “access for the purpose of audit and examination to any books, documents, papers, and records of the recipients that are pertinent to the financial assistance received” under the Head Start Act. A key requirement explained in both 45 CFR 74.53 and 92.42 is that documents shall be retained for a period of three years. Additionally, both of these sections state requirements related to the right of access by the HHS awarding agency, the U.S. Comptroller General, or any of their authorized representatives, to any pertinent books, documents, papers, or other records of recipients in order to make audits, examinations, excerpts, transcripts and copies of such documents. We have included a reference to these longstanding Departmental policies in order to respond to GAO's concerns that agencies were not required to maintain documents related to enrollment. This requirement will ensure that documents and certifications required to be maintained under this paragraph are retained for the appropriate amount of time and are accessible to the Office of Head Start and other Federal agencies, such as the HHS Inspector General and the GAO, as needed for monitoring, audit, investigative, and other purposes.

Proposed paragraph (h) addresses the establishment of agency policies regarding violation of eligibility determination regulations, policies, and procedures. Under this paragraph, we propose that all Head Start and Early Head Start agencies must establish policies and procedures describing the actions that will be taken against agency staff who commit intentional violations of Federal and agency eligibility determination regulations, policies and procedures including enrolling children and pregnant women who staff have not documented as eligible to participate in the program. We believe this proposed requirement is necessary in order to prevent future incidents of fraud like those found in the GAO investigation and to make clear to all agency staff the legal consequences of intentionally committing enrollment fraud.

Proposed paragraph (i), “Training,” requires that all Head Start and Early Head Start agencies train all governing body, policy council, management and those staff members who have the responsibility to make participant eligibility determinations on Federal and agency eligibility regulations, policies, and procedures, including verification, certification, and documentation requirements. The requirements in proposed paragraph (i) are an extension of current requirements stated at § 1304.50(g)(1) that grantee and delegate agencies must have written policies that define the roles and responsibilities of the governing body members and inform them of the management procedures and functions necessary to implement a high-quality program. They also would expand on current requirements stated at § 1304.52(l) that the training and development requirements that grantee and delegate agencies must implement, including to provide an orientation to new staff, consultants, and volunteers; provide training or orientation to Head Start and Early Head Start governing body members; and provide orientation and ongoing training to Head Start and Early Head Start Policy Council and Policy Committee members to enable them to carry out their program governance responsibilities effectively.

We have communicated to the public and to grantees on several occasions that we would be addressing GAO's findings by strengthening our training requirements. For example, we told GAO after it shared its investigation findings that we would “make sure that grantee staff received training regarding the proper way to validate income documentation;” this assurance was documented and shared publicly in GAO's May 18, 2010 testimony in the section entitled “Corrective Action Briefing.” In addition, Secretary Sebelius provided notice to all grantees through her May 17, 2010 letter that we would be developing new regulations to address “staff training on eligibility criteria and procedures.”

Proposed paragraph (i) specifies that the training must be conducted within 30 days following the effective date of this final rule, and within 30 days of hiring or beginning of tenure of new governing body, policy council, management and those staff members who have the responsibility to make participant eligibility determinations. We propose to require agencies to develop policies regarding how often such training would be provided after the initial training to ensure that governing body, policy council, management and those staff members who have the responsibility to make participant eligibility determinations are aware of all current eligibility determination regulations, policies and procedures. The National Center on Program Management and Fiscal Operations will be developing training assistance on this topic to assist grantees.

We propose to require the training to include explanations of the legal consequences for individuals and agencies that commit fraud related to eligibility determinations, including by intentionally enrolling children or pregnant women that they know are ineligible. Examples of legal consequences to be explained during training include the disallowance of the agency's Head Start or Early Head Start funds; the determination of deficiencies through the monitoring review process; the suspension or termination of the grant; or individual consequences for the staff involved who intentionally commit fraud. We also would require such training to address methods and strategies for obtaining facts necessary for complete and accurate eligibility determinations. These methods and strategies would need to address treating families with dignity and respect and give due regard for possible issues of domestic violence, stigma, and privacy. We propose to require all agencies to maintain ongoing records of training sessions. Examples of information that would need to be documented include: The dates sessions were conducted, instructor names and titles, and attendee names.

This proposed rule establishes new information collection requirements in § 1305.4(b), (e), (f), and (g). As required by the Paperwork Reduction Act of 1995, codified at 44 U.S.C. 3507, the Administration for Children and Families will submit a copy of these sections to the Office of Management and Budget (OMB) for review and they will not be effective until they have been approved and assigned a clearance number.

We estimate the costs of implementing these proposed requirements would be approximately $132,188 annually. We calculated this estimate by multiplying the average hourly salary for family services coordinators ($20.59) by the estimated total burden hours (6,420).

With respect to these provisions, the Administration for Children and Families will consider comment by the public on this collection of information in the following areas:

• Evaluating whether the proposed collection is necessary for the proper performance of the functions of ACF, including whether the information will have practical utility;

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

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

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

OMB is required to make a decision concerning the collection of information contained in this proposed regulation between 30 and 60 days after publication of this document in the Federal Register . Therefore, a comment is best assured of having its full effect if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment to the Department on the regulations. Written comments to OMB for the proposed information collection should be sent directly to the following: Office of Management and Budget, either by fax to 202-395-6974 or by e-mail to OIRA at submission@omb.eop.gov. Please mark faxes and e-mails to the attention of the desk officer for ACF.

The Secretary certifies that, under 5 U.S.C. 605(b), as enacted by the Regulatory Flexibility Act (Pub. L. 96-354), this proposed rule will not result in a significant economic impact on a substantial number of small entities. This proposed rule primarily is intended to ensure accountability for Federal funds consistent with the purposes of the Head Start Act and is not duplicative of other requirements. We believe this proposed rule implements the aims of the Head Start Act, as amended, to improve the effectiveness of Head Start programs while preserving the ability of Head Start grantees to continue using creativity and innovation to promote the school readiness of low-income children.

Specifically, as noted under the Paperwork Reduction Act section of this preamble, we estimate the cost of implementing the proposed new reporting requirements would be approximately $132,188 annually, which when applied to all 1,600 grantees nationally, results in a cost per grantee of less than $85. In developing this estimate, we assumed that each of the 1,600 Head Start and Early Head Start grantees would spend an additional four hours beyond what they spend currently to conduct the proposed new eligibility verification, certification, and documentation procedures, as required by paragraphs (e) through (g). Included in our estimated annual costs are the minimal costs incurred by those grantees that choose to serve additional pregnant women and children per the authority granted at section 645(a)(1)(B)(iii)(II) of the Head Start Act, and therefore would be required to comply with the annual reporting requirements described in section 645(a)(1)(B)(iv) of the Head Start Act and paragraph (b)(3)(ii) of this proposed rule. Since no grantees have taken the opportunity to serve additional pregnant women and children per the authority granted at section 645(a)(1)(B)(iii)(II) of the Head Start Act to date, our reasonable expectation is that approximately 10 grantees per year might choose to use this authority in the future, at a total estimated cost of $412 per year.

We request public comments on whether we have adequately considered all costs for small entities.

Executive Order 12866 requires that regulations be reviewed to ensure that they are consistent with the priorities and principles set forth in the Executive Order. The Department has determined that this Notice of Proposed Rulemaking is consistent with these priorities and principles. These regulations incorporate statutory changes to the Head Start program enacted in the Improving Head Start for School Readiness Act of 2007 and strengthen procedures to determine, verify, certify, and maintain records regarding eligibility for Head Start and Early Head Start program enrollment. We have consulted with the Office of Management and Budget (OMB) and determined that these proposed rules meet the criteria for a significant regulatory action under E.O. 12866.

ACF does not believe there would be a significant economic impact from this proposed regulatory action. Based on our estimate described under the Paperwork Reduction Act section of this preamble, the total cost would fall well below the $100 million threshold. The estimated total cost of implementation of these rules for all grantees is approximately $132,188 annually.

Section 202 of the Unfunded Mandates Reform Act of 1995 requires that a covered agency prepare a budgetary impact statement before promulgating a rule that includes any Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If an agency must prepare a budgetary impact statement, section 205 requires that it select the most cost-effective and least burdensome alternative that achieves the objectives of the rule consistent with the statutory requirements. Section 203 requires a plan for informing and advising any small government that may be significantly or uniquely impacted. The Department has determined that this proposed rule would not impose a mandate that will result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year.

This regulation is not a major rule as defined in 5 U.S.C. Chapter 8.

Executive Order 13132, Federalism, requires that Federal agencies consult with State and local government officials in the development of regulatory policies with federalism implications. This proposed rule will not have substantial direct impact on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

Section 654 of the Treasury and General Government Appropriations Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, HHS has concluded that it is not necessary to prepare a Family Policymaking Assessment.

For the reasons set forth in the preamble, we propose to amend Part 1305 of 45 CFR Chapter XIII as follows:

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 11-29, adopted February 18, 2011, and released February 23, 2011. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC, 20554. This document will also be available via ECFS ( http://www.fcc.gov/cgb/ecfs/ ). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) This document may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-478-3160 or via e-mail http://www.BCPIWEB.com. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts (other than ex parte presentations exempt under 47 CFR 1.1204(a)) are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1208 for rules governing restricted proceedings.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

This is a summary of document FCC 11-36, adopted March 2, 2011 and released March 3, 2011. The full text is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC, 20554. These documents will also be available via ECFS ( http://www.fcc.gov/cgb/ecfs/ ). Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat. The complete text may be purchased from the Commission's copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

This document contains proposed information collection requirements. As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission invites the general public and other Federal agencies to comment on the following information collection(s). Public and agency comments are due May 17, 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; and (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. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

OMB Control Number: 3060-xxxx.

Title: Video Description of Video Programming.

Form Number: N/A.

Type of Review: New collection.

Respondents: Individuals or households; Businesses or other for-profit entities; Not-for-profit institutions.

Number of Respondents and Responses: 76 respondents; 80 responses.

Estimated Time per Response: 1-5 hours.

Frequency of Response: On occasion reporting requirement.

Obligation to Respond: Voluntary and required to obtain or retain benefits. The statutory authority for this collection of information is contained in 47 U.S.C. 613(f).

Total Annual Burden: 144 hours.

Total Annual Costs: $26,250.

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.

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.

Needs and Uses: The Commission is seeking approval for this proposed information collection from the Office of Management and Budget (OMB). On March 3, 2011, the Commission released a Notice of Proposed Rulemaking, MB Docket No. 11-43; FCC 11-36. This rulemaking proposed information collection requirements that support the Commission's video description rules that would be codified at 47 CFR 79.3, as required by the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”). In 2000, the Commission adopted rules requiring certain broadcasters and multichannel video program distributors (MVPDs) to carry programming with video description. The United States Court of Appeals for the District of Columbia Circuit vacated the rules due to insufficient authority soon after their initial adoption. The CVAA directs the Commission to reinstate those rules, with certain modifications, on October 8, 2011.

The proposed information collection requirements consist of:

Petitions for exemption based on “economic burden.”

Pursuant to proposed 47 CFR 79.3(d), a video programming provider may petition the Commission for a full or partial exemption from the video description requirements based upon a showing that they would be economically burdensome.

Petitions for exemption must by filed with the Commission, placed on Public Notice, and be subject to comment from the public.

Complaints alleging violations of the video description rules.

Section 79.3(e) of the proposed rules provides that a complaint alleging a violation of the video description rules may be transmitted to the Commission by “any reasonable means” that would best accommodate the complainant's disability, and that each complaint must include:

The name and address of the complainant;

The name and address of the broadcast station against whom the complaint is alleged and its call letters and network affiliation, or the name and address of the MVPD against whom the complaint is alleged and the name of the network that provides the programming that is the subject of the complaint;

A statement of facts sufficient to show that the video programming distributor has violated or is violating the Commission's rules, and, if applicable, the date and time of the alleged violation;

The specific relief or satisfaction sought by the complainant;

The complainant's preferred format or method of response to the complaint (such as letter, facsimile transmission, telephone (voice/TRS/TTY), Internet e-mail, or some other method that would best accommodate the complainant's disability); and

A certification that the complainant attempted in good faith to resolve the dispute with the broadcast station or MVPD against whom the complaint is alleged.

The Commission is seeking OMB approval for the proposed information collection requirements.

1. In compliance with the recently enacted Twenty-First Century Communications and Video Accessibility Act of 2010 (the “Communications and Video Accessibility Act” or “CVAA”), 1 the Notice of Proposed Rulemaking (“ NPRM” ) proposes and seeks comment on reinstatement of the video description rules adopted by the Commission in 2000. The CVAA directs us to “reinstate [our] video description regulations” with certain modifications. 2 “Video description,” sometimes referred to as “audio description,” which is the insertion of audio narrated descriptions of a television program's key visual elements into natural pauses in the program's dialogue, 3 makes video programming more accessible to individuals who are blind or visually impaired. The United States Court of Appeals for the District of Columbia Circuit vacated the Commission's video description rules due to insufficient authority soon after their initial adoption. 4 The CVAA now directs the Commission to reinstate those rules with certain modifications. 5 We anticipate that the revised and reinstated rules will afford better access to television programs for individuals who are blind or visually impaired, enabling millions more Americans to enjoy the benefits of television service and participate more fully in the cultural and civic life of the nation.

2. The Commission's rules required large-market broadcast affiliates of the top four national networks and multichannel video programming distributors (“MVPDs”) with more than 50,000 subscribers to provide video description. 6 Covered broadcasters were required to provide 50 hours of video-described prime time or children's programming, per quarter, and covered MVPDs were required to provide the same number of hours on each of the five most popular nonbroadcast networks. 7 The rules also required that all network-affiliated broadcasters (commercial or non-commercial) and all MVPDs pass through any video description provided with programming they carried, to the extent that they are technically capable of doing so. 8 As required under the CVAA, we propose to reinstate these rules, with the modifications required by the law, on October 8, 2011, and to require broadcast stations and MVPDs subject to our rules to begin providing the requisite number of hours of programming with video description beginning in the first quarter of 2012.

3. We seek comment on the modifications to the rules required by the CVAA. Notably, these modifications include the exemption of “live or near-live” programming from the rules. We seek comment on the definition of “near-live,” and propose that programs produced within 24 hours of their first airing be considered “near-live” under the rules. We also seek information about the number of hours of non-exempt programming provided by the top nonbroadcast programming networks to enable us to identify which networks will be subject to our rules.

4. In 1996, at Congress's direction, the Commission issued a report on the use of video description in video programming. 9 In 2000, the Commission adopted rules requiring certain broadcasters and MVPDs to carry programming with video description. 10 The Commission found that the record demonstrated the importance of video description, stating, for example, that

Five months after the rules went into effect, they were vacated by the United States Court of Appeals for the District of Columbia Circuit on the ground that the Commission lacked sufficient authority to promulgate video description rules. 12 Nonetheless, some broadcast and nonbroadcast networks have voluntarily continued to provide this important service; for instance, CBS, Fox, PBS, TCM, and TNT all provide description of selected programming. We commend these networks and all others that are voluntarily offering described programming, for recognizing the importance of video description to the members of their audiences who are blind or visually impaired.

5. On October 8, 2010, President Obama signed the CVAA, 13 which increases the access of persons with disabilities to modern communications services and technologies and gives the Commission express authority to adopt video description rules. The statute directs the Commission, as an initial step, to reinstate the previously adopted video description rules, with certain modifications. 14 To fulfill our statutory mandate, we begin the process with requests for comment in this Notice of Proposed Rulemaking. The CVAA imposes other requirements with respect to video description. For example, we are required to submit a report within two years of phasing in the reinstated rules, discussing the status, benefits, and costs of video description on television and Internet-provided video programming. 15 We must file a second report, nine years after the enactment of the CVAA, that provides a detailed review of the video description market and the potential need for expansion of the description mandates. 16 The CVAA also gives us authority to expand the video description hour requirements and the number of markets in which broadcasters are required to provide description if we determine that the benefits of televised description outweigh its costs. 17 We will address these additional requirements and potential expansions in a separate proceeding.

6. Section 713(f)(1) of the Communications Act, as added by the CVAA, states that the Commission shall, after a rulemaking, reinstate its video description regulations contained in the Implementation of Video Description of Video Programming Report and Order (15 F.C.C.R. 15,230 (2000)), recon. granted in part and denied in part, (16 F.C.C.R. 1251 (2001)), modified as provided in paragraph (2). 18

Consistent with Congress' directive, we will reinstate the Commission's 2000 rules on October 8, 2011 with the modifications required by the CVAA. 19 The most significant elements of those rules are:

• Affiliates of the top four national networks  20 located in the top 25 television markets  21 must provide 50 hours per calendar quarter of video-described prime time and/or children's programming. For this purpose, prime time means 8-11 pm Monday through Saturday, and 7-11 pm on Sunday, except that these times are an hour earlier in the central time zone, and stations in the mountain time zone may choose which “prime time” period to adopt for the purpose of these rules. 47 CFR 79.3(a)(6). In this item, we propose to define children's programming as being directed at children 16 years of age and younger. See paragraph 32, below, and Appendix A. MVPDs with 50,000 or more subscribers must provide 50 hours per calendar quarter of video-described prime time and/or children's programming on each of the top five nonbroadcast networks that they carry. Our ranking of the Top 5 networks will be based on Nielsen national prime time audience share, the number of subscribers reached, and amount of non-exempt programming. See paragraph 12, below.

• To count toward the requirement, the programming must not have been previously aired with video description, on that particular MVPD channel or broadcast station, more than once. 22 The CVAA defines “video programming” in the video description context as “programming by, or generally considered comparable to programming provided by a television broadcast station, but not including consumer-generated media (as defined in section 3).” CVAA at Title II, sec. 202(a), 713(h)(2). Section 3 of the Communications Act, as amended in the CVAA, defines consumer-generated media as “content created and made available by consumers to online Web sites and services on the Internet, including video, audio, and multimedia content.” CVAA at Title I, sec. 101(1), 3 (54). The proposed rules adopt the CVAA definition of video programming.

• Any broadcast station, regardless of its market size, affiliated or otherwise associated with any television network, must “pass through” video description when the network provides it and the station has the technical capability necessary to do so. 23 Similarly, any MVPD, regardless of its number of subscribers, must “pass through” video description when a broadcast station or nonbroadcast network provides it, if it has the technical capability necessary to do so on the channel on which it distributes the broadcast station or nonbroadcast network programming. 24 Any programming aired with description must always include description if re-aired on the same station or MVPD channel. 25

• Complaints alleging a failure to comply with these rules may be filed with the Commission by any viewer, and the Commission will act to resolve such complaints in consultation with the video programming distributor. 26

7. As discussed above, under the reinstated rules, certain broadcast stations and MVPDs will have an obligation to provide video description of some of the programming they provide. Specifically, affiliates of ABC, CBS, Fox, and NBC that are located in the 25 television markets with the largest number of television households must provide 50 hours per calendar quarter of video-described programming during prime time, or at any time if it is children's programming. To count toward this 50-hour requirement, video-described programming must be airing either the first or second time on the station; that is, a video described program may be counted toward the 50 hours when it is originally aired and once more when it is re-run. Although we anticipate that much of the programming aired with video description will be newly produced, we propose that the reinstated rules permit stations to count any program that they are airing for the first or second time with video description after the reinstated rules become effective, even if the program has previously been aired on that station. Similarly, a station may count programming toward its 50 hour obligation even if that programming has aired elsewhere with description, so long as it is airing with description for the first or second time on that station. The rules are identical for MVPDs with 50,000 or more subscribers, except that they apply to the programming of each of the top five national non-broadcast networks carried by the MVPDs.

8. Although the CVAA requires reinstatement of the rules largely as adopted by the Commission in 2000, the Commission does have some discretion in determining the stations, MVPDs, and networks to which they apply. We therefore seek comment on these issues, as discussed below.

9. As established in the 2000 rules, the broadcast stations subject to the requirement to provide video description  27 were those “[c]ommercial television broadcast stations that [were] affiliated with one of the top four commercial television broadcast networks (ABC, CBS, Fox, and NBC), as of September 30, 2000, and that [were] licensed to a community located in the top 25 DMAs, as determined by Nielsen Media Research, Inc. for the year 2000.”  28 We propose to reinstate the rules insofar as they designate ABC, CBS, Fox, and NBC as the broadcast networks affected. 29 Although the original rule refers only to “commercial television broadcast stations,” the 2000 Report and Order is unclear about whether this requirement was intended to be limited to full-power commercial stations, or to apply to commercial low power stations as well. We seek comment on the appropriate scope of the requirement to provide description. The CVAA directs us to “update the list of the top 25 designated market areas.”  30 We propose to apply the rules to the Top 25 markets as determined by Nielsen as of January 1, 2011 ( i.e., the 2010-2011 DMA rankings), and, within those markets, to require stations affiliated with ABC, CBS, Fox, or NBC to provide video description, regardless of when the affiliation begins. We seek comment on this proposal.

10. The relative size of markets often changes over time. We want to ensure that the rules apply to the top 25 markets, as required by the CVAA. At the same time, we seek to ensure that regulatees and the public at large have adequate advance notice regarding which broadcast stations will be subject to the requirement to provide video description, and to avoid undue disruption for audiences who come to rely upon video described programming. Further, we recognize that a significant amount of video described programming (potentially all the programming required under the rules) will be provided by national network programmers and passed through by local stations, even in the top 25 markets. Because of the “pass-through” obligations of network stations outside the top 25 markets, discussed below, there may be little to no difference in the amount of video described programming available from affiliates of the top 4 networks in larger and smaller markets. 31 In light of these considerations, we seek comment on whether we should reconsider the ranking of the top 25 markets at certain intervals to reflect current market conditions better and, if so, what those intervals should be.

11. The CVAA mandates that the Commission extend the video description requirements to the top 60 markets after filing a report to Congress on the state of the video description market, as discussed above, 32 and no later than six years after the enactment date of the CVAA ( i.e., October 8, 2016). If, as we propose in this Notice, the first phase is complete on January 1, 2012, the Report will be submitted to Congress no later than January 1, 2014. Should we identify now the date to be used to determine the top 60 markets and a compliance deadline for stations in markets 26-60, or should we set those dates following the required report to Congress?

12. In order to implement the requirement that MVPDs provide video description, we must also update the “top 5 national nonbroadcast networks that have at least 50 hours per quarter of prime time programming that is not exempt.”  33 The prior rules determined the top nonbroadcast networks using “an average of the national audience share during prime time of nonbroadcast networks, as determined by Nielsen Media Research, Inc., for the time period October 1999-September 2000, that reach 50 percent or more of MVPD households.”  34 Those rules did not contemplate that any programming would be exempt, which made identification of those networks more straightforward than under the new statutory requirements. 35 We propose to update the definition's time period to October 2009—September 2010 (These dates cover the 2009-2010 television season, which will be the most recent full television season from which ratings will have been calculated and be available when the rules are adopted). We also propose to explicitly exclude from the top five any non-broadcast network that does not provide, on average, at least 50 hours per quarter of prime time non-exempt programming, i.e., programming that is not live or near-live. 36 We seek comment regarding this proposal, and particularly seek detailed information from any network that believes it should be excluded from the top five covered networks due to an insufficient amount of non-exempt programming. We note that Nielsen treats some nonbroadcast “channels” as more than one “network” for ratings purposes; for example, Nickelodeon/Nick at Nite and Cartoon Network/Adult Swim. We seek comment as to how we should take this into account when determining which networks are subject to the requirement to provide video description for 50 hours per quarter of prime time or children's programming. According to staff analysis of Nielsen data for the 2009-2010 television season, the top 5 national nonbroadcast networks, based on an average of the national audience share during prime time of nonbroadcast networks, are USA, the Disney Channel, ESPN, TNT, and Nickelodeon's Nick at Nite. FCC Staff Analysis based on data provided by Nielsen. Additional networks, some of which are tied for audience share during the 2009-2010 television season, which have the potential to be covered under the statute if any of the top 5 do not provide the requisite hours of non-exempt programming, include Fox News, TBS, A&E, History, the Cartoon Network's Adult Swim, the Family Channel, and HGTV. Any network that believes it should be excluded from the top five due to an insufficient amount of nonexempt programming should provide notice in the Record before the close of the Comment period. The network's Comments should be accompanied by an affidavit stating how many hours of nonexempt programming it typically airs per quarter (including how many hours of live programming and how many hours of near-live programming, as we propose to define those terms), as well as supporting documentation such as program schedules. Parties that wish to challenge any such claims may do so in their Reply Comments. If the Media Bureau determines that the information submitted is insufficient to determine whether a particular network has at least 50 hours per quarter of non-exempt prime time programming, we authorize the Bureau to seek additional information from the network or networks, consistent with the requirements of the Paperwork Reduction Act. 37

13. Ratings of nonbroadcast networks often change over time. We want to ensure that the rules apply to the top five national nonbroadcast networks, as required by the CVAA. At the same time, we also want to ensure that regulatees and the public at large have adequate advance notice regarding which networks will be subject to the rules, and to avoid undue disruption for audiences who will come to rely upon video described programming. In light of these considerations, we seek comment on whether we should reconsider the ranking of the top five nonbroadcast networks at certain intervals to better reflect current market conditions and, if so, what those intervals should be.

14. As noted above, under our previous video description rule, broadcasters affiliated with any network and all MVPDs were required to pass through any video description that they received from a broadcast or cable network or, in the case of MVPDs, from a broadcast station they carried, whenever they had the technical capability on the relevant channel to pass through the video description, unless they were using the technology necessary to provide such video description for another purpose related to the programming that would conflict with providing the video description. 38 We propose to reinstate this rule without revision. We also note that the must carry provision of the Communications Act requires cable operators to carry “the primary video, accompanying audio, and line 21 closed caption transmission of each of the local commercial television stations carried on the cable system and, to the extent technically feasible, program-related material carried in the vertical blanking interval or on subcarriers.”  39 Although the original rule refers to all “television broadcast stations,” the 2000 Report and Order is unclear about whether this requirement was intended to include low power stations. We seek comment on the appropriate scope of the obligation to pass through description. This obligation is distinct from the requirement to provide video description that we propose to impose on certain broadcasters and MVPDs. First, it applies to all MVPDs and network-affiliated broadcast stations (including non-commercial stations), rather than a subset of large-market entities. 40 Second, broadcast stations and MVPDs with the obligation to provide 50 hours of description must continue to pass through any video description that they receive even after they have provided the 50 required hours of description. 41 Broadcast stations and MVPDs that pass through video-described programming from a network can count that programming toward their 50 hour obligation, so long as it is either aired during prime time or is children's programming, and has not been previously aired more than once since the adoption of our rules. We note that, historically, most video described programming has been provided by the broadcast and non-broadcast networks to the broadcast stations and MVPDs, which pass it through and make it available to consumers.

15. In the 2000 Report and Order, the Commission required any station or MVPD with the “technical capability” to do so to pass through video description. 42 We said that we would “consider broadcast stations and MVPDs to have the technical capability necessary to support video description if they have virtually all necessary equipment and infrastructure to do so, except for items that would be of minimal cost.”  43 On reconsideration, the Commission adopted an exception to this requirement. When the secondary audio program (“SAP”) equipment and channel was being used to provide another program-related service, a station or MVPD did not have to stop providing that service in order to pass through the video description. This was based on the fact that the SAP channel could not be used to provide two services simultaneously. 44 For the same reason, the Commission also adopted this “other program-related service” exception in subsections (c)(3) and (4) of the video description rules (subsequent airings of described programming). 45 In the analog world, the SAP channel gave an entity the technical capability to pass through video description, but the inherent limitations of the technology meant that the entity could not provide video description simultaneously with another secondary audio track. Digital transmission, however, enables broadcasters and MVPDs to provide numerous audio channels for any given video stream. Unlike with SAP, therefore, digital technology allows simultaneous transmission of a variety of program-related secondary audio tracks. Digital video signals can have an enormous number of alternative audio tracks; although as a practical matter that number may be limited by the amount of bandwidth allocated to the programming stream, digital programming can technically include more than three audio tracks. 46 Given this flexibility, is it necessary or appropriate to apply the “other program-related service” exception to digital transmissions?

16. Transmission of multiple audio tracks, even digitally, may require the use of additional equipment by broadcasters and MVPDs. We seek comment on what is needed for broadcast stations and MVPDs to have the “technical capability necessary” to pass through video description of digital programming, the extent to which affected entities already have any necessary equipment or have incentives to upgrade to this equipment for other purposes, and the cost of such equipment and any other necessary upgrades. Specifically, we seek comment on the costs of providing additional audio tracks once an entity is technically capable of providing a secondary digital audio track. What standards should we use to take these costs into account when determining whether a distributor has “the technical capability necessary to pass through the video description”?

17. The CVAA requires us to reinstate the revised video description rules “on the day that is 1 year after the date of enactment,”  47 to provide “an appropriate phased schedule of deadlines for compliance,”  48 and to determine “the beginning calendar quarter for which compliance shall be calculated.”  49 We propose to adopt and publish modified rules before October 8, 2011 (the date one year after enactment) that will be effective thirty days after publication, 50 except for those requirements subject to Office of Management and Budget (OMB)  51 approval or that are phased-in as described below. We seek comment on this proposed timeline.

18. We propose that on January 1, 2012, 85 days after the reinstatement of the rules, 52 affiliates of the top four networks located in the top 25 markets begin providing 50 hours per calendar quarter of video-described prime time and/or children's programming. Similarly, we propose that on January 1, 2012, 53 MVPDs with 50,000 or more subscribers begin providing 50 hours per calendar quarter of video-described prime time and/or children's programming on each of the top five non-broadcast networks that they carry. We propose that, should any MVPD not serving at least 50,000 subscribers on the effective date of the rules begin to do so at a later date, it must provide video description on the top five non-broadcast networks, in the same manner as MVPDs currently serving 50,000 or more subscribers, beginning no more than three months after reaching 50,000 subscribers. Given that an MVPD should be aware in advance that it is approaching the 50,000 subscriber threshold, we believe three months is adequate time to ensure that it will be able to comply with this requirement. We further propose that compliance with the “50-described hours” requirement be calculated for these broadcasters and MVPDs beginning in the first calendar quarter of 2012. 54 We also propose that broadcasters and MVPDs comply with the pass-through requirement  55 commencing January 1, 2012.

19. We seek comment on these phase-in proposals. Will this compliance schedule provide sufficient time for covered entities to begin providing and passing through video described programming? Given the limited number of hours of video description required at this stage, we do not expect any significant delay in compliance as a result of a need to negotiate with rights holders. We seek comment on this conclusion. We note that although the CVAA deferred certain implementation issues to the Commission, to a great extent the entities that will be subject to our reinstated rules have been aware of the pending requirements since at least the enactment of the CVAA on October 8, 2010.

20. The CVAA recognizes the unique difficulties of providing video description for programming that is produced live or shortly before it is first aired, i.e., programming that is “live or near-live.” As a result, the statute explicitly states that the regulations we adopt “shall not apply to live or near-live programming,” and directs us to take this exemption into consideration when determining whether a non-broadcast network is covered by the video description rules. 56 The CVAA also gives the Commission authority to provide certain other categorical or individual exemptions, and we seek comment on whether and how such exemptions should be provided.

21. Section 713(f)(2)(E) of the Communications Act, as added by the CVAA, states that: “[t]he regulations shall not apply to live or near-live programming.”  57 We believe that “live” programming is, self-evidently, programming aired substantially simultaneously with its performance. This programming is often non-scripted, and would include, for example, many sporting events and news programs. 58 We are, however, unaware of an accepted definition of “near-live programming.” Some television programs, even if not aired “live,” are filmed and produced just hours before they are first aired. In addition, we understand that some programs aired live on the East Coast are aired three hours later on the West Coast. By including “near-live” programming within the exemption, Congress apparently wished to exempt programs produced such a short time before airing that there is not sufficient time for the creation of video descriptions. We therefore seek comment on a definition of “near-live programming” that will ensure that programming is not covered by the reinstated rules unless there is ample time to create and insert video descriptions in the programming before it is aired. We propose that programming performed and recorded less than 24 hours prior to the time it is first aired be deemed “near-live,” and seek comment on this proposal. We seek comment on how long it takes to produce video descriptions, and request that those who prefer a shorter or longer window for near-live programming support their alternative proposals with information regarding the length of time needed to produce video descriptions. How should our rule address the situation where a program is substantially completed before the beginning of the “near-live” window, but edited during that window in ways which do not change the basic content? How commonly does this occur in the production of major network prime time programming? We note that we may modify our definition of “near-live programming” in the future as broadcasters, MVPDs, and programming producers gain experience with integrating video description into their production and transmission cycle and it becomes feasible to incorporate video descriptions closer to the time of transmission of the programming.

22. Section 713(f)(2)(C) of the Communications Act, as added by the CVAA, states that

23. The Commission previously determined in the closed captioning context that compliance would constitute an “undue burden” for an entity, therefore justifying an individual exemption from the rule, upon a showing that the captioning requirements would result in “significant difficulty or expense” for the petitioner. Commission rules explain that such exemptions may be granted for “a channel of video programming, a category or type of video programming, an individual video service, a specific video program or a video programming provider.” 47 CFR 79.1(f)(1). The factors to be taken into consideration when making an exemption determination under this section are: (1) The nature and cost of the closed captions for the programming; (2) the impact on the operation of the provider or program owner; (3) the financial resources of the provider or program owner; and (4) the type of operations of the provider or program owner. 61 What are the circumstances under which the video description rules might be, or might become, “economically burdensome” for covered entities? What are the necessary costs for broadcasters, MVPDs, and the producers of programming to begin providing 50 hours per calendar quarter of video described programming? How are these costs different in digital than in analog transmission? Specifically, are there any considerations unique to particular MVPD delivery technologies, such as DBS or IPTV, that might justify a partial exemption or delay?  62

24. What are the anticipated ongoing costs, per program or hour described? What, on average, is the total cost to produce a single program or hour of prime time programming on the major networks covered by the requirement to provide video description? Will this requirement add any ongoing costs other than the description itself? Comments from both the purchasers and producers of video description would be of great value in understanding these costs.

25. For those entities subject to the requirement to provide (and not merely pass through) video description, we find it unlikely that the modest requirement of 50 hours per quarter will be economically burdensome; as discussed above, in the first phase this requirement only applies to the top broadcast network affiliates in the biggest markets, MVPDs serving more than 50,000 subscribers, and the most popular nonbroadcast networks. Are there any particular concerns regarding the economic burden of pass-through obligations, which will apply to a much larger number of entities than the requirement to provide video description? We seek comment on these issues.

26. Section 713(f)(2)(D) of the Communications Act, as added by the CVAA, provides that

27. Section 713(f)(2)(A) of the Communications Act, as added by the CVAA, states that “[t]he regulations shall apply to video programming, as defined in subsection (h), insofar as such programming is transmitted for display on television in digital format.”  65 When the video description rules were originally adopted in 2000, digital television was in its relative infancy, and those rules explicitly did not extend to digital transmission of programming. 66 At the time, the Commission indicated that it expected to extend the rules to cover digital broadcasting “after there has been further experience with both digital broadcasting and video description.”  67 On June 12, 2009 full-power television broadcasters nationwide completed their transition to digital-only broadcasting, 68 and a number of digital broadcasters and digitally transmitted nonbroadcast networks have been providing video description to viewers for even longer. 69 We propose, therefore, to extend the reinstated rules to cover all video programming, including that transmitted for display on television in digital format. We seek comment on this proposal.

28. A separate issue, exclusive to digital broadcasting, is the ability of digital television broadcasters to transmit multiple streams of programming on a single channel. We propose to consider only programming on the primary programming stream when measuring a broadcast station's compliance with the “50 described hours” requirement, unless the station carries a top-four national network on another stream. How should we apply the rules when a station is affiliated with more than one network? In situations in which a broadcast station carries another top-four network's programming on a secondary stream, we propose to apply the rules in the same manner as if the network programming were carried by a separate station. We seek comment on this proposal. We also propose to impose the pass-through requirement, discussed above, on all network-provided programming carried on all of an affiliated station's programming streams. This approach would ensure the availability of described programming to the widest possible audience. In particular, this requirement would ensure that those who subscribe to an MVPD service that only carries the broadcast station's primary stream would have access to described programming. We seek comment on these proposals.

29. Quality Standards. We seek comment on whether we should adopt quality standards for video description. Although some quality issues might be subjective (dealing with the content of the narration) and therefore difficult to enforce, others might be addressed in an objective standard. For example, the Commission could adopt a standard requiring that video description not conflict with dialogue or other important audio in the program. Additionally, the Commission could require video description to be synchronous with the action it is describing. Is it necessary for the Commission to adopt these or other standards? If so, what standards would be necessary or appropriate? Does the Commission have authority to adopt such standards and could we do so consistent with the First Amendment? Commenters who support adoption of such quality standards should also propose either standards or existing sources that could serve as the basis for standards. Whether or not the Commission adopts mandatory standards, are there existing sources of such standards? Should the industry develop a list of best practices? We solicit input on what some of these practices might be.

30. Program Selection. For informational purposes, we also seek comment on how programs are likely to be chosen for description. Do entities plan to determine which shows to describe based on popularity or input from community advisory groups, or the degree to which a particular program would be enhanced by video description, or do they anticipate taking a different approach to choosing programs for video description? Do the costs or benefits of description change with different types or formats of program? How do entities intend to publicize the availability of video description? Only a subset of programming will contain video description. Therefore, should the Commission require that the availability of video description on certain programs be publicized in a certain manner, and if so, what is the best way to do so and does the Commission have authority to require the covered entities to publicize this information? We seek comment on these questions.

31. Updated A/53 Standard. The Commission's Rules incorporate the ATSC digital broadcast standard by reference, but have not been updated to reflect the 2010 revisions to the A/53 standard. 70 The 2007 standard currently in effect under our rules includes two options for transmission of the Visually Impaired (“VI”) audio service that would typically carry video descriptions. The first option is compatible with all DTV receivers. The second option requires support in DTV receivers that is rarely implemented. In the latest version of A/53 Part 5 adopted by ATSC, the second option has been eliminated. 71 We propose to update our rules to incorporate A/53 Part 5: 2010 in order to ensure that video description can be received by all DTV receivers. We seek comment on this proposal.

32. Children's Programming. Under the proposed rules, broadcast stations and MVPDs required to provide 50 hours of video described programming per quarter may do so during prime time or children's programming. 72 The proposed rules define “prime time” for video description purposes. 73 The Commission's rules define “children's programming” differently in different contexts. For instance, we impose limits on commercial advertising in programming “produced and broadcast primarily for an audience of children 12 years old and younger.”  74 Our processing guidelines regarding “educational and informational” programming for children, on the other hand, apply to programming that “furthers the educational and informational needs of children 16 years of age and under.”  75 Because older children with vision or other impairments can benefit from video description, we propose to define children's programming in this context as programming directed at children 16 years of age and under. We seek comment on this proposal.

33. Subsection G. Section 713(f)(2)(G) of the Communications Act, as added by the CVAA, says that

34. Non-Substantive Revisions. In addition to the proposals above, we intend to make necessary non-substantive revisions to the rules. These include revisions and additions to the Definitions section of the prior rules, 77 changes to the second paragraph of the Procedures for Exemptions section  78 to reflect that they apply to video programming “providers” rather than just video programming “distributors,”  79 updates to the Complaint Procedures  80 to reflect the valid current address and name of the Consumer and Governmental Affairs Bureau, and non-substantive wording changes intended to make the meaning of the rules clearer. We seek comment on any other necessary technical revisions to the reinstated rules.

35. Other Comments Requested. Finally, we invite comment on any other issues relating to the reinstatement and modification of our Video Description rules.

36. This document contains proposed new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

37. Permit-But-Disclose. This proceeding will be treated as a “permit-but-disclose” proceeding subject to the “permit-but-disclose” requirements under section 1.1206(b) of the Commission's rules. 81 Ex parte presentations are permissible if disclosed in accordance with Commission rules, except during the Sunshine Agenda period when presentations, ex parte or otherwise, are generally prohibited. Persons making oral ex parte presentations are reminded that a memorandum summarizing a presentation must contain a summary of the substance of the presentation 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. 82 Additional rules pertaining to oral and written presentations are set forth in Section 1.1206(b).

38. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/ or the Federal eRulemaking Portal: http://www.regulations.gov.

• Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

• Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• Effective December 28, 2009, all hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. The filing hours are 8 a.m. to 7 p.m.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554.

People With Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

39. Availability of Documents. Comments, reply comments, and ex parte submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.

40. Accessibility Information. To request information in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This document can also be downloaded in Word and Portable Document Format (PDF) at: http://www.fcc.gov.

41. Additional Information. For additional information on this proceeding, contact John Norton, John.Norton@fcc.gov, or Lyle Elder, Lyle.Elder@fcc.gov, of the Media Bureau, Policy Division, (202) 418-2120.

42. With respect to the NPRM, an Initial Regulatory Flexibility Analysis (“IRFA”), see generally 5 U.S.C. 603, follows. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM specified supra. The Commission will send a copy of the NPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. 83

43. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”)  84 the Commission has prepared this Initial Regulatory Flexibility Analysis (“IRFA”) of the possible economic impact on a substantial number of small entities by the policies and rules proposed in this Notice of Proposed Rulemaking (“ NPRM” ). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM as indicated on its first page. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”). 85 In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register. 86

44. This NPRM proposes and seeks comment on reinstatement of the Commission's video description rules, which make television programming more accessible to persons with visual disabilities. The United States Court of Appeals for the District of Columbia Circuit vacated the rules due to insufficient authority soon after initial adoption. 87 With its enactment, the CVAA now directs the Commission to reinstate the rules with certain modifications. 88 The proposed rules require large-market broadcast affiliates of the top four national networks and multichannel video programming distributors (“MVPDs”) with more than 50,000 subscribers to provide video description. 89 Covered broadcasters are required to provide 50 hours of video-described prime time or children's programming, per quarter, and covered MVPDs are required to provide the same number of hours on each of the five most popular nonbroadcast networks. 90 This requirement to provide description will effect few, if any, small entities. The rules also require, to the extent technically possible, that all network-affiliated broadcasters (commercial or non-commercial) and all MVPDs pass through any video description provided with programming they carried. 91 This pass-through requirement will effect any small MVPDs and network-affiliated broadcasters. As required under the CVAA, we propose to reinstate these rules on October 8, 2011, and to require broadcast stations and MVPDs subject to our rules to begin full compliance in the first quarter of 2012. We also propose to make certain modifications to the rules, as directed by the CVAA. Notably, these modifications include the exemption of “live or near-live” programming from consideration under the rules. We seek comment on the definition of “near-live,” propose that programs produced within 24 hours of their first airing be considered “near-live” in the context of video description, and also seek comment on other possible grounds for exemption from the rules.

45. The authority for the action proposed in this rulemaking is contained in the Twenty-First Century Communications and Video Accessibility Act of 2010, Public Law 111-260, 124 Stat. 2751, and Sections 1, 2(a), 4(i), 303, 307, 309, 310, and 713 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 303, 307, 309, 310, and 613.

46. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules if adopted. 92 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”  93 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 94 A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). 95 The rule changes proposed herein will directly affect small television broadcast stations and small multichannel video program distributors (MVPDs), which include cable operators and satellite video providers. A description of these small entities, as well as an estimate of the number of such small entities, is provided below.

47. Television Broadcasting. The SBA defines a television broadcasting station as a small business if such station has no more than $14.0 million in annual receipts. 96 Business concerns included in this industry are those “primarily engaged in broadcasting images together with sound.”  97 The Commission has estimated the number of licensed commercial television stations to be 1,392. 98 According to Commission staff review of the BIA/Kelsey, MAPro Television Database (“BIA”) as of April 7, 2010, about 1,015 of an estimated 1,380 commercial television stations  99 (or about 74 percent) have revenues of $14 million or less and, thus, qualify as small entities under the SBA definition. The Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 390. 100 We note, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations  101 must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. The Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.

48. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. Also, as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities and our estimates of small businesses to which they apply may be over-inclusive to this extent.

49. Satellite Telecommunications. Since 2007, the SBA has recognized satellite firms within this revised category, with a small business size standard of $15 million. 102 The most current Census Bureau data are from the economic census of 2007, and we will use those figures to gauge the prevalence of small businesses in this category. Those size standards are for the two census categories of “Satellite Telecommunications” and “Other Telecommunications.” Under the “Satellite Telecommunications” category, a business is considered small if it had $15 million or less in average annual receipts. 103 Under the “Other Telecommunications” category, a business is considered small if it had $25 million or less in average annual receipts. 104

50. The first category of Satellite Telecommunications “comprises establishments primarily engaged in providing point-to-point telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.”  105 For this category, Census Bureau data for 2007 show that there were a total of 512 firms that operated for the entire year. 106 Of this total, 464 firms had annual receipts of under $10 million, and 18 firms had receipts of $10 million to $24,999,999. 107 Consequently, we estimate that the majority of Satellite Telecommunications firms are small entities that might be affected by rules adopted pursuant to the NPRM.

51. The second category of Other Telecommunications consists of firms “primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing Internet services or voice over Internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry.”  108 For this category, Census Bureau data for 2007 show that there were a total of 2,383 firms that operated for the entire year. 109 Of this total, 2,346 firms had annual receipts of under $25 million. 110 Consequently, we estimate that the majority of Other Telecommunications firms are small entities that might be affected by our action.

52. Direct Broadcast Satellite (“DBS”) Service. DBS service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic “dish” antenna at the subscriber's location. DBS, by exception, is now included in the SBA's broad economic census category, “Wired Telecommunications Carriers,”  111 which was developed for small wireline firms. Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees. 112 To gauge small business prevalence for the DBS service, the Commission relies on data currently available from the U.S. Census for the year 2007. According to that source, there were 3,188 firms that in 2007 were Wired Telecommunications Carriers. Of these, 3,144 operated with less than 1,000 employees, and 44 operated with more than 1,000 employees. However, as to the latter 44 there is no data available that shows how many operated with more than 1,500 employees. Based on this data, the majority of these firms can be considered small. 113 Currently, only two entities provide DBS service, which requires a great investment of capital for operation: DIRECTV and EchoStar Communications Corporation (“EchoStar”) (marketed as the DISH Network). 114 Each currently offers subscription services. DIRECTV  115 and EchoStar  116 each report annual revenues that are in excess of the threshold for a small business. Because DBS service requires significant capital, we believe it is unlikely that a small entity as defined by the SBA would have the financial wherewithal to become a DBS service provider.

53. Fixed Microwave Services. Fixed microwave services include common carrier, 117 private operational-fixed, 118 and broadcast auxiliary radio services. 119 At present, there are approximately 22,015 common carrier fixed licensees and 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission has not created a size standard for a small business specifically with respect to fixed microwave services. For purposes of this analysis, the Commission uses the SBA small business size standard for Wireless Telecommunications Carriers (except Satellite), which is 1,500 or fewer employees. 120 The Commission does not have data specifying the number of these licensees that have more than 1,500 employees, and thus is unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA's small business size standard. Consequently, the Commission estimates that there are up to 22,015 common carrier fixed licensees and up to 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services that may be small and may be affected by the rules and policies adopted herein. We note, however, that the common carrier microwave fixed licensee category includes some large entities.

54. Cable and Other Program Distribution. Since 2007, these services have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.”  121 The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. 122 According to Census Bureau data for 2007, there were a total of 955 firms in this previous category that operated for the entire year. 123 Of this total, 939 firms had employment of 999 or fewer employees, and 16 firms had employment of 1000 employees or more. 124 Thus, under this size standard, the majority of firms can be considered small and may be affected by rules adopted pursuant to the NPRM.

55. Cable Companies and Systems. The Commission has developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide. 125 Industry data indicate that, of 1,076 cable operators nationwide, all but eleven are small under this size standard. 126 In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. 127 Industry data indicate that, of 7,208 systems nationwide, 6,139 systems have under 10,000 subscribers, and an additional 379 systems have 10,000-19,999 subscribers. 128 Thus, under this second size standard, most cable systems are small and may be affected by rules adopted pursuant to the NPRM.

56. Cable System Operators. The Act also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.”  129 The Commission has determined that an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. 130 Industry data indicate that, of 1,076 cable operators nationwide, all but ten are small under this size standard. 131 We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, 132 and therefore we are unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard.

57. Open Video Services. The open video system (“OVS”) framework was established in 1996, and is one of four statutorily recognized options for the provision of video programming services by local exchange carriers. 133 The OVS framework provides opportunities for the distribution of video programming other than through cable systems. Because OVS operators provide subscription services, 134 OVS falls within the SBA small business size standard covering cable services, which is “Wired Telecommunications Carriers.”  135 The SBA has developed a small business size standard for this category, which is: all such firms having 1,500 or fewer employees. According to Census Bureau data for 2007, there were a total of 3,188 firms in this previous category that operated for the entire year. 136 Of this total, 3,144 firms had employment of 999 or fewer employees, and 44 firms had employment of 1000 employees or more. 137 Thus, under this size standard, most cable systems are small and may be affected by rules adopted pursuant to the NPRM. In addition, we note that the Commission has certified some OVS operators, with some now providing service. 138 Broadband service providers (“BSPs”) are currently the only significant holders of OVS certifications or local OVS franchises. 139 The Commission does not have financial or employment information regarding the entities authorized to provide OVS, some of which may not yet be operational. Thus, again, at least some of the OVS operators may qualify as small entities.

58. The NPRM seeks comment on rules that would affect small television broadcast stations and MVPDs by requiring them to pass through a secondary audio track, containing video description, with any described programming that is provided by a network. The description need not be passed through if the station or MVPD does not have the technical capability to pass it through, or if the entity is already using all of the secondary audio capacity associated with that program for other program-related material. If any small entities are subject to the separate requirement to “provide” video description, we anticipate that they will do so by passing description through to viewers. This separate requirement will thus impose no distinct burden on small broadcasters or MVPDs. These requirements may in some cases result in the need for engineering services. The NPRM seeks comment, in part, on whether the rules could require the purchase of additional equipment.

59. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 140 We seek comment on the applicability of any of these alternatives to affected small entities.

60. The requirements proposed in the NPRM, including those affecting small broadcasters and MVPDs, are largely mandated by Congress. They would in most cases create minimal economic impact on small entities, and could provide positive economic impact by increasing viewership by persons with visual impairments. The Commission has statutory authority to determine the effective date of the rules, and to exempt parties or classes from operation of any or part of the proposed rules. We invite small entities to submit comment on the impact of the proposed rules, and on how the Commission could further minimize potential burdens on small entities if the proposals provided in the NPRM, or those submitted into the record, are ultimately adopted.

None.

61. It is ordered that, pursuant to the Twenty-First Century Communications and Video Accessibility Act of 2010, Public Law 111-260, 124 Stat. 2751, and Sections 1, 2(a), 4(i), 303, and 713 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 303, and 613, comment is hereby sought on the proposals described and rules set forth in this Notice of Proposed Rulemaking.

62. It is ordered that the Reference Information Center, Consumer and Governmental Affairs Bureau, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission Proposes 47 CFR parts 73 and 79 as follows:

Each year the Commission will publish a list of ten-year old rules for review and comment by interested parties pursuant to the requirements of section 610 of the RFA.

Released:

1. Pursuant to the Regulatory Flexibility Act (RFA), see 5 U.S.C. 610, the FCC hereby publishes a plan for the review of rules adopted by the agency in calendar year 1999 which have, or might have, a significant economic impact on a substantial number of small entities. The purpose of the review is to determine whether such rules should be continued without change, or should be amended or rescinded, consistent with the stated objective of section 610 of the RFA, to minimize any significant economic impact of such rules upon a substantial number of small entities.

2. This document lists the FCC regulations to be reviewed during the next twelve months. In succeeding years, as here, the Commission will publish a list for the review of regulations promulgated ten years preceding the year of review.

3. In reviewing each rule in a manner consistent with the requirements of section 610 the FCC will consider the following factors:

(a) The continued need for the rule;

(b) The nature of complaints or comments received concerning the rule from the public;

(c) The complexity of the rule;

(d) The extent to which the rule overlaps, duplicates, or conflicts with other Federal rules and, to the extent feasible, with State and local governmental rules; and

(e) The length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.

4. Appropriate information has been provided for each rule, including a brief description of the rule and the need for, and legal basis of, the rule. The public is invited to comment on the rules chosen for review by the FCC according to the requirements of section 610 of the RFA. All relevant and timely comments will be considered by the FCC before final action is taken in this proceeding.

Comments may be filed using the Commission's Electronic Comment Filing System (“ECFS”) or by filing paper copies. Comments filed through the ECFS may be sent as an electronic file via the Internet to http://www.fcc.gov/cgb/ecfs/. Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket (proceeding) and “DA” number.

Parties may also submit an electronic comment by Internet e-mail. To obtain filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message: “get form.” A sample form and directions will be sent in reply. Parties who choose to file by paper must file an original and four copies of each filing. Again, please include the docket (proceeding) and “DA” number.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. Again, please include the docket (proceeding) and “DA” number.

The filing hours at this location are 8 a.m. to 7 p.m.

All hand deliveries must be held together with rubber bands or fasteners.

• Any envelopes must be disposed of before entering the building.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

• U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554.

• All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

Comments in this proceeding will be available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. They may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-488-5300 or 800-378-3160, facsimile 202-488-5563, or via e-mail at fcc@bcniweb.com. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

For information on the requirements of the RFA, the public may contact Carolyn Fleming Williams, Senior Deputy Director, Office of Communications Business Opportunities, 202-418-0990 or visit http://www.fcc.gov/ocbo.