This rule is issued under the Mango Promotion, Research, and Information Order (Order) (7 CFR part 1206). The Order is authorized under the Commodity Promotion, Research, and Information Act of 1996 (Act) (7 U.S.C. 7411-7425).

The Office of Management and Budget (OMB) has waived the review process required by Executive Order 12866 for this action.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have a retroactive effect.

Section 524 of the Act provides that the Act shall not affect or preempt any other State or Federal law authorizing promotion or research relating to an agricultural commodity.

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

In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on the small entities that would be affected by this rule. The purpose of the RFA is to fit regulatory action to scale on businesses subject to such action so that small businesses will not be disproportionately burdened.

The Small Business Administration defines small agricultural producers as those having annual receipts of no more than $750,000 and small agricultural service firms as those having annual receipts of no more than $7 million (13 CFR part 121). First handlers and importers would be considered agricultural service firms, and the majority of mango producers, first handlers and importers would be considered small businesses. Although this criterion does not factor in additional monies that may be received by producers, handlers and importers of mangos, it is an inclusive standard for identifying small entities.

Mango producers are not subject to the assessment. First handlers and importers who market or import less than 500,000 pounds of mangos annually are exempt from the assessment. Mangos that are exported out of the United States are also exempt from assessment. Furthermore, while domestic and foreign producers are not subject to assessment under the order, but such individuals are eligible to serve on the Board along with importers and first handlers. Currently, approximately five first handlers and 193 importers are subject to assessment under the Order.

Under the current Order, first handlers and importers of 500,000 pounds or more of mangos per year each pay a mandatory assessment of one half cent per pound of mangos handled or imported. The proposed amendment to the Order would increase the rate of assessment currently paid by first handlers and importers of mangos to three quarters of a cent per pound. Exempt handlers and importers would remain exempt from assessment. While this amendment will have an economic impact on handlers and importers of more than 500,000 pounds of mangos per year, the impact is expected to be offset by the benefits to the mango industry. Assessment revenue is used by the Board to finance promotion, research, and information programs designed to increase consumer demand for mangos. Assessments at the current rate of one half cent per pound generate about $3.4 million in annual revenue. The Order is administered by the Board under U.S. Department of Agriculture supervision.

According to the Board, additional revenue is needed to avoid reductions in the promotions budget and to increase investment in marketing and research programs. At its September 2009 meeting, the Board voted to propose a 50 percent increase in the mango assessment rate upon completion of the March 2010 referendum to determine whether mango handlers and importers favored continuation of the Order. The proposed increase is consistent with section 1206.42(b) of the Order, which permits modification of the assessment rate by the Board with the approval of the Secretary, after the first referendum is conducted.

Mango assessment collections began on January 3, 2005, however, Board activities did not begin until 2006. Consequently, the Board was able to grow a considerable reserve that was used to supplement annual assessment revenues from 2007 until 2009. In 2010, higher than expected assessment revenue made it possible for the Board to operate without exceeding the total assessments collected for that year and to begin 2011 with approximately $1.6 million in available resources. However, with 2011 spending projected at approximately $4.3 million and assessment income projected at approximately $3.2 million, the Board is expected to begin 2012 with a reserve of $505,244. With no extra funds available from reserves, and if the assessment rate is kept at the current level, the Board's budget would be decreased.

In 2010, an econometric study of the effects of the Board's promotion activities on U.S. mango demand was conducted by Dr. Ronald Ward of the University of Florida. The study indicates that from 2005 through 2009, the value of mango imports to the U.S. grew from $169 million to $217 million. This is significant as the vast majority of mangos consumed in the U.S. are imported. The growth in value is the result of both higher prices and greater volumes imported. The study also found that the Board's activities have had a positive economic impact on the demand for mangos, both in attracting more buyers and in increasing the number of mangos purchased per buyer. According to the study, increased spending by the Board would correspond to increases in market penetration and the number of households purchasing mangos. Likewise, decreased spending would correspond to declines in both of those areas. Based on the analysis of these two factors and the value of mango imports, the study concludes that every $1 invested in the Board adds an additional $7 to mango freight on board revenues. This study is available from the Board and the Agricultural Marketing Service Web site.

An increase of one quarter of a cent per pound in the mango assessment rate is expected to add an additional $1.6 million per year to the Board's assessment revenue. With the additional revenue collected, the Board intends to invest primarily in marketing and research programs. In addition, the Board would be able to establish a contingency fund to ensure consistent funding in the face of market instability.

The Board considered three alternatives prior to recommending that the assessment rate be increased. First, the Board considered reducing investment in its research program. However, postponing the human nutrition studies that may help the Board to develop health messages that increase demand for mangos could hinder expansion of the U.S. mango market. Second, the Board considered limiting investment in programs designed to improve the quality of mangos available at the retail level. Delivering higher quality mangos to U.S. consumers is one of the Board's top priorities because higher quality translates to higher demand. Third, the Board considered reducing funding for its marketing programs. Lowering the funding level for marketing programs would significantly reduce the Board's ability to conduct promotion and consumer marketing activities, thereby hindering its efforts to increase demand for mangos.

This rule does not impose additional recordkeeping requirements on first handlers, importers, or producers of mangos. Additionally, first handlers or importers of less than 500,000 pounds of mangos per year are exempt.

There are no Federal rules that duplicate, overlap, or conflict with this rule. Additionally, section 517(c) of the Act states that not more than one assessment may be levied on a first handler or importer.

In accordance with the Office of Management and Budget (OMB) regulation (5 CFR part 1320) that implements the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements that are imposed by the Order have been approved previously under OMB control number 0581-0093. This rule does not result in a change to the information collection and recordkeeping requirements previously approved.

We have performed this initial Regulatory Flexibility Analysis regarding the impact of this proposed amendment to the Order on small entities and we invite comments concerning potential effects of this amendment on small businesses.

Under the Order, the Board administers a nationally coordinated program of research and promotion designed to strengthen the position of mangos in the marketplace and to establish, maintain, and expand U.S. markets for mangos. The program is financed by assessments on first handlers and importers of 500,000 pounds or more of mangos per year. The Order specifies that first handlers are responsible for submitting assessments to the Board on a monthly basis and maintaining records necessary to verify their reporting. Importers are responsible for paying assessments on mangos imported for marketing in the United States through the U.S. Customs and Border Protection Service of the U.S. Department of Homeland Security.

This rule proposes an increase of one quarter of a cent per pound in the mango assessment rate. Currently, the assessment rate is one half cent per pound of mangos handled domestically or imported into the United States. In order to sustain and expand its promotion, research, and communications programs, the Board contends that additional revenue is required. The proposed assessment rate increase is expected to generate an additional $1.6 million annually, depending on the volume of mangos handled in the United States or imported into the United States. In 2010, a total of 717,830,404 pounds of mangos were subject to assessment, resulting in approximately $3.6 million in assessment revenue. Less than one percent of the total assessments were from domestic handlers as the vast majority of assessments were collected from importers. The Board states that the proposed assessment rate increase would enable it to make additional investments in its marketing and research programs. In addition, the Board states that some of the additional revenue could be used to establish a contingency fund to ensure consistent funding for its programs.

The Board, whose members represent domestic producers, first handlers, importers, and foreign producers, voted at its September 12, 2009, meeting to propose the assessment rate increase of one quarter of a cent per pound after the March 2010 continuance referendum. Of the members present at the meeting, 9 voted in favor and 4 opposed proposal of the assessment rate increase. The four Board members that voted against the assessment increase stated that the increase would be passed onto mango producers. The assessment will be imposed on first handlers and importers who would pay assessments under the Order. Business decisions on how to manage assessments, including whether to pass back the cost of assessments to producers, are made by handlers and importers based on their respective business practices.

This rule would amend the rules and regulations issued under the Order. This rule would increase the assessment rate by one quarter of a cent per pound of mangos handled in the United States or imported. The assessment rate would increase from one half cent to three quarters of a cent per pound. This proposed increase is consistent with section 517(d) of the Act, which permits the Board to recommend to the Secretary a rate of assessment. Section 1206.42(a) of the Order states that the assessment rate may be modified by the Board with the approval of the Secretary, after the first referendum is conducted. The Board recommends the proposed assessment rate increase based on budget constraints imposed on its marketing, research, and industry relations programs by the current assessment rate. Accordingly, section 1206.42(b) of the Order would be revised.

A 60-day comment period is provided to allow interested persons to respond to this proposal. All written comments received in response to this rule by the date specified would be considered prior to finalizing this action.

Administrative practice and procedure, Advertising, Consumer information, Marketing agreements, Mango promotion, Reporting and recording requirements.

For the reasons set forth in the preamble, 7 CFR part 1206 is proposed to be amended as follows:

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, P.O. Box 3707, Seattle, WA 98124, applied for an amendment to Type Certificate Number A20WE to include the new Model 747-8 passenger airplane. Boeing later applied for, and was granted, an extension of time for the amended type certificate, which changed the effective application date to December 31, 2006. 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 and new General Electric GEnx-2B67 engines. The Model 747-8 will have two flight crew 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 meets the applicable provisions of part 25, as amended by 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 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.

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.

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.

Compliance with these special conditions does not relieve the applicant from the existing airplane certification basis requirements. One particular area of concern is that installing an overhead flight attendant rest (OFAR) compartment creates a smaller compartment volume within the overhead area of the airplane. The applicant must comply with the requirements of §§ 25.365(e), (f), and (g), for the OFAR compartment, as well as any other airplane compartments whose decompression characteristics are affected by the installation of an OFAR compartment. Compliance with § 25.831 must be demonstrated for all phases of flight when occupants are present.

While the installation of an OFAR compartment is not a new concept for large transport category airplanes, each compartment design has unique features by virtue of its design, location, and use on the airplane. Crew rest compartments have been installed and certified in the main passenger cabin area of Model 777-200 and -300 series airplanes and the overhead area of the passenger compartment of Model 777-200 airplanes. Other crew rest compartments have been installed below the passenger cabin area adjacent to the cargo compartment. Similar overhead crew rest compartments have also been installed on Model 747 series airplanes. The modification is evaluated with respect to the interior and assessed in accordance with the certification basis of the airplane. However, part 25 does not provide all of the requirements for crew rest compartments within the overhead area of the passenger compartment. Further, these special conditions do not negate the need to address other applicable part 25 regulations.

Due to the novel or unusual features associated with the installation of this OFAR compartment, special conditions are considered necessary to provide a level of safety equal to that established by the airworthiness regulations incorporated by reference in the type certificate.

These special conditions outline requirements for overhead crew rest compartment design approvals, including the OFAR compartment, (i.e., type design changes and supplemental type certificates) administered by the FAA's Aircraft Certification Service.

Procedures must be developed to assure that a crewmember entering the OFAR compartment through the vestibule to fight a fire will examine the vestibule and the lavatory areas for the source of the fire prior to entering the remaining areas of the OFAR compartment. These procedures are intended to assure that the source of the fire is not between the crewmember and the primary exit. In the event a fire source is not immediately self-evident to the firefighter, the firefighter should check for potential fire sources at areas closest to the primary exit first, then proceed to check areas in such a manner that the fire source, when found, would not be between the firefighter and the primary exit. Procedures describing methods to search the overhead crew rests for fire source(s) must be transmitted to the operator for incorporation into its training programs and appropriate operational manuals.

In general, the requirements listed in these special conditions are similar to those previously approved in earlier certification programs, such as the Model 777-200 series airplanes and Model 747 overhead crew rest compartments. These special conditions establish seating, communication, lighting, personal safety, and evacuation requirements for the OFAR compartment. In addition, passenger information signs, supplemental oxygen, and a seat or berth for each occupant of the OFAR compartment are required. These items are necessary because of turbulence and/or decompression. When applicable, the requirements parallel the existing requirements for a lower deck service compartment and provide an equivalent level of safety to that provided for main deck occupants.

On Model 777 series airplanes, crew rest compartments have been installed and certified in the main passenger cabin area, above the main passenger area, and below the passenger cabin area adjacent to the cargo compartment. Also, overhead crew rest compartments have been installed on Model 747 series airplanes.

The FAA issued special conditions that contain the additional safety standards that must be met for the OFAR compartments on Boeing Model 747 and 777 series airplanes. FAA Special Condition 25-ANM-16 was issued in 1987 to provide adequate safety standards for the 747-300 and 747-400 Door 5 Overhead Crew Rests, and amended in 1997 (25-ANM-16A) to address design changes in the 747-400 Door 5 Overhead Crew Rest. For Boeing Model 777 series airplanes, the FAA issued Special Conditions No. 25-230-SC, dated April 9, 2003, for overhead crew rest compartments allowed to be occupied during flight and Special Conditions No. 25-260-SC, dated April 14, 2004, for overhead flight crew rest (OFCR) compartments allowed to be occupied during taxi, take-off, and landing, as well as during flight.

This special condition requires the seats and berths to be certified to the maximum flight loads. Due to the location and configuration of the OFAR compartment, occupancy during taxi, take-off, and landing is prohibited, and occupancy is limited to crewmembers during flight. Occupancy would be limited to 12 in an OFAR compartment, or the combined total of approved seats and berths in the OFAR, whichever is less. This special condition has the requirements for:

• Door access and locking,

• Ashtray installation,

• Placards to prohibit passenger access,

• Access by crewmembers not trained in evacuation procedures,

• Smoking, and

• Hazardous quantities of flammable fluids, explosives, or other dangerous cargo.

The phrase “hazardous quantities” as used in this special condition permits trained crewmembers to continue to carry baggage containing minute quantities of flammable fluids (e.g., finger nail polish and aerosol hairspray) that would pose no threat to the airplane or its occupants. This wording is consistent with the existing wording of §§ 25.831(d), 25.855 (h)(2), 25.857 (b)(2), (c)(3) & (e)(4) and 25.1353(c)(3).

The purpose of this special condition is to prevent occupants from being trapped in the OFAR compartment if there is an emergency. The special condition requires at least two emergency evacuation routes that could be used by each occupant of the OFAR compartment to rapidly evacuate to the main cabin. These two routes must be sufficiently separated to minimize the possibility of an event rendering both routes inoperative. The main entry route meeting the appropriate requirements may be utilized as one of the emergency evacuation routes, or, as an alternative, two other emergency routes must be provided. The intent of Special Condition No. 2(b) is to ensure that one of the two routes would be clear of moving occupants under most foreseeable circumstances.

Special Condition No. 2(b) identifies the three issues that should be considered for egress routes. First, occupied passenger seats are not considered an impediment to the use of an egress route (for example, the egress route drops into one row of seats by means of a hatch) provided that the seated occupants do not inhibit the opening of the egress route (for example, a hatch).

Second, an egress route may utilize areas where normal movement of passengers occurs if it is demonstrated that the passengers would not impede egress to the main deck. If the egress means (a hatch in this design) opens into a main aisle, cross aisle, or galley complex to an extent that it contacts a standing ninety-fifth percentile male, then the contact should only momentarily interrupt the opening of the egress hatch. The interruption to the egress means can be considered momentary if the egress means would continue to open normally once the person has moved out of the way.

Third, the escape hatch should be provided with a means to prevent it from being inadvertently closed by a passenger on the main deck. This will ensure main deck passengers can not prevent the overhead crew rest occupants from using the escape route. The crew should be able to stow the escape hatch prior to landing.

Training requirements for the OFAR compartment occupants are included in this special condition.

To clarify how compliance can be shown to Special Condition No. 2(a) new qualitative and quantitative criteria have been added to this special condition since the issuance of Special Conditions No. 25-192-SC.

This special condition requires each evacuation route to be designed for and have procedures established for moving an incapacitated person from the OFAR compartment to the main deck. Additional assistants to evacuate an incapacitated person may ascend up to one half the elevation change from the main deck to the OFAR compartment, or to the first landing, whichever is lower. Where the escape route is over seats, this special condition allows for five passenger seats to be emptied when demonstrating evacuation of an incapacitated person.

This special condition requires exit signs; placards for evacuation routes; and illumination for signs, placards, and door handles. This special condition allows the use of exit signs with a reduced background area. The material surrounding the sign must be light in color to more closely match and enhance the illuminated background of the sign that has been reduced in area (letter size stays the same). Signs with a reduced background area have been allowed under previous equivalent levels of safety for small transport executive jets.

This special condition requires an emergency lighting system to prevent the occupants from being isolated in a dark area due to loss of the normal OFAR compartment lighting. The emergency lighting must be activated under the same conditions as the main deck emergency lighting system.

This special condition requires a two-way voice communication and public address speaker(s) to alert the occupants of an in-flight emergency. Also required is a system to alert the OFAR compartment occupants of a decompression event and to don oxygen masks.

This special condition requires a means to inform occupants of the OFAR compartment of an emergency. Also, after certain failures, power must be maintained to the emergency alarm system for a specific period of time.

This special condition requires a means that is readily detectable by seated or standing OFAR compartment occupants to indicate when seat belts should be fastened. The requirement for visibility of the sign by standing occupants may be met by a general area sign that is visible to occupants standing in the main floor area or corridor of the OFAR compartment. It would not be essential that the sign be visible from every possible location in the OFAR compartment. However, the sign should not be remotely located or located where it may be easily obscured.

This special condition requires the OFAR compartment, which is remotely located from the passenger cabin, to be equipped with the following tools for firefighting: A hand-held fire extinguisher, protective breathing equipment (PBE), and a flashlight.

This requirement has been modified from previously issued Special Conditions No. 25-192-SC to clarify how it should be interpreted relative to the requirements of § 25.1439(a). Amendment 25-38 modified the requirements of § 25.1439(a) by adding, “In addition, protective breathing equipment must be installed in each isolated separate compartment in the airplane, including upper and lower lobe galleys, in which crewmember occupancy is permitted during flight for the maximum number of crewmembers expected to be in the area during any operation.” The requirements of § 25.1439(a) apply to the OFAR compartment, which is an isolated separate compartment. However, the PBE requirements for isolated separate compartments of § 25.1439(a) are not appropriate because the OFAR compartment is novel and unusual in terms of the number of occupants. In 1976 when Amendment 25-38 was adopted, underfloor galleys were the only isolated compartments that had been certificated with a maximum of two crewmembers expected to occupy those galleys. Special Condition No. 9 addresses OFAR compartments that can accommodate up to 12 crewmembers. This large number of occupants in an isolated compartment was not envisioned at the time Amendment 25-38 was adopted. In the event of a fire, an occupant's first action should be to leave the confined space, unless the occupant(s) is fighting the fire. It is not appropriate for all OFAR compartment occupants to don PBE. Taking the time to don the PBE would prolong the time for an occupant's emergency evacuation and possibly interfere with efforts to extinguish the fire.

This special condition requires a smoke detection system and appropriate warnings since the OFAR compartment is remotely located from the main passenger cabin and will not always be occupied. The smoke detection system must be capable of detecting a fire in each occupiable area of the compartment created by the installation of a curtain or door.

This special condition requires the OFAR compartment to be designed so fires within the compartment can be controlled without having to enter the compartment; or, the design of the access provisions must allow crew equipped for firefighting to have unrestricted access to the compartment. The time for a crewmember on the main deck to react to the fire alarm, don firefighting equipment, and gain access must not exceed the time for the OFAR compartment to become smoke filled, making it difficult to locate the fire source.

This special condition requirement concerning fires within the compartment was developed for, and applied to, lower lobe crew rest compartments in Model 777-200 and -300 series airplanes. It was not applied to the overhead crew rest compartment in earlier certification programs such as the Model 747 airplanes. The Model 747 special conditions were issued before the new part 25 flammability requirements were developed. This requirement originated from a concern that a fire in an unoccupied overhead crew rest compartment could spread into the passenger compartment, or affect other vital systems, before it could be extinguished. This special condition would require either the installation of a manually activated fire containment system that is accessible from outside the OFAR compartment, or a demonstration that the crew could satisfactorily perform the function of extinguishing a fire under the prescribed conditions. A manually activated built-in fire extinguishing system would be required only if a crewmember could not successfully locate and extinguish the fire during a demonstration where the crewmember is responding to the alarm.

The OFAR compartment smoke or fire detection and fire suppression systems (including airflow management features which prevent hazardous quantities of smoke or fire extinguishing agent from entering any other compartment occupied by crewmembers or passengers) is considered complex in terms of paragraph 6d of Advisory Circular (AC) 25.1309-1A, System Design and Analysis. In addition, the FAA considers failure of the OFAR compartment fire protection system (i.e., smoke or fire detection and fire suppression systems) in conjunction with an OFAR fire to be a catastrophic event. Based on the “Depth of Analysis Flowchart” shown in Figure 2 of AC 25.1309-1A, the depth of analysis should include both qualitative and quantitative assessments (reference paragraphs 8d, 9, and 10 of AC 25.1309-1A). In addition, it should be noted that hazardous quantities of flammable fluids, explosives, or other dangerous cargo are prohibited from being carried in the OFAR compartment, a prohibition addressed in Special Condition No. 1(a)(5).

The requirements to enable crewmember(s) to quickly enter the OFAR compartment and locate a fire source inherently places limits on the amount of baggage that may be carried and the size of the OFAR compartment. The OFAR compartment is limited to stowing crew personal luggage and is not intended for stowing cargo or passenger baggage. The design of such a system to include cargo or passenger baggage would require additional requirements to ensure safe operation.

During the one-minute smoke detection time, penetration of a small quantity of smoke from the OFAR compartment into an occupied area is acceptable for this airplane configuration. The FAA finds this acceptable based on the limitations placed in this and other associated special conditions. The FAA position is predicated on the fact that these special conditions place sufficient restrictions on the quantity and type of material allowed in crew carry-on bags that the threat from a fire in this remote area would be equivalent to that experienced in the main cabin.

This special condition requires that the oxygen equipment and a supplemental oxygen deployment warning for the OFAR compartment be equivalent to that provided for main deck passengers. Procedures must be established for OFAR compartment occupants to follow in the event of decompression.

This special condition has the requirements for a divided OFAR compartment to address supplemental oxygen equipment and deployment means, signs, placards, curtains, doors, emergency illumination, alarms, seat belt fasten signals, and evacuation routes.

The wording in Special Condition No. 14(a) was modified from previously issued special conditions to clarify that oxygen masks are not required in common areas where seats or berths are not installed. A visual indicator to don oxygen masks is required in these areas. The visual indicator is in addition to the aural alert for donning oxygen masks.

For lavatories or other small areas within an OFAR compartment, this special condition eliminates the requirements for flight deck communication as required by Special Condition No. 6, and emergency fire fighting and protective equipment as required by Special Condition No. 9.

This special condition requires a fitted waste disposal receptacle to be equipped with an automatic fire extinguisher.

This special condition requires the materials in the OFAR compartment to meet the flammability requirements of § 25.853(a), and the mattresses and seat cushions to meet the fire blocking requirements of § 25.853(c).

To clarify the applicability, this special condition reiterates the existing requirements for the main deck lavatory. OFAR compartment lavatories are required to comply with the existing rules on lavatories in the absence of other specific requirements. In addition, any lavatory located in the OFAR compartment must also meet the requirements of Special Condition No. 10 for smoke detection due to its placement in this remote area.

This special condition requires establishing fire protection procedures for the OFAR compartment based on the size of the compartment (compartment interior volume). This special condition has been revised from previously issued special conditions for other model airplanes because of the introduction of larger stowage compartments into the OFAR compartment. The fire protection requirements for stowage compartments in the OFAR compartment are more stringent than those for stowage in the main passenger cabin because the OFAR compartment is a remote area that can remain unoccupied for long periods of time in contrast to the main cabin that is under continuous monitoring by the cabin crew and passengers. For stowage compartments less than 25 ft 3 the safety objective of these requirements is to contain the fire. FAA research indicates that properly constructed compartments meeting the material requirements will prevent burn through. For stowage compartments greater than 25 ft  3 but less than 200 ft  3 the safety objective is to detect and contain the fire for sufficient time to allow it to be extinguished by the crew. The requirements for these sizes of compartments are comparable to the requirements for Class B cargo compartments. The fire protection requirements are intended to provide a level of safety for the OFAR compartment that is equivalent to the level of safety established by the existing regulations for the main cabin.

These special conditions along with the original type certification basis provide the regulatory requirements necessary for certification of this modification. Other special conditions may be developed, as needed, based on further FAA review and discussions with the applicant, manufacturer, and civil aviation authorities.

The addition of galley equipment or a kitchenette incorporating a heat source (e.g., cook tops, microwaves, or coffee pots), other than a conventional lavatory or kitchenette hot water heater, within the OFAR compartment, may require additional special conditions. A hot water heater is acceptable and will not require issuing additional special conditions.

The OFAR compartment on the 747-8 series airplanes is located above the main passenger cabin adjacent to door 5 and will be accessed from the main deck by stairs. The OFAR compartment will include a maximum of 10 berths and a bench style seat for a maximum occupancy of 12. An emergency hatch that opens directly into the main passenger cabin area will be provided. A smoke detection system, an oxygen system with audio warning, emergency backup lighting, information signs, and occupant amenities will also be provided. Additionally, the OFAR compartment will only be occupied by trained crew members in flight, not during taxi, take-off, or landing.

As discussed above, these special conditions are applicable to Boeing Model 747-8 series 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, the special conditions would apply to that model as well under the provisions of § 21.101.

Certification of the Boeing Model 747-8 is currently scheduled for November 2011. The substance of these special conditions has been subject to the notice and public-comment procedure in several prior instances. Therefore, because a delay would significantly affect both the applicant's installation of the system and certification of the airplane, we are shortening the public-comment period to 20 days.

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 condition as part of the type certification basis for the Boeing Model 747-8 airplane.

1. Occupancy of the overhead flight attendant rest (OFAR) compartment is limited to the total number of bunks and seats installed in that compartment. There must be an approved seat or berth able to withstand the maximum flight loads when occupied for each occupant permitted in the OFAR compartment. The maximum occupancy is twelve.

(a) Appropriate placards must be located inside and outside each entrance to the OFAR compartment to indicate:

(1) The maximum number of occupants allowed.

(2) Occupancy is restricted to crewmembers that are trained in the evacuation procedures for the overhead crew rest compartment.

(3) Occupancy is prohibited during taxi, take-off and landing.

(4) Smoking is prohibited in the OFAR compartment.

(5) Stowage in the OFAR compartment area is limited to crew personal luggage. The stowage of cargo or passenger baggage is not allowed.

(b) At least one ashtray must be located on both the inside and the outside of any entrance to the OFAR compartment.

(c) Passengers must be prevented from entering the OFAR compartment in the event of an emergency or when no flight attendant is present.

(d) Any door installed between the OFAR compartment and passenger cabin must be capable of being quickly opened from inside the compartment, even when crowding occurs at each side of the door.

(e) For all doors installed in the OFAR compartment, a means must be in place to preclude anyone from being trapped inside the OFAR compartment. If a locking mechanism is installed, it must be capable of being unlocked from the outside without the aid of special tools. The lock must not prevent opening from the inside of the OFAR compartment at any time.

2. At least two emergency evacuation routes must be available which could be used by each occupant of the OFAR compartment to rapidly evacuate to the main cabin and be able to be closed from the main passenger cabin after evacuation. In addition—

(a) The routes must be located with sufficient separation within the OFAR compartment, and between the evacuation routes, to minimize the possibility of an event rendering both routes inoperative.

Compliance with the requirements of Special Condition No. 2(a) may be shown by inspection or analysis. Regardless of which method is used, the maximum acceptable distance between exit openings is 60 feet.

Inspection may be used to show compliance with Special Condition No. 2(a). An inspection finding that an OFAR compartment has evacuation routes located such that each occupant of the seats and berths has an unobstructed route to at least one of the evacuation routes regardless of the location of a fire would be reason for a finding of compliance. A fire within a berth that only blocks the occupant of that berth from exiting the berth need not be considered. Therefore, exits which are located at opposite ends (i.e., adjacent to opposite end walls) of the OFAR would require no further review or analysis with regard to exit separation.

Analysis must show that the OFAR compartment configuration and interior features allow all occupants of the OFAR to escape the compartment in the event of a hazard inside or outside of the compartment. Elements to consider in this evaluation are:

(1) Fire inside or outside the OFAR compartment, considered separately, and the design elements used to reduce the available fuel for the fire.

(2) Design elements to reduce the fire ignition sources in the OFAR compartment.

(3) Distribution and quantity of emergency equipment within the OFAR compartment.

(4) Structural failure or deformation of components that could block access to the available evacuation routes (e.g., seats, folding berths, and contents of stowage compartments).

(5) An incapacitated person blocking the evacuation routes.

(6) Any other foreseeable hazard not identified above that could cause the evacuation routes to be compromised.

Analysis must consider design features affecting access to the evacuation routes. The design features that should be considered include, but are not limited to,

• Seat back break over,

• Elimination of rigid structure that reduces access from one part of the compartment to another,

• The elimination of items that are known to cause hazards,

• The availability of emergency equipment to address fire hazards,

• The availability of communications equipment,

• Supplemental restraint devices to retain items of mass that could hinder evacuation if broken loose, and

• Load path isolation between components that contain the evacuation routes.

Analysis of the fire threats should be used in determining the placement of required fire extinguishers and protective breathing equipment (PBE). This analysis should take into consideration the possibility of fire in any location in the OFAR compartment. The location and quantity of PBE and fire extinguishers should allow occupants located in any approved seats or berths access to the equipment necessary to fight a fire in the OFAR compartment.

The intent of this special condition is to provide sufficient exit separation. The exit separation analysis described above should not be used to approve exits which have less physical separation (measured between the centroid of each exit opening) than the minimums prescribed below, unless compensating features are identified and submitted to the FAA for evaluation and approval.

For OFAR compartments with one exit located near the forward or aft end of an OFAR compartment (as measured by having the centroid of the exit opening within 20 percent of the total OFAR compartment length from the forward or aft end of the compartment) the exit separation should not be less than 50 percent of the total OFAR compartment length.

For OFAR compartments with neither required exit located near the forward or aft end of the OFAR compartment (as measured by having the centroid of the exit opening within 20 percent of the total OFAR compartment length from the forward or aft end of the compartment) the exit separation should not be less than 30 percent of the total OFAR compartment length.

(b) The routes must be designed to minimize the possibility of blockage, which might result from fire, mechanical or structural failure, or persons standing below or against the escape route. One of the two evacuation routes should not be located where, during times when occupancy is allowed, normal movement by passengers occurs (i.e., main aisle, cross aisle or galley complex) that would impede egress from the OFAR compartment. If an evacuation route is in an area where normal movement of passengers occurs, it must be demonstrated that passengers would not impede egress to the main deck. If there is low headroom at or near the evacuation route, provisions must be made to prevent or to protect occupants of the OFAR compartment from head injury. The use of evacuation routes must not depend on any powered device. If the evacuation path is over an area where there are passenger seats, a maximum of five passengers may be temporarily displaced from their seats when evacuating an incapacitated person(s). If the evacuation procedure involves the evacuee stepping on seats, the seats must not be damaged to the extent that they would not be acceptable for occupancy during an emergency landing.

(c) Emergency evacuation procedures, including procedures for emergency evacuation of an incapacitated occupant from the OFAR compartment, must be established. All of these procedures must be transmitted to the operator for incorporation into its training programs and appropriate operational manuals.

(d) A limitation must be included in the airplane flight manual or other suitable means requiring that crewmembers be trained in the use of evacuation routes.

3. There must be a means for evacuating an incapacitated person (representative of a ninety-fifth percentile male) from the OFAR compartment to the passenger cabin floor. The evacuation must be demonstrated for all evacuation routes. A crewmember (a total of one assistant within the OFAR compartment) may provide assistance in the evacuation. Additional assistance may be provided by up to three persons in the main passenger compartment. These additional assistants must be standing on the floor while providing assistance. For evacuation routes with stairways, the additional assistants may ascend up to one half the elevation change from the main deck to the OFAR compartment, or to the first landing, whichever is lower.

4. The following signs and placards must be provided in the OFAR compartment:

(a) At least one exit sign, located near each exit, meeting the emergency lighting requirements of § 25.812(b)(1)(i); however, a sign with a reduced background area of no less than 5.3 square inches (excluding the letters) may be used, provided it is installed so the material surrounding the exit sign is light in color (e.g., white, cream, light beige). If the material surrounding the exit sign is not light in color, a sign with a minimum of a one-inch wide background border around the letters is acceptable.

(b) An appropriate placard located conspicuously on or near each exit defining the location and operating instructions for each evacuation route.

(c) Placards must be readable from a distance of 30 inches under emergency lighting conditions.

(d) The evacuation path operating instruction placards required by Special Condition 4(b) of these special conditions must be illuminated to at least 160 microlamberts under emergency lighting conditions.

5. A means must be available, in the event of failure of the airplane's main power system, or of the normal OFAR compartment lighting system, for emergency illumination to be automatically provided in the OFAR compartment.

(a) This emergency illumination must be independent of the main lighting system.

(b) The sources of general cabin illumination may be common to both the emergency and the main lighting systems if the power supply to the emergency lighting system is independent of the power supply to the main lighting system.

(c) The illumination level must be sufficient for the occupants of the OFAR compartment to locate and move to the main passenger cabin floor by means of each evacuation route.

6. A means must be available for two-way voice communications between crewmembers on the flight deck and occupants of the OFAR compartment. Two-way voice communications must also be available between the occupants of the OFAR compartment and each flight attendant station in the passenger cabin that is required to have a public address system microphone per § 25.1423(g). In addition, the public address system must include provisions to provide only the relevant information to the flight attendants in the OFAR compartment (e.g., fire in flight, airplane depressurization, or preparation of the compartment occupants for landing).

7. A means must be available for manually activating an aural emergency alarm system, audible during normal and emergency conditions, to enable crewmembers on the flight deck and at each pair of required floor level emergency exits to alert occupants of the OFAR compartment of an emergency situation. Use of a public address or crew interphone system is acceptable, provided an adequate means of differentiating between normal and emergency communications is incorporated. The system must be powered in flight for at least 10 minutes after the shutdown or failure of all engines and auxiliary power units (APUs).

8. A means, readily detectable by seated or standing occupants of the OFAR compartment, must be in place to indicate when seat belts should be fastened. In the event there are no seats, at least one means must be provided to cover anticipated turbulence (e.g., sufficient handholds). Seat belt type restraints must be provided for berths and must be compatible with the sleeping position during cruise conditions. There must be a placard on each berth requiring seat belts to be fastened when occupied. If compliance with any of the other requirements of these special conditions is predicated on a specific head position, there must be a placard identifying that head position.

9. In lieu of the requirements specified in § 25.1439(a) pertaining to isolated compartments, and to provide a level of safety equivalent to that provided to occupants of an isolated galley, the following equipment must be provided in the OFAR compartment:

(a) At least one approved hand-held fire extinguisher appropriate for the kinds of fires likely to occur.

(b) Two PBE devices suitable for firefighting, or one PBE for each hand-held fire extinguisher, whichever is greater. All PBE devices must be approved to Technical Standard Order (TSO)-C116, Crewmember Portable Protective Breathing Equipment, or equivalent.

(c) One flashlight.

10. A smoke or fire detection system (or systems) must be provided that monitors each occupiable area within the OFAR compartment, including those areas partitioned by curtains. Flight tests must be conducted to show compliance with this requirement. If a fire occurs, each system (or systems) must provide:

(a) A visual indication to the flightdeck within one minute after the start of a fire.

(b) An aural warning in the OFAR compartment.

(c) A warning in the main passenger cabin. This warning must be readily detectable by a flight attendant, taking into consideration the positioning of flight attendants throughout the main passenger compartment during various phases of flight.

11. A means to fight a fire must be provided. This can be either a built-in extinguishing system or manual, hand-held bottle extinguishing system.

(a) For a built-in extinguishing system:

(1) The system must have adequate capacity to suppress a fire considering the fire threat, compartment volume, and ventilation rate. The system must have sufficient extinguishing agent to provide an initial knockdown and suppression environment per the minimum performance standards established for the agent being used.

(2) If the capacity of the extinguishing system does not provide effective fire suppression that will last for the duration of flight from the farthest point in route to the nearest suitable landing site expected in service, an additional manual firefighting procedure must be established. For a built-in extinguishing system, the time needed for effective fire suppression must be established and documented in the firefighting procedures of the airplane flight manual. If the duration of time for demonstrated effective fire suppression provided by the built-in extinguishing agent will be exceeded, the firefighting procedures must instruct the crew to:

(i) Enter the OFAR compartment at the time that demonstrated fire suppression effectiveness will be exceeded.

(ii) Check for and extinguish any residual fire.

(iii) Confirm that the fire is out.

(b) For a manual, hand-held bottle extinguishing system (designed as the sole means to fight a fire or to supplement a built-in extinguishing system of limited suppression duration) for the OFAR compartment:

(1) A limitation must be included in the airplane flight manual or other suitable means requiring that crewmembers be trained in the firefighting procedures.

(2) The compartment design must allow crewmembers equipped for firefighting to have unrestricted access to all parts of the compartment.

(3) The time for a crewmember on the main deck to react to the fire alarm, don the firefighting equipment, and gain access to the OFAR compartment must not exceed the time for the compartment to become smoke-filled, making it difficult to locate the fire source.

(4) Approved procedures describing methods for searching the OFAR compartment for fire source(s) must be established. These procedures must be transmitted to the operator for incorporation into its training programs and appropriate operational manuals.

12. A means must be provided to prevent hazardous quantities of smoke or extinguishing agent originating in the OFAR compartment from entering any other compartment occupied by crewmembers or passengers. This means must include the time periods during the evacuation of the OFAR compartment and, if applicable, accessing the OFAR compartment to manually fight a fire. When access to the OFAR compartment is open for emergency evacuation all smoke entering any other compartment occupied by crewmembers or passengers must dissipate within five minutes after access to the OFAR compartment is closed. Hazardous quantities of smoke may not enter any other compartment occupied by crewmembers or passengers during access to manually fight a fire in the OFAR compartment. The amount of smoke entrained by a firefighter exiting the OFAR compartment is not considered hazardous. During the one-minute smoke detection time, penetration of a small quantity of smoke from the OFAR into an occupied area is acceptable. Flight tests must be conducted to show compliance with this requirement.

(a) A provision in the firefighting procedures must ensure that all door(s) and hatch(es) at the OFAR compartment outlets are closed after the compartment is evacuated and during firefighting to minimize smoke and extinguishing agent from entering other occupiable compartments.

(b) If a built-in fire extinguishing system is used in lieu of manual firefighting, the fire extinguishing system must be designed so no hazardous quantities of extinguishing agent enter other compartments occupied by passengers or crew. The system must have adequate capacity to suppress any fire occurring in the OFAR compartment, considering the fire threat, compartment volume, and ventilation rate.

13. There must be a supplemental oxygen system for each seat and berth in the OFAR compartment equivalent to that provided for main deck passengers. The system must provide an aural and visual alert to warn occupants of the OFAR compartment to don oxygen masks in the event of decompression. The aural and visual alerts must activate before the cabin pressure altitude exceeds 15,000 feet. The aural warning must sound continuously for a minimum of five minutes or until a reset push button in the OFAR compartment is depressed. Procedures must be established for instructing OFAR compartment occupants what to do in the event of decompression. These procedures must be transmitted to the operator for incorporation into its training programs and appropriate operational manuals.

14. The following requirements apply to OFAR compartments divided into several sections by installing curtains or partitions:

(a) To compensate for sleeping occupants, there must be an aural alert that can be heard in each section of the OFAR compartment that accompanies automatic presentation of supplemental oxygen masks. A visual alert that informs occupants that they must don oxygen masks is required in each section where seats or berths are not installed. Each seat or berth must have at least two supplemental oxygen masks. A means must be in place by which oxygen masks can be manually deployed from the flight deck.

(b) A placard is required adjacent to each curtain that visually divides or separates, for privacy purposes, the OFAR compartment into multiple sections. The placard must require that the curtain(s) remains open when the private section it creates is unoccupied. The vestibule section adjacent to the stairway is not considered a private section and, therefore, does not require a placard.

(c) For each section of the OFAR compartment created by the installation of a curtain, the following requirements must be met with the curtain open or closed:

(1) No smoking placard (Special Condition No. 1).

(2) Emergency illumination (Special Condition No. 5).

(3) Emergency alarm system (Special Condition No. 7).

(4) Seat belt fasten signal or return to seat signal as applicable (Special Condition No. 8).

(5) A smoke or fire detection system (Special Condition No. 10).

(d) OFAR compartments that are visually divided to the extent that evacuation could be affected must have exit signs directing occupants to the primary stairway exit. The exit signs must be provided in each separate section of the OFAR compartment, except for curtained bunks, and must meet the requirements of § 25.812(b)(1)(i).

(e) Sections within an OFAR compartment created by installing a rigid partition with a door physically separating the sections, must meet the following requirements with the door open or closed:

(1) A secondary evacuation route from each section to the main deck, or the applicant must show that any door between the sections precludes anyone from being trapped inside the compartment. Removing an incapacitated occupant from this area must be considered. A secondary evacuation route from a small room designed for only one occupant for a short period of time, such as a changing area or lavatory, is not required. However, removing an incapacitated occupant from a small room, such as a changing area or lavatory, must be considered.

(2) Any door between the sections must be shown to be openable when crowded against, even when crowding occurs at each side of the door.

(3) No more than one door may be located between any seat or berth and the primary stairway exit.

(4) Each section must have exit signs that meet the requirements of § 25.812(b)(1)(i) and direct occupants to the primary stairway exit. An exit sign with reduced background area as described in Special Condition No. 4(a) may be used to meet this requirement.

(f) For each section of the OFAR compartment created by the installation of a partition with a door, the following requirements must be met with the door open or closed:

(1) No smoking placards (Special Condition No. 1).

(2) Emergency illumination (Special Condition No. 5).

(3) Two-way voice communication (Special Condition No. 6).

(4) Emergency alarm system (Special Condition No. 7).

(5) Seat belt fasten signal or return to seat signal as applicable (Special Condition No. 8).

(6) Emergency firefighting and protective equipment (Special Condition No. 9).

(7) Smoke or fire detection system (Special Condition No. 10).

15. Special Conditions 6 (two-way voice communication with the flight deck) and 9 (emergency firefighting and protective equipment) are not applicable to lavatories or other small areas that are not intended to be occupied for extended periods of time.

16. If a waste disposal receptacle is fitted, it must be equipped with an automatic fire extinguisher that meets the performance requirements of § 25.854(b).

17. Materials (including finishes or decorative surfaces applied to the materials) must comply with the flammability requirements of § 25.853(a), as amended by Amendment 25-83. Mattresses and seat cushions must comply with the flammability requirements of § 25.853(c), as amended by Amendment 25-83.

18. The addition of a lavatory within the OFAR compartment would require the lavatory to meet the same requirements as those for a lavatory installed on the main deck except with regard to Special Condition No. 10 for smoke detection.

19. All enclosed stowage compartments within the OFAR compartment that are not limited to stowage of emergency equipment or airplane supplied equipment (e.g., bedding) must meet the design criteria given in the table below. Enclosed stowage compartments greater than 200 ft 3 in interior volume are not addressed by this special condition. The in-flight accessibility of very large, enclosed, stowage compartments and the subsequent impact on the crewmembers' ability to effectively reach any part of the compartment with the contents of a hand-held fire extinguisher will require additional fire protection considerations similar to those required for inaccessible compartments, such as Class C cargo compartments.

The material used in constructing each enclosed stowage compartment must at least be fire resistant and must meet the flammability standards established for interior components (i.e., 14 CFR part 25 Appendix F, parts I, IV, and V) per the requirements of § 25.853. For compartments less than 25 ft 3 in interior volume, the design must ensure the ability to contain a fire likely to occur within the compartment under normal use.

Enclosed stowage compartments equal to or exceeding 25 ft 3 in interior volume must be provided with a smoke or fire detection system to ensure that a fire can be detected within a one-minute detection time. Flight tests must be conducted to show compliance with this requirement. Each system (or systems) must provide:

(a) A visual indication in the flight deck within one minute after the start of a fire.

(b) An aural warning in the OFAR compartment.

(c) A warning in the main passenger cabin. This warning must be readily detectable by a flight attendant, taking into consideration the positioning of flight attendants throughout the main passenger compartment during various phases of flight.

If material used in constructing the stowage compartment can be shown to meet the flammability requirements of a liner for a Class B cargo compartment (i.e., § 25.855 at Amendment 25-93, and Appendix F, part I, paragraph (a)(2)(ii)), then no liner would be required for enclosed stowage compartments equal to or greater than 25 ft 3 in interior volume but less than 57 ft 3 in interior volume. For all enclosed stowage compartments equal to or greater than 57 ft 3 in interior volume but less than or equal to 200 ft 3 , a liner must be provided that meets the requirements of § 25.855 for a Class B cargo compartment.

If an OFAR compartment has enclosed stowage compartments exceeding 25 ft 3 interior volume that are located separately from the other stowage compartments (for example, away from one central location, such as the entry to the OFAR compartment or a common area within the OFAR compartment) that compartment would require additional fire protection features and/or devices to assist the firefighter in determining the location of a fire.

We invite interested people to take part in this rulemaking by sending 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 special conditions. You can inspect the docket 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 preamble 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 these special conditions based on the comments we receive.

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

On November 4, 2005, The Boeing Company applied for an amendment to Type Certificate Number A20WE to include the 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) 21.17, Boeing must show that the Model 747-8 (hereafter referred as 747-8) meets the applicable provisions of part 25, as amended by Amendments 25-1 through 25-120 plus Amendment 25-127 for § 25.765(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 the model be amended later to include any other model or series that incorporates the same 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 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. Section 25.810(a)(1)(iii) requires that after full deployment the emergency escape system assist means must be long enough so that the lower end is self-supporting on the ground and provides safe evacuation of occupants to the ground after collapse of one or more legs of the landing gear. Typically, airplanes have fixed-length slides that meet the above requirements. However, it was not possible to use fixed-length slides for the 747-8 Door 1 because of the difference between normal sill height and the high-sill height associated with collapse of some of the landing gear in an emergency. Some combinations of landing gear collapse could cause the airplane to tip back on its tail. The 747-8 Door 1 escape slide is an extendable length design to meet the gear collapse and tail tip conditions. The regulations do not adequately address the certification requirements for an extended length escape slide.

The regulations governing the certification of the 747-8 do not adequately address the certification requirements for an extendable length escape slide. The only reference to extendable length escape slides in Technical Standard Order (TSO) C69c, Emergency Evacuation Slides, Ramps, Ramp/Slides, and Slide/Rafts, is in the inflation time requirement section. The requirements of § 25.801(a)(1)(iii) for other airplanes has been addressed by a single length escape slide. However, for the 747-8 Door 1, it was not possible to have a single length escape slide because of the extreme difference in sill heights between normal sill height and high-sill height associated with collapse of some of the landing gear, and the additional case of the airplane tipping back on its tail. For Door 1, the normal sill height is approximately 187 inches, and the high-sill height is approximately 346 inches.

The proposed design of the extendable length escape system has an approximately 12 foot long extension packed at the toe end of the escape slide. During normal operation, the extension portion remains packed at the toe end. The airplane is equipped with an electronic sensor that evaluates the attitude of the airplane, and determines if the extendable portion is needed. When the extended length is needed, the system sends a signal to an electronic sign on the door to indicate to the flight attendant that the extendable length of the slide needs to be inflated. The extendable length inflation system is activated by pulling on a separate inflation handle located on the right side of the slide girt.

The Airbus A380 airplane has an extendable length slide and the FAA issued Special Conditions Number 25-323-SC to address the installation of the extendable length escape slide in that airplane. These previously issued special conditions provide a starting point for developing special conditions for the 747-8 airplane, which consider and evaluate the unique aspects of this airplane's design.

The extension is intended only for use at high-sill heights. A typical fixed-length slide operating at high-sill height does not satisfy all of the performance requirements of § 25.810, but its variations in performance are understood and largely predictable. Certain performance criteria are valid regardless of sill height, while other aspects of performance can be expected to decline at higher sill heights. With an extendable slide, there is a step change in configuration and potentially a change in performance. Therefore, special conditions are needed to ensure acceptable performance in the extended mode.

Section 25.810 specifies the basic performance requirements for escape slides, including wind testing, repeatability testing, and testing at adverse sill heights. Section 25.1309(a) requires systems to perform under foreseeable operating conditions, such as extreme temperatures, and demonstrate that the system design is appropriate for its intended function. Standards for the equipment itself are in TSO-C69c and contribute to a satisfactory installation.

Typically, wind tests are only conducted on fixed-length slides at normal sill height. Since the regulations require that the escape slides have the capability of being deployed in 25-knot winds directed from the most critical angle, escape slides usually exceed 25 knot performance at other than the critical angle. The same is expected to be true of the slide in its extended mode, but some reduction in the required wind velocity is appropriate since the slide will be in an abnormal condition. Available data indicate that the capability of being deployed in 22-knot winds is appropriate to cover the slide in its extended mode at normal sill height. This corresponds to roughly 75% of the wind energy required for the slide in its normal attitude and will ensure that the slide can function in its extended mode at least as well as a fixed-length slide under similar abnormal conditions.

These special conditions also specify a rate for passenger evacuation that is consistent with that of fixed-length escape slides.

As discussed above, these special conditions are applicable to the Boeing Model 747-8 airplane. 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 feature, the special conditions would apply to that model as well under the provisions of § 21.101.

Certification of the Boeing Model 747-8 is currently scheduled for November 2011. The substance of these special conditions has been subject to the notice and public-comment procedure in several prior instances. Therefore, because a delay would significantly affect both the applicant's installation of the system and certification of the airplane, we are shortening the public-comment period to 20 days.

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 Model 747-8 airplanes.

In addition to the provisions of 14 CFR part 25, the following special conditions are proposed:

1. The extendable escape slide must receive TSO-C69c or latest TSO authorization published at the time of TSO application for the Door 1 Slide.

2. In addition to the requirements of § 25.810(a)(1)(iii) for usability in conditions of landing gear collapse, the deployed escape slide in the extended mode must demonstrate an evacuation rate of 45 persons per minute per lane at the sill height corresponding to activation of the extension.

3. In lieu of the requirements of § 25.810(a)(1)(iv), the escape slide with the extendable section activated must be capable of being deployed in 22-knot winds directed from the critical angle, with the airplane on all its landing gear, with the assistance of one person on the ground. Two deployment scenarios must be addressed as follows:

(a) Extendable section is activated during the inflation time of the basic slide and,

(b) Extendable section is activated after the basic slide is completely inflated.

4. Pitch sensor tolerances and accuracy must be taken into account when demonstrating compliance with § 25.1309(a) for the escape slide in both extended and unextended modes.

5.(a) There must be a “slide extension” warning such that the cabin crew is immediately made aware of the need to deploy the extendable section of the slide. The ability to provide such a warning must be available for ten minutes after the airplane is immobilized on the ground.

(b) There must be a positive means for the cabin crew to determine that the extendable portion of the slide has been fully erected.

6. Whenever passengers are carried on the main deck of the airplane, there must be a cabin crewmember stationed on each side of the airplane located near each Door 1 Exit. This special condition must be included in the airplane flight manual as a limitation.

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-0088; Directorate Identifier 2010-CE-072-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We proposed to amend 14 CFR part 39 with an earlier NPRM for the specified products, which was published in the Federal Register on January 31, 2011 (76 FR 5298). That earlier NPRM proposed to require actions intended to address the unsafe condition for the products listed above.

Since that NPRM was issued, EMBRAER issued new service information that adds actions to inspect the sensor area and apply sealant around the sensors and also adds additional airplanes to the applicability.

The Agência Nacional de Aviação Civil—Brazil (ANAC), which is the aviation authority for Brazil, has issued Notice of Proposed Regulation (NPR) NPR/AD 2011-500-02, dated March 31, 2011, to add additional information from the revised service information to correct an unsafe condition for the specified products. The NPR states:

Embraer—Empresa Brasileira de Aeronautica S.A. has issued PHENOM Service Bulletin SB No.: 500-27-0006, Revision No.: 02, dated January 14, 2011. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

We have considered the following comments received on the earlier NPRM.

Embraer commented that new requirements to inspect the sensor area and apply sealant around the interface between the angle of attack (AOA) covers and the new AOA sensors were included in a revision to the service information referenced in the earlier NPRM. If the new requirements in the revised service information were not included in the proposed NPRM action, the new AOA sensors could be subject to the same behavior as the old AOA sensors. Embraer suggests changing the proposed NPRM to include the actions and procedures required by the new revised service information.

We agree with this comment. If we do not incorporate the additional actions and procedures required by the revised service information, moisture could still accumulate and freeze, under certain conditions, in the gap between the new AOA vane base assembly and the stationary ring of the new sensor's body. This condition could cause the sensors to get stuck and cause the Stall Warning Protection System to no longer be effective. We propose the use of PHENOM Service Bulletin SB No.: 500-27-0006, Revision No.: 02, dated January 14, 2011, which incorporates the actions previously proposed and adds additional actions and procedures to require inspecting the sensor area and applying sealant around the interface between the AOA covers and the AOA sensors.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

Certain changes described above expand the scope of the earlier NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on the proposed AD.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.

We estimate that this proposed AD will affect 101 products of U.S. registry.

We estimate that 85 products of U.S. registry would require the modification and that it would take about 9.5 work-hours per product to comply with the modification requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $1,550 per product.

Based on these figures, we estimate the cost of the modification requirement of the proposed AD on U.S. operators to be $200,387.50, or $2,357.50 per product.

We estimate that 101 products of U.S. registry would require an inspection for sealant application. We estimate it would take .5 hours to comply with the inspection requirements of this proposed AD.

Based on these figures, we estimate the cost of the inspection for the sealant application requirement of the proposed AD on U.S. operators to be $4,292.50, or $42.50 per product.

In addition, we estimate that any necessary follow-on actions would take about 1.5 work-hours and require parts costing $50, for a cost of $177.50 per product. We have no way of determining the number of products that may need these actions.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-0389; Directorate Identifier 2007-NM-189-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

On December 20, 1989, we issued AD 90-01-10, Amendment 39-6448 (55 FR 261, January 4, 1990). That AD required actions intended to address an unsafe condition on the products listed above.

Since we issued AD 90-01-10, Airbus has refined the inspection program for cracking at areas of the fuselage defined in AD 90-01-10 as “special areas” (paragraph A.1. of AD 90-01-10), “standard areas” (paragraph A.2. of AD 90-01-10), and “modified or repaired areas” (paragraph A.3. of AD 90-01-10). The new inspection program is designed to allow airplanes to reach their limit of validity (LOV). Certain compliance times are reduced and certain other compliance times are extended.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2007-0091, dated April 10, 2007, and corrected June 23, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Airbus has issued Service Bulletin A300-53-229, Revision 5, dated April 8, 1997; and Mandatory Service Bulletin A300-53-0211, Revision 07, dated December 1, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 5 products of U.S. registry.

We estimate that it would take about 3,735 work-hours per product to comply with the new basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $1,587,375, or $317,475 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

On November 18, 2010, NIGC issued a Notice of Inquiry and Notice of Consultation advising the public that the NIGC was conducting a comprehensive review of all regulations promulgated to implement 25 U.S.C. 2701-2721 of the Indian Gaming Regulatory Act (IGRA) and requesting public comment on the process for conducting the regulatory review. On April 4, 2011, NIGC published a Notice of Regulatory Review Schedule setting out detailed consultation schedules and review processes.

The Commission's regulatory review process establishes three phases of review: A Drafting Phase, a Notice of Proposed Rulemaking Phase, and a Notice of Final Rule Phase. The Drafting Phase is intended to provide for tribal participation early in the drafting or amendment of any rule with tribal implications. During the drafting phase, the Commission may circulate a preliminary draft, preliminary proposed amendments to a current regulation, or preliminary proposals provided by Tribes or tribal organizations. The Drafting Phase includes an opportunity for the public to provide written comments on preliminary drafts. On April 22, 2011, the Commission released a preliminary draft of amendments to 25 CFR Part 514. This document establishes a May 31, 2011 deadline to provide written comments on the preliminary draft of Part 514.

This document also advises the public that any future preliminary drafts of regulations or amendments released by the Commission will include a deadline for the submittal of written comments to the Commission. The Commission intends to provide the public at least 30 days for the submittal of written comments on preliminary drafts.

If submitting by electronic mail: send to reg.review@nigc.gov a message containing the name of the person making the submission, his or her title and organization (if the submission of an organization), mailing address, telephone number, fax number (if any), and e-mail address. The document itself must be sent as an attachment and must be in a single file and in recent, if not current, versions of: (1) Adobe Portable Document File (PDF) format (preferred); or (2) Microsoft Word file formats.

If submitting by print only: Anyone who is unable to submit a comment in electronic form should submit an original and two paper copies by hand or by mail to the address listed above. Use of surface mail is strongly discouraged owing to the uncertainty of timely delivery.

The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.

Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.

National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Executive Order 12866, Regulatory Planning and Review. This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866, as amended.

Executive Order 13132, Federalism. This proposed rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This proposed rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR part 67 is proposed to be amended as follows:

The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.

Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.

National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Executive Order 12866, Regulatory Planning and Review. This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866, as amended.

Executive Order 13132, Federalism. This proposed rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This proposed rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR part 67 is proposed to be amended as follows:

The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.

Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.

National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Executive Order 12866, Regulatory Planning and Review. This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866, as amended.

Executive Order 13132, Federalism. This proposed rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This proposed rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR part 67 is proposed to be amended as follows:

The Federal Emergency Management Agency (FEMA) publishes proposed determinations of Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs for communities participating in the National Flood Insurance Program (NFIP), in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are minimum requirements. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.

In the proposed rule published at 75 FR 68744, in the November 9, 2010, issue of the Federal Register , FEMA published a table under the authority of 44 CFR 67.4. The table, entitled “La Porte County, Indiana, and Incorporated Areas” addressed several flooding sources, including Lake Michigan and White Ditch. That table incorrectly listed the City of Michiana Shores among the communities affected by the modified BFEs for Lake Michigan and White Ditch and listed the incorrect name of the community in the list of map repository addresses. The correct name of the community is the Town of Michiana Shores, and its map repository is located at the Town Hall, 601 El Portal South Drive, Michiana Shores, Indiana 46360. This proposed rule correction is reopening the comment period for the modified BFEs for Lake Michigan and White Ditch, for the Town of Michiana Shores, due to the error in listing this community as the City of Michiana Shores in the previously published proposed rule at 75 FR 68744.

The Federal Emergency Management Agency (FEMA) publishes proposed determinations of Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs for communities participating in the National Flood Insurance Program (NFIP), in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are minimum requirements. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.

In the proposed rule published at 76 FR 8978, in the February 16, 2011, issue of the Federal Register , FEMA published a table under the authority of 44 CFR 67.4. The table, entitled “Unincorporated Areas of Yolo County, California” addressed the flooding source Cache Creek Settling Basin. That table contained inaccurate information as to the location of referenced elevation, effective and modified elevation in feet, and/or communities affected for this flooding source. In this notice, FEMA is publishing a table containing the accurate information, to address these prior errors. The information published in the Federal Register on February 16, 2011, for Cache Creek Settling Basin has been divided into individual descriptions for Cache Creek, Cache Creek Left Bank Overflow, and Cache Creek Right Bank Overflow to provide more detailed information on the area affected by these proposed BFEs and modified BFEs. The City of Woodland also has been added as a community affected by Cache Creek Right Bank Overflow. The information provided below should be used in lieu of that previously published for Cache Creek Settling Basin.

This is a summary of the Commission's Notice of Proposed Rulemaking (“NPRM”) in WT Docket No. 10-4, FCC 10-53, adopted on April 5, 2011, and released on April 6, 2011. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: http://www.fcc.gov. Alternative formats are available to persons with disabilities by sending an e-mail to fcc504@fcc.gov. or by calling the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

1. This rulemaking shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented generally is required. Other requirements pertaining to oral and written presentations are set forth in § 1.1206(b) of the Commission's rules.

2. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, and 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.

• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours are 8 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, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554.

3. Parties should send a copy of their filings to Joyce Jones, Federal Communications Commission, Room 6404, 445 12th Street, SW., Washington, DC 20554, or by e-mail to joyce.jones@fcc.gov. Parties shall also serve one copy with the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, (202) 488-5300, or via e-mail to fcc@bcpiweb.com.

4. Documents in WT Docket No. 10-4 will be available for public inspection and copying during business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. The documents may also be purchased from BCPI, telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 488-5562, e-mail fcc@bcpiweb.com.

5. 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) or 202-418-0432 (TTY). Contact the FCC to request reasonable accommodations for filing comments (accessible format documents, sign language interpreters, CART, etc.) by e-mail: FCC504@fcc.gov ; phone: 202-418-0530 or TTY: 202-418-0432.

6. This document contains a proposed or a modified information collection. Accordingly, we seek comment on the impact of this NPRM on information collections, pursuant to the Paperwork Reduction Act of 1995.

7. In this document, the Commission initiates a proceeding to facilitate the development and deployment of well-designed signal boosters, which hold great potential to empower consumers in rural and underserved areas to improve their wireless coverage in their homes, at their jobs, and when they travel by car, recreational vehicle, or boat. The Notice of Proposed Rulemaking (NPRM) proposes a new regulatory framework authorizing individuals and entities to operate “consumer signal boosters” provided the devices comply with: (1) All applicable technical and radiofrequency (RF) exposure rules, and (2) a set of parameters aimed at preventing and controlling interference and rapidly resolving interference problems should they occur. A consumer signal booster is any signal booster operated by (or for the benefit of) consumers on spectrum being used to provide subscriber-based services, e.g. , voice communications, texting, using a broadband connection to access e-mail or the Internet. The Commission also proposes revisions to the rules governing signal boosters used for private land mobile services.

8. In addition, the Commission addresses three petitions for rulemaking filed by Bird Technologies, Inc. (filed Aug. 18, 2005), the DAS Forum (a membership section of PCIA—the Wireless Infrastructure Association) (filed Oct. 23, 2009) (DAS Forum), and Wilson Electronics, Inc. (filed Nov. 3, 2009), and a petition for declaratory ruling filed by Jack Daniel DBA Jack Daniel Company (filed Sept. 25, 2008), all of which relate to signal boosters.

9. The Commission proposes to license the use of signal boosters by rule under section 307(e) of the Communications Act, 47 U.S.C. 307(e). 47 U.S.C. 307(e)(1) states in part that, “[n]otwithstanding any license requirement established in this Act, if the Commission determines that such authorization serves the public interest, convenience, and necessity, the Commission may by rule authorize the operation of radio stations without individual licenses in the following radio services: (A) Citizens band radio service; * * * ” section 307(e) states further that, “[f]or purposes of this subsection, the terms ‘citizens band radio service', * * * shall have the meanings given them by the Commission by rule.” The Commission believes that a license-by-rule framework would be the best approach for enabling operation of properly certificated signal boosters, particularly because it would obviate the need for burdensome individual licensing requirements. The Commission's proposed regulatory framework would facilitate operation of signal boosters to enhance wireless coverage and access to broadband services, while minimizing administrative costs and burdens on the public, Commission licensees, and agency staff, thus serving the public interest, convenience and necessity.

10. The Commission tentatively concludes that authorizing the operation of properly certificated signal boosters by rule under section 307(e) of the Act would further the public interest, convenience, and necessity. Signal boosters provide substantial public benefits for consumers by improving wireless coverage in rural, indoor, and other hard to serve locations where wireless coverage may be deficient. However, because the Commission proposes to authorize operation of signal boosters on licensed spectrum, the Commission further proposes that any such use would be on a secondary, non-interfering basis, and would have to meet the proposed technical parameters of operation, which are designed to prevent, control, and quickly resolve any interference should it occur.

11. Manufacturing Requirements . The Commission proposes that all consumer signal boosters must meet all applicable technical specifications for the relevant band(s) of operation as they apply to mobile units ( i.e. , not base station technical specifications). The applicable rules are 47 CFR 22.355, Public Mobile Services frequency tolerance; 47 CFR 22.913, Cellular effective radiated power limits; 47 CFR 22.917, Emission limitation for cellular equipment; 47 CFR 24.232, PCS power and antenna height limits; 47 CFR 24.238, Emission limitations for Broadband PCS equipment; 47 CFR 27.50, Miscellaneous Wireless Communications Services power and antenna height limits; 47 CFR 27.53, Miscellaneous Wireless Communications Services emission limits; 47 CFR 90.205, Private Land Mobile Radio Services power and antenna height limits; 47 CFR 90.210, Private Land Mobile Radio Services emission masks; 47 CFR 90.219, Private Land Mobile Radio Services use of signal boosters; and 47 CFR 90.247, Private Land Mobile Radio Services mobile repeater stations. The Commission seeks detailed comment on our proposal and proposed rule language set forth below that signal boosters must comply with all applicable technical requirements for mobile units for the bands they will operate on. In addition, the Commission seeks comment on whether any other technical specifications should apply and the costs and benefits of adopting such additional technical requirements.

12. The Commission also proposes that all signal boosters must monitor the device's compliance with all applicable technical requirements for mobile devices for the band in which they operate ( e.g. power, out-of-band emissions (OOBE)). The Commission believes base station technical limits are not applicable because they would allow significantly higher power levels, which are not warranted for this service. If it is determined that the device is operating outside of the applicable technical parameters, the Commission proposes that the device must be capable of shutting itself down automatically within ten (10) seconds (or less). The Commission further proposes that the device must remain off for at least one (1) minute before restarting. If after five (5) restarts, the device is still not operating consistent with applicable technical rules, it must shut off and remain off until manually restarted by the device operator. The Commission also proposes that all signal boosters must detect feedback or oscillation (such as may result from insufficient isolation between the antennas) and deactivate the uplink transmitter within 10 seconds of detection. After such deactivation, the booster must not resume operation until manually reset. These built-in technological safeguards would minimize the potential for harmful interference to wireless networks.

13. The Commission seeks detailed comment on its proposal and proposed rule language set forth below, including the appropriate triggers to initiate device shut down. In addition, the Commission queries whether signal boosters should monitor for any other parameters and, if so, how such monitoring would be accomplished and at what additional cost. Further, the Commission seeks specific comment on whether the existing technical rules that apply to mobile devices in parts 22, 24 and 27 are appropriate for all signal booster devices. Are these technical limits adequate to address varying types of signal booster installations, e.g. , personal use vs. carrier and enterprise installations, which are typically professionally installed and designed to cover large areas such as office buildings or arenas? The Commission notes that signal boosters can be designed for use on both the Personal Communications Service (PCS) and Cellular Radiotelephone Service bands, but different technical requirements apply to these bands; does this create unnecessary design challenges for signal booster manufacturers? The Commission also notes that mobile subscriber unit power is subject to an effective radiated power (ERP) limit, which is appropriate for devices with integrated antennas, while most signal boosters do not have integrated antennas. Would transmitter output power be a more appropriate power limit measure for signal booster devices? The Commission requests detailed comment on the appropriate technical limits that should apply to signal boosters for each band of operation, including the associated costs and benefits.

14. The Commission also seeks comment on other technical requirements that may be necessary to ensure signal boosters do not negatively affect carriers' networks. For example, some commenters expressed concern that wideband signal boosters generate additional radio frequency (RF) noise that can reduce the capacity and reliability of the network even when subscriber signals are not amplified. We seek detailed comment and analyses on the impact of wideband signal booster use on wireless networks. How are these impacts different from narrowband signal boosters? How can wideband signal boosters be designed to avoid potential problems? Can specific device features minimize network impact, e.g. , programmability to a specific frequency block or powering on only when needed to amplify a signal? Specifically, how would such design features affect device cost?

15. RF Exposure. The Commission proposes to apply the relevant part 22, 24, 27 or 90 mobile station technical requirements to signal boosters. In addition, the Commission proposes to prohibit signal boosters that are designed to be used so that the radiating structure(s) is/are within 20 centimeters of the user or other persons, as defined for portable devices in § 2.1093(b). Thus, the Commission proposes to permit only fixed and mobile signal boosters, which will be governed by the RF exposure rules regarding how the devices are deployed. The RF exposure rules in §§ 1.1307 and 2.1091 of the Commission's rules outline exposure limits, equipment authorization requirements, and other regulatory requirements that are based on the type of device, how it is deployed or used, the power of its transmissions, and the proximity of its antenna and radiating structures to a person's body. To maintain RF exposure compliance, the operation of signal boosters can be highly dependent on how they are installed and operated with respect to the fixed and mobile exposure conditions required by §§ 1.1307 and 2.1091; therefore, in addition to the routine evaluation currently required under § 2.1091 for parts 22, 24, 27 and 90 devices, clear installation and user operating instructions/requirements are proposed to be necessary for installers and end users to satisfy RF exposure requirements.

16. The Commission's existing RF exposure rules have proven effective in ensuring compliance for the deployment and use of existing signal boosters, and thus the Commission sees no reason to change the existing RF exposure requirements. The Commission will, however, outline these requirements in a new § 95.1627. Specifically, the Commission proposes to maintain its requirement that routine RF exposure evaluation is required for signal boosters authorized under part 95 that operate under fixed and mobile exposure conditions. The Commission proposes to amend §§ 1.1307(b) and 2.1091 of its rules accordingly. In addition, as required by § 2.1091, applications for equipment authorization shall contain a statement confirming compliance with the RF exposure limits for both the fundamental and unwanted emissions. Further, technical information showing the basis for compliance with RF exposure requirements must be submitted to the Commission upon request. Since signal boosters operating in fixed-mounted configurations are generally deployed similarly to subscriber transceiver antennas, the Commission proposes to require labeling for these types of signal boosters as similarly required for subscriber transceiver antennas in Table 1 of § 1.1307(b)(1). The Commission seeks comment on all aspects of our proposal.

17. Labeling and Marketing Requirements. The Commission proposes that all signal boosters must be labeled and marketed to consumers with clear information specifying the legal use of the device. Numerous commenters request a marketing and/or labeling requirement for signal boosters. Specifically, the Commission proposes that marketing materials must include a prominently placed “consumer disclosure” notifying consumers that the signal booster can only be operated consistent with part 95, Subpart M. For example, for signal boosters offered online or via direct mail or catalog, the consumer disclosure should be prominently displayed in close proximity to the images and descriptions of each signal booster. In addition, the Commission proposes that all signal booster packaging must prominently display the consumer disclosure using a label, either on or otherwise affixed to the package. Specifically the Commission proposes that all signal boosters marketed on or after six months from the effective date of our rules must include the following advisories in 12-point or greater typeface (1) in any marketing materials, (2) in the owner's manual, (3) on the outside packaging of the device, and (4) on a label affixed to the device:

18. The Commission seeks comment on its proposals, including the text of our proposed rules set forth below. In addition, the Commission seeks comment on whether to require manufacturers, retailers, and any other entity marketing or selling signal boosters to display the consumer disclosure language conspicuously at the point-of-sale and on their Web sites. The Commission also seeks comment on whether to include enforcement language as part of the consumer disclosure.

19. Operator Requirements. The Commission also proposes that if a signal booster is causing harmful interference as defined in part 2.1 of its rules, 47 CFR 2.1, the operator of the device must immediately cease operations. While the Commission believes that its proposed rules will facilitate the development and deployment of robust signal boosters which will not harm wireless networks, in the event harmful interference does occur, this safeguard confirms that an interfering signal booster operator must cease operation. The Commission seeks comment on its proposals and proposed rule language set forth below. In addition, the Commission seeks comment on whether and how signal booster operators should be protected from interference from other signal booster operations.

20. The Commission's proposed rules seek to facilitate the development of signal boosters which do not cause harmful interference to wireless networks. Avoiding harmful interference, however, will differ for fixed and mobile signal boosters. Accordingly, in addition to the general requirements discussed above, the Commission proposes additional and separate requirements for fixed and mobile signal boosters.

21. The Commission proposes to require all operators of fixed consumer signal boosters to coordinate frequency selection and power levels with applicable carrier(s) prior to operation. For purposes of this proceeding, the term “fixed signal booster” refers to a signal booster that is operated at a fixed location, e.g. , office building, tunnel, garage, home. The Commission seeks comment on this proposal and its proposed rules, including whether there are other requirements specific to fixed signal boosters that it should mandate. For example, is coordination sufficient to address the power control concerns of Code Division Multiple Access (CDMA) carriers or should all signal boosters be equipped with dynamic power control capabilities? What would be needed to accomplish sufficient dynamic power control and at what cost? In addition, what type of coordination should be required for temporary or emergency deployment of signal boosters? Further, how should the coordination process accommodate a carrier's subsequent network changes? The Commission notes that, as drafted, its proposed rule would permit fixed, outdoor installation of signal boosters. The Commission recognizes, however, that such outdoor installations may pose additional installation challenges for achieving adequate antenna attenuation, among other things. Accordingly, the Commission queries whether additional safeguards are necessary for fixed, outdoor signal booster installations, such as a professional installation requirement?

22. The Commission recognizes that there may be instances where a service provider may not timely respond to coordination requests. The Commission thus seeks comment on how to administer a coordination requirement that balances the need for timely coordination with the resulting burdens on carriers. The Commission seeks detailed comment on how the coordination should be structured, including whether to impose specific timelines for responding to a coordination request and what dispute resolutions procedures are necessary in the event the parties cannot reach a coordination agreement.

23. In order to prevent mobile signal boosters from causing harmful interference to wireless networks, different safeguards are necessary. Unlike fixed devices, mobile signal boosters cannot reasonably be coordinated with nearby carrier base stations in advance. In lieu of that coordination, the Commission seeks to ensure that mobile signal boosters only operate when needed, and cease operations when they are unnecessary. The Commission therefore proposes to require a signal booster operating in a mobile environment to power down or shut down as the device approaches the base station with which it is communicating. If implemented in signal boosters, such a safeguard could protect a service provider's network by mitigating excess noise to base stations from signal boosters that are operating but not needed. The Commission seeks comment on this proposal and proposed rules set forth below, including how this concept would be implemented and enforced. Could the devices simply turn off when not needed or could a dynamic power control similar to that used by mobile phones be implemented in a signal booster? Commenters should address the technical, operational and economic challenges to such an approach.

24. While powering down or shutting down will reduce noise at the base station with which the device is communicating, a signal booster can also introduce noise to other carriers' base stations (the “near-far problem”). For example, a signal booster communicating with Carrier “A,” far from carrier A's base station may be near Carrier “B's” base station and introduce excessive noise to Carrier B. In this vein, the Commission seeks comment on whether and how it should address this problem. How best can a mobile signal booster prevent noise generation with base stations with which it is not communicating? For example, should the Commission only permit carrier-specific signal boosters for mobile applications, or should it require that mobile signal boosters be tethered to the phone or only be approved if they have a docking station to ensure amplification of only the desired signal of the operator? If such protection is necessary, how should it be accomplished? Specifically, how will additional design features influence device cost? Are there other potential problems that manufacturers should address? Several commentators also suggest that mobile signal boosters include some form of automatic gain control to avoid base station overload. The Commission seeks comment on whether we should require devices to have automatic gain control and how that should be accomplished.

25. Four parties—AT&T, CTIA, the Wireless Association, the DAS Forum, and Wilson Electronics, Inc.—submitted alternate proposals which may facilitate the development of well-designed, properly operating and installed signal boosters while controlling, preventing and, if necessary, resolving interference to wireless networks. The Commission carefully examined these proposals and, where appropriate, incorporated specific elements from these proposals where they appeared narrowly tailored to address carriers' concerns about network reliability and management, into the Commission's overall proposal. The Commission seeks comment on these four proposals, including whether additional elements of these proposals should be included in the Commission's comprehensive proposal for signal boosters. For example, the Commission notes that there appears to be some commonality between the proposals submitted by AT&T, CTIA, and Wilson regarding the need for signal boosters to include a form of remote shut-off capability. Should the Commission include remote shut-off capability among the safeguards in its proposed framework and how should it be implemented? In addition, should such a shut-off feature be subject to a quantitative or qualitative standard, e.g. , reasonable network management? Also, should the Commission require boosters to incorporate location detection features as suggested by some commenters? Further, the Commission seeks detailed comment on the impact of signal booster use on network-based E-911 systems, including how manufacturers might implement CTIA's proposal to require signal boosters to include a mechanism for relaying accurate E-911 location information. The Commission also encourages comment on other safeguards not currently included in its proposal or the alternate proposals that could promote signal booster use. Commenters advocating additional safeguards should address the costs and benefits of such additional features.

26. The Commission recognizes that there are signal boosters being operated today by CMRS licensees or others, which will not meet the requirements we propose in the NPRM. The Commission seeks comment on how such boosters should be treated. Further, should the Commission sunset the use of existing signal boosters which do not meet its proposed safeguards or grandfather certain existing signal boosters? In addition, to the extent the Commission determines to grandfather certain signal boosters and adopts a signal booster registration requirement, it queries whether grandfathered devices should also be subject to such a requirement. The Commission notes that nothing in this item affects the ability of the Commission's Enforcement Bureau to investigate and take appropriate action to resolve instances of interference caused by signal boosters.

27. At the same time, the Commission seeks to provide an orderly transition to signal boosters that meet any new requirements developed in this proceeding, and minimize public confusion about whether particular devices are legal for use going forward. The Commission proposes a two-step approach to achieving these goals. First, the Commission proposes that, beginning 30 days after the effective date of final rules in this proceeding, all applications for equipment authorization must show that the device meets the new rules. Second, the Commission proposes that, beginning six months from the effective date of its rules, all signal boosters marketed or sold in the United States must meet its proposed safeguards. This approach encourages manufacturers to quickly transition to devices that meet the new rules, providing near-term equipment options for licensees and consumers. The Commission seeks comment on this proposal, including whether these timeframes are reasonable.

28. While the technical and operational safeguards the Commission proposes reduce the likelihood that interference will occur, in the event it does occur, there may be benefits to requiring signal booster operators to register their devices prior to use. For example, a national signal booster clearinghouse could hasten interference resolution by providing licensees with a quick resource for identifying nearby signal boosters and points of contact. Similarly, a clearinghouse could be useful to identify sources of interference for future network changes. Accordingly, the Commission seeks comment on whether signal booster operators should be required to register their devices with a national clearinghouse prior to operation. Further, the Commission seeks detailed comment on how a clearinghouse could be structured and what information should be required. Specifically, the Commission seeks comment on how a clearinghouse could be administered, by whom, and whether there are technical or programmatic features that could aid compliance with a registration requirement, e.g. , signal boosters could be equipped with features that would prevent operation until properly registered. Commenters should also address the costs and benefits of a registration requirement.

29. While recognizing the potential benefits of signal booster registration, the Commission is mindful of the burden a registration requirement might create for consumers. The Commission thus seeks comment on practical measures it might adopt to minimize or eliminate consumer burdens. For example, should certain types of devices be excluded from registration, e.g. , consumer versus professionally installed devices? Likewise, should any registration requirement be limited to fixed signal boosters because their precise locations are known and registration would allow licensees to quickly identify all fixed boosters in a particular area in the event interference is observed at a base station? Finally, the Commission queries whether, given the transient nature of the location of mobile signal boosters, registration would be effective in helping to identify and prevent interference from signal boosters.

30. Regarding Part 90 Private Land Mobile Radio (PLMR), non-consumer signal boosters operated by licensees, the Commission proposes revisions to the technical and operational requirements aimed at preventing interference. Specifically, the Commission proposes to:

• Retain the Class A (narrowband) and Class B (wideband) regulatory distinctions and permit private land mobile fixed (Class A and B) and mobile (Class A only) devices.

• Make clear that Class B devices must be limited to confined areas such as buildings, tunnels, parking structures, etc., but allow Class B signal boosters to be connected to external antennas that can communicate with base stations.

• Seek comment on whether to relax or otherwise improve the power and emission limits for Class A and Class B devices.

• Seek comment on whether to require part 90 PLMR, including 700 MHz public safety broadband (non-consumer) devices, to also meet the technical and coordination requirements for consumer signal boosters.

• Seek comment on the impact of the proposed rules on public safety vehicular external antennas and whether additional flexibility should be afforded to such uses.

31. Part 90 services include both subscriber-based services and PLMR, which warrant different approaches for signal booster operation. In order to promote regulatory parity, the Commission proposes to apply the same technical and operational requirements to all consumer signal boosters. Thus, the Commission proposes that part 90 consumer signal booster operators must comply with proposed § 95.1600 et seq. of its rules. In addition, however, given the unique characteristics of part 90 licensing, the Commission also proposes that part 90 consumer signal booster operators must comply with existing technical requirements for part 90 signal boosters and any new requirements we may adopt in the course of this proceeding. PLMR signal booster operators will continue to be required to comply with existing part 90 signal booster requirements and any new requirements the Commission may adopt in the course of this proceeding. The Commission seeks comment on its approach, including the costs and benefits, but query whether some or all of the technical and regulatory framework proposed above for consumer signal boosters should be applied to part 90 PLMR signal boosters.

32. The Commission proposes to maintain the Class A (narrowband) and Class B (wideband) distinctions for signal boosters in part 90. Class A signal boosters allow part 90 licensees with interleaved channels to meet their own needs without affecting neighboring licensees. In addition, the record demonstrates a demand and need for Class B signal boosters where proper installation and licensee coordination can avoid interference. The Commission believes that maintaining the Class A and Class B signal booster distinction affords licensees the flexibility to deploy signal boosters to fill in dead spots in coverage, extend coverage into buildings and obstructed areas, and provide extended range for public safety entities in rural areas with poor signal coverage. The Commission seeks comment on its proposal and takes this opportunity to seek comment on further distinctions, definition changes, or operational requirements for Class A and Class B signal boosters to ensure they are properly deployed and operated in the public interest.

33. The Commission believes that Class B signal booster use should be limited to confined areas such as buildings, tunnels, parking garages or other structures where the signal would be contained. Accordingly, the Commission proposes to remove the language “or in remote areas” from § 90.219(d) in order to clarify where Class B signal boosters may operate. Class B signal boosters amplify all signals within the device's passband, which makes it difficult to coordinate Class B signal booster use where different licensees have interleaved narrowband channels. Because of this additional level of complexity, Class B signal booster use in the part 90 bands should continue to be restricted to enclosed areas where the signals can be more easily controlled. The removal of the “or in remote areas” language should also eliminate any confusion regarding the allowable geographic locations for Class B signal boosters. Class B boosters can be deployed in both urban and rural areas so long as they are installed in a confined area; Class B signal booster use is not restricted to rural or remote areas. The Commission seeks comment on its proposal. In addition, the Commission seeks comment on how to structure a reasonable transition process for existing Class B signal boosters that do not meet its proposed rules. For example, should the Commission temporarily grandfather such devices and if so, under what terms and for what period of time?

34. The Commission also proposes to allow Class B signal booster operators to pair enclosed, Class B signal boosters with external antennas in order to provide a return path to the licensee's base or repeater station. Containing a Class B booster's signal completely within a structure eliminates the device's primary function—to facilitate signals into and out of obstructed areas. This type of deployment is used to facilitate public safety communications during in-building emergencies and many local jurisdictions require in-building signal boosters for this purpose. If properly coordinated and installed, such in-building signal booster systems can provide an important communications link without causing interference. The Commission seeks comment on its proposal. In addition, the Commission seeks comment on how to facilitate non-licensee use of part 90 PLMR Class B signal boosters for in-building emergency communications, including whether it should adopt our proposed consumer signal booster license-by-rule approach for such use. The Commission also seeks comment on whether additional safeguards are necessary to control interference from in-building signal booster systems. For example, how can the return link be coordinated and deployed in confined areas over frequency ranges that cover multiple licenses? Should the Commission restrict the return link to Class A signal boosters only?

35. The Commission's current policy affords part 90 licensees flexibility to implement a variety of devices, including mobile signal boosters, on their authorized channels as long as technical requirements are met and coordinated service boundaries are maintained. The Commission proposes to amend its rules to codify this policy and explicitly permit part 90 licensees to use mobile signal boosters on their assigned frequencies. The Commission recognizes, however, that interleaved part 90 channels present additional complications for controlling interference due to the number of different licensees that could be affected. For these reasons, the Commission does not believe wideband, mobile Class B signal boosters should be allowed on interleaved part 90 channels. The Commission thus proposes to only allow part 90 licensees to operate mobile Class A signal boosters on their assigned frequencies. The Commission recognizes that its proposal may prevent part 90 mobile consumer signal booster use because of the difficulty in designing a Class A mobile signal booster. We seek comment on our proposal including how our proposal will affect part 90 mobile consumer signal booster use. Should part 90 SMR licensees or their subscribers be permitted to operate mobile Class B signal boosters? Should 700 MHz public safety broadband licensees or their public safety users be permitted to operate mobile Class B boosters? What additional safeguards or requirements would be necessary to allow Class B signal boosters in a mobile environment without increased interference potential? Should the Commission permit mobile Class B signal boosters if the mobile device is tethered or placed in a docking station, such that only the desired mobile signal is amplified?

36. Mobile Amplifiers. In addition, Jack Daniel asks the Commission to clarify that a mobile amplifier is distinct from a mobile signal booster. Specifically, Jack Daniel proposes that the Commission define mobile amplifiers as “radio frequency amplifiers that physically connect[] to the mobile radio, portable or handset, typically [via] the antenna connector.” Historically, the Commission has treated these devices as part 90 transmitters for PLMR public safety and business/industrial pool licensees and allowed their use so long as they did not result in the device operating outside of part 90 technical rules. Given this opportunity to review the use of these part 90 amplifiers, the Commission seeks comment on whether any restrictions should be placed on these devices. For example, should commercial SMR service subscribers be permitted to use mobile amplifiers under a different set of technical requirements and what should they be? Most SMR subscriber radios have integrated antennas so connecting an external antenna may not be possible, but the Commission seeks comment on the viability of mobile amplifiers for SMR services. Does connecting the amplifier directly to the mobile device via a physical connection adequately address the interference concerns raised in this proceeding? What technical limits should be applied to mobile amplifiers, e.g. , should the Commission adopt separate power limits other than those that apply to part 90 mobile radios generally, should the Commission require automatic gain control or other features to ensure these devices do not cause interference? Should the Commission require that mobile amplifiers be tested with specific radio models to ensure that, when combined, the devices together meet applicable technical requirements in order to merit certification?

37. Emission Limits for Part 90 Signal Boosters. Commenters state that due to the use of narrowband digital modulation techniques since the signal booster rules were adopted, today's Class A signal boosters are not able to boost discrete digital narrowband channels without incurring group delay which could cause intermittent problems with the receiver's performance. The Commission believes there may be merit in the suggestion by commenters to relax the emission limits for Class A signal boosters to allow for consideration of the group delay issue. Accordingly, the Commission seeks comment as to what passband technical specifications (that could be verified through our equipment certification process) should be required for Class A boosters in lieu of the current requirement to meet the standard emission masks for transmitters. Would it be appropriate to use the 60 kHz passband (at −3 dB), 150 kHz (at −60 dB) specification proposed by Canam Technology, Inc.? Or should the maximum allowable passband be scaled in some way to the occupied bandwidth of the channel to be amplified? What sort of technical specification would be appropriate to verify the linearity and performance characteristics of a Class A signal booster to ensure that the out-of-band emissions of boosted signals are not degraded by intermodulation products or spurious emissions?

38. The Commission also seeks comment on the appropriate emission limits for Class B signal boosters. What emission mask sufficient for Class B signal boosters? Are Class B signal boosters programmable such that the roll off characteristics can be adjusted to apply to the upper and lower spectrum boundaries of the licensee's desired spectrum range? What other types of emission limitations should be considered for Class B signal boosters and how should compliance with these limits be measured in the equipment certification process?

39. Signal booster power limits. While the Commission recognizes that increased power limits for Class A signal boosters may facilitate more economical distribution systems, such increased power limits come with added interference concerns and complexity. A properly engineered and installed higher power Class A signal booster could be useful to fill in dead spots in outdoor coverage or to more economically cover large buildings. However, increasing the power limit would also significantly increase the device's interference potential and could present RF exposure issues if not carefully deployed. The Commission believes more information is needed on this issue before a decision can be made. The Commission thus seeks comment on whether part 90 signal boosters (both Class A and Class B) should be permitted to increase their power levels. What increased power levels are appropriate and what additional safeguards should be adopted? If the Commission permits Class A signal boosters to operate at higher levels, should such operation be limited to fixed applications? Should the Commission decrease the power limit for mobile Class A boosters to minimize interference potential? The Commission also seeks comment on whether the existing power limit remains appropriate for Class B signal boosters and whether it is expressed clearly in § 90.219(b) or whether the language “limited to 5 watts ERP for each authorized frequency that the booster is designed to amplify” has created confusion.

40. Equipment authorization for part 90 signal boosters. The Commission also takes this opportunity to augment the record on additional issues related to signal booster power levels. Specifically, a review of the equipment authorization database reveals that signal boosters have been certified with a wide range of signal booster power levels, many well in excess of 5 watts transmitter output power. This is because at the time of equipment authorization, the testing authority does not know how the device will be installed, how much signal will be lost in cables to outside antennas or the type of antenna that will be used. Nor does the testing authority know if the device will be installed as a signal booster subject to power limits in § 90.219 or as an amplifier that will be connected directly to a radio and not subject to the 5 watt ERP limit. Given these practical realities, is 5 watt ERP the proper power limit for signal boosters? Is ERP the best measure of power for signal boosters? Is the existing equipment authorization process sufficient to ensure signal boosters are approved in such a way that their operation is consistent with our rules? To ensure proper authorization of devices for their intended use, should the Commission require documentation or labeling on signal amplification devices to describe how the device is to be used under our rules? Should the Commission change the way it measures compliance for signal boosters to better differentiate between Class A and Class B signal boosters or between a signal booster and an amplifier designed to connect directly to a radio? While measuring field strength of a device would ensure compliance with our rules, it would make it difficult for the installer to address the wide range of deployment scenarios. The Commission thus seeks comment on other rules or techniques that can be used in the equipment authorization process to ensure signal boosters are properly operated.

41. PLMR Signal Booster Registration. PLMR signal booster operation, like consumer signal booster use, presents the same potential for interference to wireless operations. The Commission thus seeks comment whether, consistent with any registration process it may adopt for consumer signal booster operators, PLMR signal booster operators should also be required to register their signal boosters with a national, centralized clearinghouse prior to use. If interference from a PLMR booster occurs, the clearinghouse could provide other part 90 licensees with a ready resource for identifying and rectifying the source of the interference. Further, the Commission seeks comment on whether any registration requirement would apply to fixed, mobile, or both types of signal boosters.

42. Other design requirements. The Commission also seeks comment on whether part 90 PLMR signal boosters, including 700 MHz public safety broadband (non-consumer) devices, should be required to implement some or all of the safeguards it proposes for consumer signal boosters, such as automatic monitoring and shut down capabilities. Are these additional safeguards necessary for Class A signal boosters which are designed and deployed by the licensee to amplify only their authorized channel(s)?

43. 800 MHz Rebanding. As noted by several commenters, 800 MHz part 90 frequencies are subject to a rebanding process to resolve interference issues related to a mix of interleaved commercial, private and public safety channels. Once rebanding is complete, the separation of commercial SMR frequencies from part 90 PLMR channels will facilitate the deployment of signal boosters with less complication and fewer instances of interference. Jack Daniel points out, however, that after rebanding, thousands of consumers will likely continue to operate existing signal boosters unaware that the signals they are trying to amplify have been moved to another spectrum. Accordingly, Jack Daniel suggests that we establish a deadline for the removal of these devices from service. Jack Daniel acknowledges that implementation of such a deadline will require the participation of retailers and manufacturers of the products. The Commission seeks comment on the impact of rebanding on existing and future uses of part 90 signal boosters. Should the Commission establish a sunset date for the operation of existing Part 90 Class B signal boosters that operate in the 800 MHz band? How should the Commission effectuate such a sunset? Given that part 90 consumer operations would likely be limited to the rebanded SMR frequencies, should there be different technical requirements for signal boosters on those frequencies than for devices that would operate in the public safety and business/industrial pool? Recognizing the complexities involved in the rebanding process, should the Commission exclude part 90 consumer signal boosters from the general consumer signal booster license—by-rule framework until after the completion of the rebanding process?

44. Request for forbearance on conflicting regulations to local zoning laws. Jack Daniel requests that the Commission forbear from adopting any regulations that would hinder local zoning decisions that require the installation of signal boosters in buildings to facilitate communications by public safety first responders. Jack Daniel argues that many local governments have adopted or are considering code requirements that would require the installation of Class B signal boosters in buildings, and that the Commission should not usurp, via an assertion of exclusive jurisdiction, local zoning requirements by adopting conflicting rules.

45. The Commission's intent in this proceeding is to facilitate the development and deployment of well-designed signal boosters which will expand wireless coverage for consumers without harming wireless networks. The Commission does not seek to preempt local governments' authority to require the installation of signal boosters pursuant to fire or other building codes in the context of this proceeding. Any such installations, however, are required to comply with the Commission's existing rules applicable to signal boosters and will be required to comply with any rules which it may adopt in this proceeding.

46. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities small entities by the policies and rules proposed in this NPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM provided in section V.F.2. of the item. The Commission will send a copy of the Notice of Proposed Rule Making , including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register .

47. The regulatory framework for signal boosters proposed in this NPRM is one element in a set of initiatives designed to promote deployment of mobile voice and broadband services in the United States. Well-designed, properly operating, and properly installed signal boosters have the potential to improve consumers' wireless network coverage without harming commercial, private, and public safety wireless network performance. Malfunctioning, poorly designed, or improperly installed signal boosters, however, may harm consumers by blocking calls, including E-911 and other emergency calls, and decreasing network coverage and capacity. The regulatory framework proposed in this NPRM seeks to create appropriate incentives for carriers and manufacturers to collaboratively develop robust signal boosters that do not harm wireless networks. This, in turn, will empower consumers to improve their cell phone coverage as they deem necessary. The public interest is best served by ensuring that consumers have access to well-designed boosters that do not harm wireless networks.

48. The NPRM proposes a new regulatory framework authorizing the operation of “consumer signal boosters” provided the devices (1) comply with all applicable technical rules, and (2) comply with a set of parameters aimed at preventing and controlling interference and rapidly resolving interference problems should they occur. We also propose certain revisions to our service rules in part 90.

49. The proposed action is authorized under §§ 4(i), 4(j), 301, 303(r), and 307 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 301, 303(r), 307.

50. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

51. Nationwide, there are a total of approximately 29.6 million small businesses, according to the SBA. A “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2002, there were approximately 1.6 million small organizations. The term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2002 indicate that there were 87,525 local governmental jurisdictions in the United States. We estimate that, of this total, 84,377 entities were “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small.

52. Wireless Telecommunications Carriers (except Satellite). Since 2007, the Census Bureau has placed wireless firms within this new, broad, economic census category. Prior to that time, such firms were within the now-superseded categories of “Paging” and “Cellular and Other Wireless Telecommunications.” Under the present and prior categories, the SBA has deemed a wireless business to be small if it has 1,500 or fewer employees. Because Census Bureau data are not yet available for the new category, we will estimate small business prevalence using the prior categories and associated data. For the category of Paging, data for 2002 show that there were 807 firms that operated for the entire year. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. For the category of Cellular and Other Wireless Telecommunications, data for 2002 show that there were 1,397 firms that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, we estimate that the majority of wireless firms are small.

53. The Commission has determined that there are approximately 241,237 licensees in the Wireless Radio Services affected by this NPRM , as of October 1, 2010; the Commission does not know how many licensees in these bands are small entities, as the Commission does not collect that information for these types of entities. Thus, the Commission assumes, for purposes of this IRFA, that all prospective licensees are small entities as that term is defined by the SBA or by our proposed small business definitions for these bands.

54. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA has developed a small business size standard for firms in this category, which is: all such firms having 750 or fewer employees. According to Census Bureau data for 2002, there were a total of 1,041 establishments in this category that operated for the entire year. Of this total, 1,010 had employment under 500, and an additional 13 had employment of 500 to 999. Thus, under this size standard, the majority of firms can be considered small.

55. In the NPRM , the Commission seeks comment on rules and policies that will broaden the availability and use of signal boosters to enhance wireless coverage for consumers, particularly in rural and underserved areas, while ensuring that boosters do not adversely impact wireless networks. The NPRM proposes to authorize individuals to use fixed and mobile consumer signal boosters by rule under part 95.

56. Under the Commission's proposal, all consumer signal boosters must comply with technical and operational requirements aimed at preventing interference to wireless networks, including: complying with technical parameters ( e.g. , power and unwanted emission limits) for the applicable spectrum band as well as RF exposure requirements for the type of device; automatically self-monitoring operations and shutting down if not in compliance with our technical rules; and for mobile boosters, powering down, or shutting down, automatically when a device is not needed, such as when the device approaches the base station with which it is communicating. The NPRM also proposes to require manufacturers to market and label consumer signal boosters in a way that provides consumers with clear information specifying the legal use of the device.

57. In order to facilitate the near-term availability of new, compliant consumer signal boosters, the Commission proposes to require applications for equipment authorization to demonstrate compliance with the new rules within 30 days of their effective date. Further, the Commission proposes to require that devices marketed or sold in the United States comply with the new rules within 6 months of their effective date.

58. In addition, under the Commission's proposal, operators of consumer signal boosters would be required to immediately cease operations upon notification by a licensee or the Commission that the device causes harmful interference to wireless network operations. Further, operators of boosters operated at a fixed location, such as in a building, tunnel or garage, would be required to coordinate frequency selection and power levels with the applicable wireless carrier(s) prior to operation.

59. With respect to part 90 PLMR, non-consumer, signal boosters operated by licensees, the NPRM proposes revisions to the technical and operational requirements aimed at preventing interference. Specifically, the Commission proposes to retain the Class A (narrowband) and Class B (wideband) regulatory distinctions and permit private land mobile fixed (Class A and B) and mobile (Class A only) devices. In addition, the NPRM proposes to make clear that Class B devices must be limited to confined areas such as buildings, tunnels, parking structures, etc., but permits use of external antennas to communicate with base stations.

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

61. The NPRM specifically invites comments on a range of potential safeguards for signal boosters and invites interested parties to suggest alternative proposals. At this time, the Commission has not excluded any alternative proposal concerning potential signal booster safeguards from its consideration, but it would do so in this proceeding if the record indicates that a particular proposal would have a significant and unjustifiable adverse economic impact on small entities.

62. In the NPRM , the Commission also discusses possible registration requirements with a national signal booster clearinghouse to facilitate rapid resolution of interference (in the event harmful interference occurs notwithstanding the Commission's proposed safeguards) and ease coordination burdens. However, the Commission will not consider any alternative that would have a significant and unjustifiable adverse economic impact on small entities.

63. The Commission solicits alternative proposals, especially those that would not incur significant and unjustifiable adverse impacts on small entities.

None.

65. Pursuant to sections 4(i), 4(j), 301, 303(r), and 307 of the Communications Act of 1934, 47 U.S.C. 154(i), 154(j), 301, 303(r), 307 that this NPRM is hereby adopted.

66. Pursuant to sections 4(i), 4(j), 301, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 301 , 303(r) and § 1.2 of the Commission's rules, 47 CFR 1.2, the Petition for Declaratory Ruling filed on September 25, 2008, by Jack Daniel, DBA Jack Daniel Company is denied.

67. Pursuant to sections 4(i), 4(j), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303(r), and § 1.407 of the Commission's rules, 47 CFR 1.407, that the Petitions for Rulemaking filed by Bird Technologies Group on August 18, 2005, by The DAS Forum (A Membership Section of PCIA—The Wireless Infrastructure Association) on October 23, 2009, and by Wilson Electronics, Inc. on November 3, 2009, are granted to the extent provided herein, and otherwise are denied.

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

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 1, 2, 22, 24, 27, 90 and 95 of Title 47 of the Code of Federal Regulations as follows:

In a forthcoming notice of proposed rulemaking (NPRM), NHTSA intends to propose Corporate Average Fuel Economy (CAFE) standards for model years (MYs) 2017-2025 passenger cars and light trucks pursuant to the Energy Policy and Conservation Act (EPCA), as amended by the Energy Independence and Security Act of 2007 (EISA). 1 In connection with this action, NHTSA will prepare an Environmental Impact Statement (EIS) to analyze the potential environmental impacts of the proposed CAFE standards and reasonable alternative standards pursuant to the National Environmental Policy Act (NEPA) and implementing regulations issued by the Council on Environmental Quality (CEQ) and NHTSA. 2 NEPA instructs Federal agencies to consider the potential environmental impacts of their proposed actions and those of possible alternative actions. To inform decisionmakers and the public, the EIS will compare the potential environmental impacts of the agency's Preferred Alternative and a spectrum of alternatives, including a “no action” alternative. As required by NEPA, the EIS will consider direct, indirect, and cumulative impacts of the proposed action and alternatives and will discuss impacts in proportion to their significance.

Background. EPCA, as amended by EISA, sets forth extensive requirements concerning the establishment of CAFE standards. It requires the Secretary of Transportation  3 to establish average fuel economy standards at least 18 months before the beginning of each model year and to set them at “the maximum feasible average fuel economy level that the Secretary decides the manufacturers can achieve in that model year.”  4 When setting “maximum feasible” fuel economy standards, the Secretary is required to “consider technological feasibility, economic practicability, the effect of other motor vehicle standards of the Government on fuel economy, and the need of the United States to conserve energy.”  5 NHTSA construes the statutory factors as including environmental and safety considerations. 6

As amended by EISA in December 2007, EPCA further directs the Secretary, after consultation with the Secretary of Energy and the Administrator of the Environmental Protection Agency (EPA), to establish average fuel economy standards separately for passenger cars and for light trucks manufactured in each model year beginning with MY 2011. In doing so, the Secretary of Transportation is required to comply with special provisions relating to the standards for model years 2011-2030. The Secretary is required to “prescribe annual fuel economy standard increases that increase the applicable average fuel economy standard ratably beginning with model year 2011 and ending with model year 2020,”  7 and those standards must “achieve a combined fuel economy average for model year 2020 of at least 35 miles per gallon for the total fleet of passenger and non-passenger automobiles manufactured for sale in the United States for that model year.”  8 For MYs 2021-2030, the passenger car and light truck standards must simply be the “maximum feasible” average fuel economy standard for each of those fleets for each model year. 9 Additionally, the standards for passenger cars and light trucks must be “based on 1 or more vehicle attributes related to fuel economy” and expressed “in the form of a mathematical function,” and may be established for not more than five model years. 10 EISA also mandates a minimum standard for domestically manufactured passenger cars. 11

On May 19, 2009, President Obama announced a new National Fuel Efficiency Policy for establishing consistent, harmonized, and streamlined requirements to improve fuel economy and reduce greenhouse gas (GHG) emissions for all new passenger cars and light trucks sold in the United States. 12 Pursuant to that announcement, NHTSA and EPA finalized the first-ever joint rulemaking to establish fuel economy standards and GHG standards for light duty vehicles on April 1, 2010. NHTSA established CAFE standards under EPCA/EISA and EPA established GHG emissions standards under the Clean Air Act. 13 The CAFE standards covered MY 2012-2016 passenger cars and light trucks and were estimated to require a combined average fleet-wide fuel economy of 34.1 mpg by 2016. 14

Following the first phase of the National Program, in a Presidential Memorandum issued May 21, 2010, President Obama requested that EPA and NHTSA build on the first joint rulemaking to continue a coordinated National Program to improve fuel efficiency and reduce greenhouse gas emissions of light-duty vehicles for MYs 2017-2025. 15 The Memorandum stated that the National Program should seek to produce joint Federal standards that are harmonized with applicable State standards, achieve substantial annual progress in reducing transportation sector GHG emissions and fossil fuel consumption, and strengthen the industry and enhance job creation in the United States. As part of implementing this program, the President asked that the Administrators of EPA and NHTSA work with the State of California to develop a technical assessment to inform the rulemaking process. 16 The President also requested that the two agencies issue a Notice of Intent to Issue a Proposed Rule that announces plans for setting stringent fuel economy and greenhouse gas emissions standards for light-duty vehicles for MY 2017 and beyond. On October 1, 2010, NHTSA and EPA jointly issued that notice concurrently with the Interim Joint Technical Assessment Report. 17

In response to the President's call to provide greater certainty and incentives for long-term innovation by manufacturers, NHTSA is planning to set CAFE standards for MY 2017-2025 passenger cars and light-duty trucks, and NHTSA intends to do this in a joint rulemaking with EPA, in which EPA will set GHG standards for the same model years and vehicles. As noted above, however, NHTSA's statutory authority allows the agency to take final action prescribing CAFE standards in increments of no more than five model years. 18 In order to address this statutory limitation, NHTSA is considering proposing standards for the MY 2017-2025 timeframe, with the express condition that the standards for MYs 2022-2025 would be subject to a mid-term technology assessment and review. NHTSA would adopt standards for MYs 2017-2025, but standards for MYs 2022-2025 would not become effective at the established level unless and until NHTSA affirmed in a later rulemaking that they were, based on information available at the time of the later rulemaking, the maximum feasible standards for those model years. This condition would appear in the regulations. Because these two NHTSA actions would be proposed together to increase the efficiency of the light-duty fleet, and because they would be part of a joint NHTSA/EPA rulemaking for a coordinated National Program covering MYs 2017-2025, NHTSA plans to address the potential environmental impacts of the proposed alternatives for the full MY 2017-2025 period in a single EIS, notwithstanding the provision for a mid-term technology assessment and review. 19 NHTSA specifically seeks comment on the agency's proposed approach of analyzing the action for the MY 2017-2025 period in a single EIS.

As required by statute, NHTSA's upcoming NPRM will propose separate attribute-based standards for MY 2017-2025 passenger cars and for MY 2017-2025 light trucks. 20 As in the last CAFE rulemaking, NHTSA plans to propose vehicle footprint as the attribute. Each individual vehicle model would have a specific fuel economy target based on the fuel economy capability of those motor vehicles having the same footprint as that vehicle model. 21 Fuel economy targets would reflect, in part, NHTSA's analysis of the technological and economic capabilities of the industry within the rulemaking timeframe. A manufacturer's CAFE standard, in turn, would be based on the target levels set for its particular mix of vehicles in that model year. Compliance would be determined by comparing a manufacturer's harmonically averaged fleet fuel economy levels in a model year with a required fuel economy level calculated using the manufacturer's actual production levels and the targets for each vehicle it produces. 22

Under NEPA, the purpose of and need for an agency's action inform the range of reasonable alternatives to be considered in its NEPA analysis. 23 In developing alternatives for analysis in the EIS, NHTSA must consider EPCA's requirements for setting CAFE standards. As discussed above, EPCA requires the agency to determine what level of CAFE stringency would be the “maximum feasible” for each model year, a determination the agency makes based on the consideration of four statutory factors: technological feasibility, economic practicability, the effect of other standards of the Government on fuel economy, and the need of the United States to conserve energy. 24

The alternatives that NHTSA plans to consider are:

• A “no action” alternative, which assumes, for purposes of NEPA analysis, that NHTSA would not issue a rule regarding CAFE standards. 25 NEPA requires agencies to consider a “no action” alternative in their NEPA analyses and to compare the effects of not taking action with the effects of the reasonable action alternatives in order to demonstrate the different environmental effects of the action alternatives. The recent EISA amendments to EPCA direct NHTSA to set new CAFE standards and do not permit the agency to take no action on fuel economy. 26 This “No Action Alternative” is also referred to as the “baseline.”

• Alternatives calculated at the upper point and at the lower point of the range between 2% and 7%, representing annual fuel economy stringency increases from the MY 2016 standards, from 2017 through 2025. The calculations and the related evaluation of impacts would be performed separately for passenger cars and light trucks at each of these points so as to demonstrate their effects independently, since car and truck standards could increase at different rates from one another and at different rates in different years. These alternatives would bracket the range of actions the agency may select.

• The Preferred Alternative, reflecting annual stringency increases for both passenger cars and light trucks that fall at levels between the upper and lower bounds identified above. NHTSA has not yet identified its Preferred Alternative.

Thus, NHTSA plans to analyze the impacts of eight different standards for the DEIS: Two points bracketing the possible action alternatives for cars (2% per year and 7% per year) and two points bracketing the possible alternatives for trucks (2% per year and 7% per year), as well as a No Action Alternative and Preferred Alternative for cars and a No Action Alternative and Preferred Alternative for trucks.

NHTSA has tentatively concluded that this range of annual percentage increases would satisfy EPCA's requirement that the standards be “maximum feasible” for each model year, based on the different ways NHTSA could weigh EPCA's four statutory factors. For example, the most stringent average annual increase NHTSA is considering for both passenger cars and light trucks (7%) weighs energy conservation and climate change considerations more heavily and technological feasibility and economic practicability less heavily. In contrast, the least stringent annual increase NHTSA is considering (2%) places more weight on technological feasibility and economic practicability.

This range reflects differences in the degree of technology adoption across the fleet, in costs to manufacturers and consumers, and in conservation of oil and related reductions in greenhouse gases. For example, the most stringent average annual increase NHTSA is evaluating would require greater adoption of technology across the fleet, including more advanced technology, than the least stringent annual increase NHTSA is evaluating. As a result, the most stringent annual increase would impose greater costs and achieve greater energy conservation and related reductions in greenhouse gases.

This range of stringencies, along with the analysis for the Preferred Alternative, would provide a broad range of information for NHTSA to use in evaluating and weighing the statutory factors of technological feasibility, economic practicability, and energy conservation. It would allow for consideration of differences and uncertainties in the way in which key economic inputs (e.g., the price of fuel and the social cost of carbon) and technological inputs are estimated or valued.

The agency may select one of the above-identified levels of average increase for passenger cars and one for light trucks as its Preferred Alternative or it may select a level of stringency that falls between those extremes. The percentage increases in stringency are “average” increases and may either be constant throughout the period or may vary from year to year, but the average yearly increase over that period will equal the percentage increase selected.

Within the range identified above, NHTSA may consider setting more stringent standards for the earlier years of the rule than for the later years, or, alternatively, setting less stringent standards for the earlier years of the rule than for the later years, depending on our assessment of what would be “maximum feasible” for those time periods for each fleet. In addition, NHTSA may consider setting standards for passenger cars and light trucks that increase at different rates between the high and low levels the agency is considering, depending on the agency's determination of the maximum feasible level for each fleet over time.

Planned Analysis: While the main focus of NHTSA's prior CAFE EIS for light duty vehicles ( i.e., the EIS for MYs 2012-2016) was the quantification of impacts to energy, air quality, and climate, and qualitative analysis of cumulative impacts resulting from climate change, it also addressed other potentially affected resources. NHTSA conducted a qualitative review of impacts of the alternatives on other potentially affected resources, such as water resources, biological resources, land use, hazardous materials, safety, noise, historic and cultural resources, and environmental justice.

Similar to past EIS practice, NHTSA plans to analyze environmental impacts related to fuel and energy use, emissions including GHGs and their effects on temperature and climate change, air quality, natural resources, and the human environment. NHTSA also will consider the cumulative impacts of the proposed standards for MY 2017-2025 automobiles together with any past, present, and reasonably foreseeable future actions.

NHTSA anticipates uncertainty in estimating the potential environmental impacts related to climate change. To account for this uncertainty, NHTSA plans to evaluate a range of potential global temperature changes that may result from changes in fuel and energy consumption and GHG emissions attributable to new CAFE standards. It is difficult to quantify how the specific impacts due to the potential temperature changes attributable to new CAFE standards may affect many aspects of the environment. NHTSA will endeavor to gather the key relevant and credible information.

NHTSA intends to rely upon the Intergovernmental Panel on Climate Change (IPCC) 2007 Fourth Assessment Report and subsequent updates, Reports of the U.S. Climate Change Science Program (CCSP) and the current U.S. Global Change Research Program (U.S. GCRP), National Academies and National Research Council assessments of climate impacts, and the EPA Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act and the accompanying Technical Support Document (referred to collectively hereinafter as the EPA Endangerment Finding), as sources for recent “summar[ies] of existing credible scientific evidence which is relevant to evaluating the reasonably foreseeable significant adverse impacts on the human environment.”  27 NHTSA believes that the IPCC Fourth Assessment Report, the CCSP and U.S. GCRP Reports, the National Academies and National Research Council assessments, and the EPA Endangerment Finding are the most recent, most comprehensive summaries available, but recognizes that subsequent research may provide additional relevant and credible evidence not accounted for in these Reports. NHTSA may consider such subsequent information as well, to the extent that it provides relevant and credible evidence.

NHTSA expects to rely on previously published EISs, incorporating material by reference “when the effect will be to cut down on bulk without impeding agency and public review of the action.”  28 Therefore, the NHTSA NEPA analysis and documentation will incorporate by reference relevant materials, including portions of the agency's prior NEPA documents, where appropriate.

Scoping and Public Participation: NHTSA's NEPA analysis for the MY 2017-2025 CAFE standards will consider the direct, indirect and cumulative environmental impacts of proposed standards and those of reasonable alternatives. The scoping process initiated by this notice seeks public comment on the range of alternatives under consideration, on the impacts to be considered, and on the most important issues for in-depth analysis in the EIS. 29

NHTSA invites the public to participate in the scoping process 30 by submitting written comments concerning the appropriate scope of the NEPA analysis for the proposed CAFE standards to the docket number identified in the heading of this notice, using any of the methods described in the ADDRESSES section of this notice. NHTSA does not plan to hold a public scoping meeting, because written comments will be effective in identifying and narrowing the issues for analysis.

All comments to the relevant scoping process are welcome. NHTSA is especially interested in comments concerning the evaluation of climate change impacts. In particular, NHTSA requests:

• Peer-reviewed scientific studies that have been issued since the EPA Endangerment Finding and that address or may inform: (a) The impacts of CO 2 and other GHG emissions that may be associated with any of the alternatives under consideration; (b) the impacts on climate change that may be associated with these emission changes; or (c) the time periods over which such impacts may occur. NHTSA is particularly interested in peer reviewed studies analyzing the potential impacts of climate change within the United States or in particular geographic areas of the United States.

• Comments on how NHTSA should estimate the potential changes in temperature that may result from the changes in CO 2 emissions projected from setting MY 2017-2025 CAFE standards, and comments on how NHTSA should estimate the potential impacts of temperature changes on the environment.

• Comments on how NHTSA should discuss or estimate any localized or regional impacts of potential increased penetration of alternative fuel vehicles, including upstream emissions and impacts regarding waste and disposal of advanced batteries. 31

• Comments on what timeframe NHTSA should use to evaluate the environmental impacts that may result from setting MY 2017-2025 CAFE standards.

NHTSA is also interested in comments on how the agency is planning to structure the proposed alternatives. Subject to the statutory constraints of EPCA/EISA, a variety of potential alternatives could be considered within the purpose and need for the proposed rulemaking, each falling along a theoretically infinite continuum of potential standards. As described above, NHTSA plans to address this issue by identifying alternatives at the upper and lower bounds of a range within which we believe the statutory requirement for “maximum feasible” would be satisfied, as well as identifying and analyzing the impacts of a preferred alternative. In this way, NHTSA expects to bracket the potential environmental impacts of the standards it may select. 32

NHTSA seeks comments on what criteria should be used to choose the Preferred Alternative, given the agency's statutory requirement of setting “maximum feasible” fuel economy standards that increase ratably. 33 When suggesting an approach, please explain how it would satisfy EPCA's factors (technological feasibility, economic practicability, the effect of other motor vehicle standards of the Government on fuel economy, and the need of the United States to conserve energy). 34

Two important purposes of scoping are identifying the significant issues that merit in-depth analysis in the EIS and identifying and eliminating from detailed analysis the issues that are not significant and therefore require only a brief discussion in the EIS. 35 In light of these purposes, written comments should include an Internet citation (with a date last visited) to each study or report you cite in your comments if one is available. If a document you cite is not available to the public online, you should attach a copy to your comments. Your comments should indicate how each document you cite or attach to your comments is relevant to the NEPA analysis and indicate the specific pages and passages in the attachment that are most informative.

The more specific your comments are, and the more support you can provide by directing the agency to peer-reviewed scientific studies and reports as requested above, the more useful your comments will be to the agency. For example, if you identify an additional area of impact or environmental concern you believe NHTSA should analyze, or an analytical tool or model you believe NHTSA should use to evaluate these environmental impacts, you should clearly describe it and support your comments with a reference to a specific peer-reviewed scientific study, report, tool or model. Specific, well-supported comments will help the agency prepare an EIS that is focused and relevant and will serve NEPA's overarching aims of making high quality information available to decisionmakers and the public by “concentrat[ing] on the issues that are truly significant to the action in question, rather than amassing needless detail.”  36 By contrast, mere assertions that the agency should evaluate broad lists or categories of concerns, without support, will not assist the scoping process for the proposed standards.

Please be sure to reference the docket number identified in the heading of this notice in your comments. NHTSA intends to provide notice to interested parties by e-mail. Thus, please also provide an e-mail address (or a mailing address if you decline e-mail communications). 37 These steps will help NHTSA manage a large volume of material during the NEPA process. All comments and materials received, including the names and addresses of the commenters who submit them, will become part of the administrative record and will be posted on the Web at http://www.regulations.gov.

Based on comments received during scoping, NHTSA expects to prepare a draft EIS for public comment by September 2011 and a final EIS by June 2012. 38 The agency expects to issue a final rule in July 2012.

Separate Federal Register notices will announce the availability of the draft EIS, which will be available for public comment, and the final EIS, which will be available for public inspection. NHTSA also plans to continue to post information about the NEPA process and this CAFE rulemaking on its Web site ( http://www.nhtsa.gov ).