This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAP and the corresponding effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.

The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the Federal Register expensive and impractical. Furthermore, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their depiction on charts printed by publishers of aeronautical materials. The advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA forms is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs and the effective dates of the, associated Takeoff Minimums and ODPs. This amendment also identifies the airport and its location, the procedure, and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule ” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The market for previously used automobile parts encompasses a broad range of parts and assemblies of parts previously used on vehicles (collectively, industry products or products). Industry products range from mechanical or body parts removed from a salvaged vehicle and put on a working vehicle without modification of any kind to parts that, after removal from the original vehicle, undergo substantial disassembly, rebuilding, inspection, and, in some instances, upgrading from their original condition, before being returned to service. The availability of these parts means vehicles stay in service longer and for a lower price than if consumers had to rely only on new parts from the manufacturer. One commenter asserted that without rebuilt or remanufactured parts, 25% of the vehicles currently on the road, and a higher percentage of off-road vehicles (e.g., construction and farm equipment) would be out of service. 1 Savings to consumers from using rebuilt or remanufactured parts range from 20-50%. 2

The Guides for the Rebuilt, Reconditioned and Other Used Automobile Parts Industry (Used Auto Parts Guides or Guides) provide advice to industry members on how they can avoid engaging in unfair or deceptive practices that violate Section 5 of the Federal Trade Commission Act, 15 U.S.C. 45. 3 The Guides deem certain practices to be unfair or deceptive, including the following:

1. Misrepresenting industry products as new or misrepresenting the amount of use of an industry product;

2. Misrepresenting the identity of anyone who worked on an industry product after it was removed from the original vehicle;

3. Misrepresenting the condition of an industry product or the amount of work done to it after its removal from the original vehicle.

As part of its continuing program to review its rules and guides, the Commission published a notice in the Federal Register on May 21, 2012, seeking written comments about the Used Auto Parts Guides, including their costs, benefits, and scope. 4 Twelve comments were received. 5 Five of the commenters expressed support for the Guides because of the benefits they provide for consumers and/or the marketplace and suggested no specific changes. 6 Three commenters recommended changes but also expressed support for the Guides. 7 Two commenters expressly made their support for the Guides contingent on the Commission accepting their suggested changes. 8 The two remaining commenters were not clear about their support for the Guides. 9

The Commission has determined to retain and revise the Guides. The comments show a continuing need for the Guides for the benefits they provide, including both protections for consumers and clarity for industry members. 10 Further, the Guides do not appear to impose substantial costs; none of the commenters stated that compliance with the Guides is burdensome. On balance, it appears that the benefits of the Guides outweigh their costs. Therefore, the record supports retaining them. In addition, as set forth below, the record supports certain changes to the Guides. The Commission has considered numerous other changes proposed by commenters and concluded not to adopt them.

The remainder of this Section II summarizes the record and explains the Commission's decisions as to specific items.

Several commenters suggested that the Commission modify the Guides to define additional terms used to describe industry products. These commenters believed such definitions would further inform consumers as to the amount of work done on an industry product after its removal from the original vehicle. 11 Industry products come in a broad range of conditions. The current Guides define the terms “rebuilt,” “remanufactured,” and “factory rebuilt,”  12 but they also mention, “used,” “secondhand,” “repaired,” “reconditioned,” and “relined” as examples of “appropriate descriptive terms” for industry products while leaving these terms undefined. 13 Commenters suggested a rough hierarchy of industry products, with “rebuilt” and “remanufactured” describing products receiving the most reworking and “used” or “salvaged” the least. 14

The Commission recognizes that it is possible consumers might benefit from additional specificity in the meaning of terms used to refer to industry products, but based on the record, with one exception, it has determined not to change the way industry products are described. With the exception of MEMA, the commenters on this topic failed to identify what terms the Guides should define or to propose definitions for those terms. Moreover, overall, the commenters supported the Guides and believed they have been effective. In light of this support and the lack of comments suggesting specific definitions, the Commission believes the record supports only the one change described below, concerning the term “remanufactured.”

MEMA argued specifically that the Guides should be amended so as to differentiate “remanufactured” from “rebuilt”; the Guides now treat these terms as equivalent. MEMA asserted, without providing supporting data or other evidence, that including remanufactured products in the same category as products sold with little or no reworking confuses consumers. MEMA also argued that its definition of remanufactured comports with how international trade agreements use the word. 15

MEMA proposed applying the term “remanufactured” only to industry products “produced using a standardized industrial process by which previously sold, worn or non-functional products are returned to same-as-new, or better, condition and performance.”  16 The standardized process, according to MEMA, is done in a factory and requires “technical specifications, including engineering, quality, and testing standards to yield fully warranted products.”  17 The process incorporates upgrades and corrects defects identified since the product first went on a vehicle. 18 MEMA urged the Commission “not to finalize the Guides in the current format, which does not properly recognize the significant advancements made by the U.S. remanufacturing industry over the past 30 years.”  19

The Commission declines to adopt MEMA's proposed definition of “remanufactured,” but, as discussed below, is revising the Guides to provide that the term “remanufactured,” like the term “factory rebuilt,” should be used only if the product was rebuilt “in a factory generally engaged in the rebuilding” of industry products. The Commission declines to adopt MEMA's proposed definition of “remanufactured” because the Commission does not have a basis to believe that MEMA's specific proposal will necessarily improve consumers' understanding of the difference between remanufactured products and other industry products. 20 In addition, the record does not identify any costs or confusion resulting from definitions in the Guides not matching those in international trade agreements.

MEMA's comments, however, provided evidence that “remanufacture” involves a process performed in a factory setting in a way that “rebuilt” does not. 21 The Commission has, therefore, decided to change § 20.3 to delete “remanufacture” from subsection (a) and add it to subsection (b). Whereas the Guides currently impose the same requirements on use of the terms “remanufactured” and “rebuilt,” the revised Guides provide the same requirements for the use of the terms “remanufactured” and “factory rebuilt.”

The May 2012 Federal Register Notice posed two questions about the disclosures required by the Guides: (1) should the Guides define “clear and conspicuous,” and (2) should the Guides specify when an installer of an industry product must disclose the use of that product to the consumer.

The Guides provide that “clear and conspicuous” disclosure that the product is used or contains used parts should be made when industry products are advertised or sold. These disclosures should appear in advertisements and promotional literature, on invoices, on packaging, and on the product itself. The current Guides suggest some descriptive terms to describe a product's condition—“used,” “secondhand,” “repaired,” “remanufactured,” “reconditioned,” “rebuilt,” and “relined”  22 —and allow codes to describe the products on invoices between different sellers. 23 Beyond these statements, however, the Guides do not prescribe specific methods for providing “clear and conspicuous” disclosures.

One commenter responded on this point. The APRA suggested that the Guides return to the language from before their 2002 revisions. Before these revisions, the Guides not only gave examples of terms to describe industry products, 24 but also defined “conspicuous.” Conspicuous disclosures were:

The Commission has decided not to change the current language regarding clear and conspicuous. The current Guides afford businesses flexibility in complying with the Guide's disclosure provisions and avoid a definition that is too narrow to apply to the myriad situations in which a disclosure may be needed. Moreover, the record does not indicate that sellers of industry products are having difficulty understanding or applying the current language. 27 Therefore, the Commission has decided not to change this section of the Guides.

Three commenters addressed the timing of disclosures to consumers, responding to the Federal Register Notice's request for input on whether the Guides should be changed to specify when an installer of an industry product must disclose the use of the product to a consumer. 28

The AAA suggested that verbal disclosure of an industry product be required when an installer seeks verbal authorization to proceed with a repair. The AAA also suggested that signs in the installer's facility should state that industry products may be used and that use of an industry product be disclosed on the consumer's invoice. The AAA further recommended that engines, transmissions, and other assemblies represented to have “low mileage” be accompanied by documentation of their conditions, such as pictures and Carfax reports. 29

The APRA asserted that the Guides complement laws in some states that require mechanics to disclose the use of industry products and that without the Guides such disclosures would be “more difficult and less effective.”  30 The APRA, however, also asserts that disclosures by installers should be regulated by state or local agencies. 31

Mr. Stilnovic suggested that car dealers provide consumers interested in used cars with a pamphlet alerting the consumers to the Guides and disclosing any industry products in the vehicle the consumer is considering.

None of these commenters provided data or other evidence to support their positions or indicate the extent of the problems they address, and the Commission has determined not to modify the Guides without such information. The AAA's suggestions on disclosure have intuitive appeal. The existing record, however, does not contain specific evidence of a problem with the timing of disclosures, nor does the Commission possess other evidence of such a problem. The Commission will monitor developments in this area and revise the Guides if evidence of problems with the timing of disclosures about industry products arises.

Mr. Stilnovic's suggestion of a pamphlet disclosure given in connection with used cars would impose burdens on dealers, with uncertain benefits for consumers. The disclosure would inform consumers of the Guides, but such generic information may well be of little value at the time, when the consumer's focus is on the purchase of the vehicle, not on a specific part. In addition, requiring a dealer to disclose any industry products in a vehicle could require the dealer to disclose information it does not have, such as in situations when the dealer buys the vehicle at auction. For these reasons, the Commission has chosen not to adopt this suggestion.

The May 2012 Federal Register Notice requested comments on whether tires should be covered by the Guides and whether the existing list of vehicles to which the Guides applied was sufficient or whether off-road vehicles such as all-terrain vehicles, construction vehicles, and dune buggies should be covered. 32 Several commenters discussed one or more of these topics, although with little analysis or data to support their positions. The Commission has decided to add tires to the Guides, but not to change the description of vehicles whose parts are covered by the Guides.

The current Used Auto Parts Guides expressly state that they do not apply to tires because tires are covered by a separate guide. 33 When the Used Auto Parts Guides were last reviewed, tires were covered by the Tire Advertising and Labeling Guides, which have since been rescinded. 34 The rescission announcement stated that changes in technology and tire marketing had made most of those guides obsolete and that intervening regulations by the National Highway Traffic Safety Administration already required disclosure of information consumers were likely to want when purchasing tires; the few remaining provisions of the tire guides did not warrant keeping them as a separate regulation. The rescission announcement noted that used and retreaded tires are seldom found in the consumer market but account for as much as 60% of the large truck market. The rescission announcement also noted that the failure to disclose that a tire was used or retreaded would likely constitute deception in violation of Section 5 of the FTC Act. 35

The Commission believes the Used Auto Parts Guides should now apply to tires. The risk of overlap or contradiction between the Guides and the tire guides no longer exists, and continuing to exclude tires from the Used Auto Parts Guides could be interpreted to mean that sellers need not disclose when tires are used or retreaded. The Commission notes that two of the three commenters on this topic support having the Guides apply to tires. 36 Therefore, § 20.0 of the Guides has been changed to remove the last sentence, which contains the exclusion, and to add tires to the example list of industry products.

The current Used Auto Parts Guides apply to parts “designed for use in automobiles, trucks, motorcycles, tractors, or similar self-propelled vehicles.”  37 The Commission requested comments on whether this list adequately described the vehicles to which the Guides should apply. The APRA, the only commenter on this issue, advocated expressly including off-road vehicles in the Guides because the benefits of industry products are the same for owners of these vehicles as for owners of on-road vehicles and compliance by businesses would be easy. The APRA, however, did not identify existing buyer deception or seller confusion from the existing language.

The Commission has decided not to change the language in the Guides that describes the vehicles covered. From the single comment, the Commission cannot determine that a need for change exists or that any change would not have adverse effects that a more thorough record would reveal. Although it declines to amend the Guides in this regard, the Commission notes it has the authority to pursue sellers who deceive buyers of any product about that product's previous use or reworking. Section 5's broad prohibition against unfair and deceptive acts or practices continues to apply in these situations, regardless of whether the products are covered by the Guides.

The May 21, 2012, Federal Register Notice asked if there is a need to educate consumers or businesses about the Guides. Several commenters responded that there is such a need, and the AAA offered to collaborate with the Commission on educational efforts. 38 Similarly, the APRA encouraged the FTC to promote the Guides on its Web site, through private organizations, and consumer brochures. 39

The ARA urged the FTC to educate consumers about the potential biases of manufacturers promoting original parts. 40 MEMA requested that the Commission educate the public on the quality and benefits of remanufactured products and to support MEMA's “Manufactured Again” certification program. 41 Mr. Stilnovic urged education regarding the potential presence of industry products in used cars. He also suggested that the Commission provide data showing how long industry products lasted versus new products, so consumers could make more informed decisions.

No change to the Guides is needed for the Commission to augment its educational efforts on this issue, and accordingly, no change has been made on this topic. The Commission will continue to look for opportunities to educate consumers about the benefits and drawbacks of industry products and to educate businesses about their obligations when selling such products.

Commenters mentioned other topics, not discussed above.

The AAA suggests that ten additional items be added to the forty-seven examples in the current Guides of parts that might be sold as industry products. 42 The Commission believes the examples should be up-to-date, but stresses that the Guides provide examples of industry products, and not an exhaustive list. Accordingly, the revised Guides include some of the parts suggested by the AAA, but other parts were removed to yield a shorter list of examples overall. No substantive change is intended by removing an item from the list. The revised list includes tires. 43

The APRA's comments included two suggestions not covered above.

a. The APRA believes that most industry products of American origin comply with the Guides but that products from foreign sources do not. The APRA suggested that the Commission (1) state explicitly in the Guides that they apply to foreign products; (2) work to increase awareness of the Guides among importers of industry products; (3) educate Immigration and Customs Enforcement about the Guides; and (4) monitor compliance with the Guides by importers. The APRA provided no indication of the scope of the alleged imported-part problem or explanation of why any Guide noncompliance that is occurring cannot be addressed through enforcement actions under Section 5 of the FTC Act. 44

The Commission has determined that it is not necessary to amend the Guides as the APRA suggests. The Guides currently apply to the “manufacture, sale, distribution, marketing, and advertising” of industry products, and the Guides currently prohibit providing the means or instrumentality to others to violate the law. The Commission has jurisdiction over entities conducting business in the United States regardless of the country of origin of the original new product or of the reconstructed or otherwise used product. Therefore, as the Commission has explained previously, the Guides currently cover foreign rebuilders and importers of used auto parts who distribute or sell used auto parts in the United States. 45 Accordingly, a change in the Guides is not necessary for them to apply to importers. In addition, a change in the Guides is unnecessary to expand education efforts for businesses and other government agencies or to investigate possible violations of the FTC Act through non-compliance with the Guides.

b. The APRA also suggested that the Guides require original trademarks to be left on a rebuilt or remanufactured industry product. It argues that such information would give the consumer and/or installer greater assurance that the product was right for the consumer's vehicle.

The Commission declines to adopt this suggestion. The current Guides and law allow original markings to be left on a part if (1) the part is properly disclosed as an industry product and (2) the reworker is identified (if the reworker is different from the original manufacturer). 46 There is no need for the Guides to require a reworker to retain trademarks of the original manufacturer. If a reworker believes leaving these marks on the part provides a marketplace benefit, it can do so, and consumers and installers can choose whether to purchase from those reworkers. A reworker who believes it benefits from removing original markings (in favor, for example, of promoting its own brand as a rebuilder), can adopt that practice, and consumers and installers can choose based on their own preferences.

The ARA suggested three other amendments to the Guides, stating that its support for the Guides was contingent on its proposed changes.

a. The ARA requested that the Commission prosecute car manufacturers and dealers who run ads promoting new repair parts. The ARA argues that such ads unfairly or deceptively imply that industry products, including recycled original-equipment body parts, are not as good as new parts. The ARA believes such ads “cause consumers to doubt the viability of recycled parts and cause consumers needlessly to annually spend billions of dollars. FTC should use these guides to help ensure that such anticompetitive practices cease.”  47 The ads the ARA provided, however, are in trade publications and promote the benefits of new manufacturer parts. Such general statements to a sophisticated audience have little likelihood of being broadly problematic. While the Commission would evaluate claims of deception on a case-by-case basis, it concludes that no changes to the Guides are necessary to address ARA's concerns. The Commission could take action against deceptive advertising, by car manufacturers or others, without changing the Guides.

b. The ARA believes the Guides should require car manufacturers to provide information on parts recycling in materials given to the consumer when the car is purchased as new. According to the ARA, European Union directives promote recycling and require vehicle manufacturers to provide information on the “dismantling, storage and testing” of components when an item is no longer useful. 48 Similarly, the ARA wants the Commission to recognize private standards setting organizations for recycled “green” parts and to state in the Guides that use of industry products is a form of recycling. 49

The Commission has decided not to make these changes. Historically, the Guides have neither promoted nor discouraged the use of industry products but have instead sought to ensure that consumers have accurate information from which to make a choice. The Commission sees no reason to deviate from this position.

c. The ARA requests that the Commission require online parts sellers to be licensed in the states in which they sell. 50 The Commission declines to make this change. The purpose of the Guides is to assist industry members in avoiding unfair or deceptive acts or practices in the advertising and sale of industry products, such as misrepresentations regarding the condition of products. The Commission declines to recommend licensing requirements for online sellers and has no authority to enforce state licensing laws.

Bryner Chevrolet took no explicit position on the Guides. Rather, it argued that safety-related industry products from a salvage yard—suspension, steering, and brake parts—are inherently dangerous and should not be used, even though insurance companies prepare estimates that include these unsafe parts. Bryner's comment fails to explain what changes to the Guides, if any, are needed to address its concerns.

The Commission has decided that Bryner's comment warrants no changes to the Guides. The comment contains no data or other evidence with which the Commission can weigh the threat to consumer safety against the benefits of access to less expensive parts. Even if the data existed, the safety of vehicles and their parts fits better within the jurisdiction of the National Highway Traffic Safety Administration rather than the FTC. 51

In response to the comments received and the Commission's own analysis, several changes have been made to the current Guides. This part discusses the changes to each section of the Guides.

The title has not been changed, other than to add a comma after “reconditioned,” for stylistic purposes. No substantive change is intended.

This section has undergone a number of changes, including the creation of two paragraphs. Paragraph (a) contains the existing § 20.0 with some revisions. First, the description of items to which the Guides apply (industry products) is changed from “used parts and assemblies containing used parts” to “parts that are not new, and assemblies containing such parts.” This change is intended to remove the circularity in the existing definition, in which “used” was part of the definition of “used.” The change also avoids potential confusion over the scope of industry products. “Used” sometimes refers to a part to which little has been done between its removal from one car and installation on another, with other terms applying to products receiving more reworking. 52 The change clarifies that “industry product” has a broad meaning that includes all parts that are not new, even parts that have been substantially reworked. 53

Section 20.0(a) of the revised Guides differs from § 20.0 of the existing Guides in other ways. The last sentence and following parenthetical, which exclude tires from the Guides, have been removed and tires have been added to the sample list of industry products. 54 In addition, the sample list of industry products has been shortened and updated, but no substantive change is intended by these changes other than the addition of tires. Finally, the section has been edited for style and clarity, with no substantive change intended by these edits.

Paragraph (b) of revised § 20.0 is a new provision, describing the purpose and status of the Guides, which are consistent with the Commission's long-standing treatment of industry guides.

Some of the language has been amended to improve readability. In addition, the order of the list of appropriate descriptive terms has been changed to approximate the amount of reworking that some industry members believe the terms indicate. 55 No substantive change is intended by any of these modifications.

Section 20.2, including the title, has been changed to add “other reworker” to those to whom this section applies. The persons and processes mentioned in this section relate to some ways of changing a part after its removal from a vehicle—“rebuild,” “remanufacture,” “recondition,” and “reline”—but other terms could also apply, including “overhaul,” “retread,” “repair,” and “refurbish.” Adding “other reworker” clarifies that, regardless of what is done to the part, the identity of the person doing it cannot be misrepresented, and may have to be disclosed. This section also contains stylistic changes designed to improve readability without changing the section's substance.

The parenthetical at the end of § 20.3, referring to § 20.2, has been removed as unnecessary. No substantive change is intended. The word “remanufactured” has been removed from subsection (a) of this section and added to subsection (b). As discussed earlier, this change results in the same requirements applying to the terms “remanufactured” and “factory rebuilt.”  56

For the reasons stated above, the Federal Trade Commission revises 16 CFR Part 20 to read as follows:

Why is the Department promulgating this rule?

This rule clarifies that under the Intercountry Adoption Universal Accreditation Act of 2012 (UAA), signed into law January 14, 2013, and effective July 14, 2014, the accreditation requirement and standards found in 22 CFR part 96 apply to any person (including non-profit agencies, for-profit agencies and individuals but excluding government agencies and tribal authorities), providing adoption services on behalf of prospective adoptive parents in an “orphan” intercountry adoption case described under section 101(b)(1)(F) of the Immigration and Nationality Act. Specifically, under Section 2 of the UAA “[t]he provisions of title II and section 404 of the Intercountry Adoption Act of 2000 (42 U.S.C. 14901 et seq.), and related implementing regulations, shall apply to any person offering or providing adoption services in connection with a child described in section 101(b)(1)(F) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(1)(F)), to the same extent as they apply to the offering or provision of adoption services in connection with a Convention adoption.”

Title II of the Intercountry Adoption Act of 2000 (IAA) (Public Law 106-279) requires that any person providing adoption services in a Convention case be an accredited, approved, or an exempted adoption service provider, and section 404 imposes civil and criminal penalties for violations of the Act. On February 15, 2006 the Department of State published implementing regulations at 71 FR 8064, on the accreditation and approval of agencies and persons in accordance with the Convention and the IAA. The UAA extends that rule from Convention cases to “orphan” cases. This regulatory change includes a number of technical edits to facilitate interpretation of the regulatory requirements and clarify designated accrediting entities' authority under the UAA and the IAA.

The Department is amending the regulation to make 22 CFR part 96, as affected by the UAA, easier to read. This rule will aid the accrediting entity applying the standards and adoption service providers required to comply with the standards. In particular, this rule adds references to the UAA where the IAA is referenced; adds a sentence concerning the UAA effective date; redefines “Central Authority” to include competent authorities, thereby clarifying how the term applies in countries that are not party to the Convention; redefines adoption records to include non-Convention case records and changes Section 96.25(b) concerning accrediting entity access to non-Convention records in cases subject to the UAA; defines the terms INA, IAA, and intercountry adoption; refers to “accreditation and approval” instead of to “Convention accreditation and approval;” revises Section 96.46(a)(4) to clarify that foreign supervised providers in non-Convention countries may not have a pattern of licensing suspensions relating to key Convention principles; and revises references to “Convention adoption,” “cases subject to the Convention,” “Convention case,” “Convention country,” and “Convention-related activity” to ensure that such references include non-Convention adoptions, activities, countries, and cases under the UAA.

Additionally, this rule corrects the references in 22 CFR 96.37(f)(2), and 96.47(a)(4) and (b), to refer to the correct Department of Homeland Security (DHS) definition of home study preparer and home study requirements. When the original rule was issued in 2006, DHS had not yet published its final rule concerning home studies in Convention cases. Thus, the 2006 State Department rule referred to the “orphan” home study requirements under 8 CFR 204.3(b) and (e), instead of the Convention home study requirements found in 8 CFR 204.301 and 311. This rule references the correct DHS regulation. The change clarifies that the home study must be prepared by an accredited agency, approved person, exempted provider, or a supervised provider. In addition, when the home study is not performed in the first instance by an accredited agency, then an accredited agency must review and approve it. The orphan and Convention home study requirements also differ concerning the required elements, applicable definitions, and the duty to disclose. The Department anticipates that DHS will publish specific guidance on how the Convention home study requirements will apply in orphan cases.

Finally, the rule amends 22 CFR Part 96 to delete obsolete provisions, including any references to temporary accreditation, deleting subpart N in its entirety. Under the IAA, temporary accreditation was only possible for a one- or two-year period following the entry into force of the Convention. Because the Convention entered into force for the United States on April 1, 2008, more than two years ago, temporary accreditation is no longer possible. The rule also deletes the section on “special provisions for agencies and persons seeking to be accredited or approved as of the time the Convention enters into force for the United States” and a reference to that section. Further, the rule revises requirements concerning “notification of accreditation and approval decisions” and “length of accreditation or approval period,” deleting provisions that applied only during the transitional period to the Convention entering into force and clarifying that for purposes of the notification requirement the phrase “accreditation or approval decisions” refers to whether an application is granted or denied.

Cases that are grandfathered under Section 2(c) of the UAA are not affected by this rule. See the Department's adoption Web site and the DHS/USCIS Web site for information on this grandfathering provision.

The Department invites comment on the edits to 22 CFR Part 96 described above.

The Department is publishing this rule as an interim final rule based on its determination for good cause that delaying the effect of this rule during the period of public comment would be impractical, unnecessary and contrary to public interest under Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B). Publishing the revision now will allow the rule to be in effect on the date the UAA goes into effect. This will aid the accrediting entity in its accreditation and oversight function and avoid confusion among adoption service providers and other members of the public about how the accreditation standards apply in “orphan” intercountry adoption cases.

The Department will accept comments from the public for 60 days after publication.

Consistent with section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities. The rule clarifies the requirements imposed by the UAA and IAA on adoption service providers providing services in “orphan” intercountry adoption cases described under section 101(b)(1)(F).

Section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48, codified at 2 U.S.C. 1532) generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule will not result in any such expenditure, nor will it significantly or uniquely affect small governments or the private sector.

This rule is not a major rule as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and import markets.

The Department of State has reviewed this proposed rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866, and has determined that the benefits of this final regulation justify its costs. The Department does not consider this rulemaking to be an economically significant action within the scope of section 3(f)(1) of the Executive Order.

The rule does not add any new legal requirements to Part 96 but reflects the changes affected by the UAA to apply these accreditation standards in orphan cases. The UAA and this rule benefit prospective adoptive parents, children, and birth families involved in the intercountry adoption process by ensuring that adoption service providers providing services in orphan cases are subject to the same accreditation standards and ongoing oversight and monitoring that apply in Convention cases.

Concerning the cost of the UAA, the Report from the Congressional Budget Office (CBO) on October 17, 2012, notes that the UAA imposes “a private sector mandate by requiring all providers of placement services for intercountry adoptions to be compliant with the accreditation standards of the Hague Convention.” The report notes, further, that “[t]he initial fees for obtaining accreditation can range between $10,000 and $16,000 depending on the size and annual revenue of the entity seeking accreditation. Annual fees to maintain accreditation are less than $1,000 on average, but are also subject to change based on the revenue of the entity. The cost of liability insurance for adoption agencies varies from state to state and can range between $10,000 and $50,000 per year.” Overall, CBO concluded: “Based on information gathered from industry professionals, the Department of Health and Human Services, and an accreditation agency, the number of entities that would be affected is relatively small. Therefore, CBO estimates that the aggregate cost of the mandate to the private sector would fall below the annual threshold established in UMRA ($146 million in 2012, adjusted annually for inflation).”

The Council on Accreditation (COA), the accrediting entity designated by the Department, reports that approximately forty new agencies have applied for accreditation since the UAA became law in January of 2013. This number is much fewer than COA had anticipated.

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

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

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

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

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

The Atlantic City Emergency Management Office has requested a temporary deviation from the current operating regulation of the US 40-322 (Albany Avenue) Bridge across Inside Thorofare, NJICW mile 70.0, at Atlantic City, NJ. The closure has been requested to ensure the safety of the runners and spectators that will be participating in the 4th Annual Atlantic Triathlon on September 13th and 14th, 2014. Under this temporary deviation, the US 40-322 (Albany Avenue) Bridge will remain in the closed position from 6 a.m. to Noon on September 13 and 14, 2014.

The vertical clearance of this bascule bridge is 10 feet above mean high water in the closed position and unlimited in the open position. The current operating regulation is outlined at 33 CFR 117.733(f), which requires that on the weekdays during this time of year, the bridge shall open on signal; except that from 11 p.m. to 7 a.m., the draw need only open if at least four hours of notice is given, from 9 a.m. to 4 p.m. and from 6 p.m. to 9 p.m., the draw need only open on the hour and half hour, and from 4 p.m. to 6 p.m. the draw need not open.

Vessels that can pass under the bridge without a bridge opening may do so at all times. The bridge will be able to open for emergencies. The Atlantic Ocean is an alternate route for vessels with mast heights greater than 10 feet. The Coast Guard will inform the users of the waterway through our Local and Broadcast Notice to Mariners' of the closure periods so that vessels can plan their transits to minimize any impact caused by the temporary deviation. At all other times during the affected period, the bridge will operate as outlined at 33 CFR 117.733(f).

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Pulaski Bridge has a vertical clearance of 39 feet at mean high water and 43 feet at mean low water. The existing drawbridge operating regulations are found at 33 CFR 117.801(g)(1).

The owner of the bridge, New York City Department of Transportation, requested a thirty-four day bridge closure to facilitate additional commuter bus traffic resulting from the closure of the Newtown MTA G-Line Tunnel.

The Newtown MTA G-Line Tunnel is closed for scheduled repairs resulting from hurricane Sandy.

Under this temporary deviation, the Pulaski Bridge may remain in the closed position for up to six consecutive days followed by four consecutive days when the bridge will provide normal bridge openings. The Pulaski Bridge shall operate, from July 30, 2014 through September 1, 2014, as follows:

July 30 through August 4, bridge closed.

August 5 through August 8, bridge opens normally.

August 9 through August 14, bridge closed.

August 15 through August 18, bridge opens normally.

August 19 through August 24, bridge closed.

August 25 through August 28, bridge opens normally.

August 29 through September 1, bridge closed.

Notice of each bridge closure will be provided two weeks in advance in the Local Notice to Mariners.

The waterway users are commercial oil barge vessels. The Coast Guard contacted the oil facilities and no objections were received to this bridge closure schedule. Vessels that can pass under the bridge in the closed position may do so at all times. There are no alternative routes but the bridge can be opened in the event of an emergency.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The New Jersey Department of Transportation requested a temporary deviation from the current operating regulations of the US Route 30 (Absecon Boulevard) Bridge across Beach Thorofare, NJICW mile 67.2 and the US40-322 (Albany Avenue) across Inside Thorofare, NJICW mile 70.0, both at Atlantic City, NJ. The temporary deviation has been requested to ensure the safety of the heavy numbers of pedestrians and vehicular traffic that would be transiting over the bridges for the two concerts at Bader Field located within the city limits.

The current operating regulation for this bridge is outlined fully in 33 CFR 117.733(e). During the requested closure period for the event, the draw would be required to open on the hour. In the closed position to vessels, the vertical clearance for this bascule-type bridge is 20 feet, above mean high water.

The current operating regulation for this bridge is outlined fully in 33 CFR 117.733(f). During the requested closure period for the event, the draw would be required to open on the hour and half hour from 6 p.m. to 9 p.m. and open on demand from between 9 p.m. to 10 p.m. In the closed position to vessels, the vertical clearance for this bascule-type bridge is 10 feet, above mean high water.

Under this temporary deviation both bridges will be closed, from 8 p.m. to 10 p.m. on Thursday July 31, 2014 and from 8 p.m. to 10 p.m. on Sunday August 3, 2014. Between the dates of the two closure periods the bridges shall return to their regular operating schedules.

The majority of the vessels that transit the bridges this time of the year are recreational boats. Vessels able to pass through the bridges in the closed positions may do so at anytime. Both bridges will be able to open for emergencies. The Atlantic Ocean is an alternate route for vessels unable to pass through the bridges in closed positions. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the closure periods for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

A. Public Participation and Request for Comments

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

If you submit a comment, please include the docket number for this rulemaking (USCG-2014-0483), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online ( http://www.regulations.gov ), or by fax, mail or hand delivery, but please use only one of these means. If you submit a comment online via http://www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand delivery, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a phone number in the body of your document so that the Coast Guard can contact you if we have questions regarding your submission.

To submit your comment online, go to type the docket number [USCG-2014-0483], in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number (USCG-2014-0483) in the “SEARCH” box and click SEARCH. Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

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

We do not now plan to hold a public meeting. You may submit a request for one on or before October 2, 2014, using one of the four methods specified under ADDRESSES . Please explain why one would be beneficial. If the Coast Guard determines that a public meeting would aid this rulemaking, they will hold one at a time and place announced by a later notice in the Federal Register .

Virginia Department of Transportation (VDOT), who owns and operates SR 175 Bridge across Lewis Channel and Black Narrows, mile 3.5, at Chincoteague, VA requested a temporary change to the existing bridge regulations, set out at 33 CFR 117.1005, to test a new schedule. In 2011, the new single-leaf bascule bridge was constructed on a new alignment replacing the former swing-type bridge that was located downstream from the Chincoteague maritime community. The new bridge alignment resulted in boaters having an improved channel access and the number of necessary bridge openings reduced.

In the closed position to vessels, the single-span bascule bridge has vertical clearance of 15 feet above mean high water.

The current operating schedule allows the draw to open on demand from midnight to 6 a.m., and every one and a half hours from 6 a.m. to midnight (at 6 a.m., 7:30 a.m., 9 a.m., 10:30 a.m., 12 p.m., 1:30 p.m., 3 p.m., 4:30 p.m., 6 p.m., 7:30 p.m., 9 p.m., 10:30 p.m., and midnight); except from 7 a.m., to 5 p.m. on the last consecutive Wednesday and Thursday in July, the draw need not be opened. This has been the regular operating schedule since November, 16, 2006.

The SR 175 Bridge is the only vehicular connection between the mainland and Eastern Shore of Virginia and Chincoteague Island. Tourism is a dominant industry of Chincoteague Island with activities taking place in the Town of Chincoteague, Chincoteague Island and Assateague Island.

Based on the decrease amount of vessel openings, the Chincoteague maritime community and the Accomack County Board of Supervisors favored a less restrictive opening schedule by proposing a test deviation from scheduled openings to an “on demand” schedule while still balancing the needs of marine and vehicular traffic. The monthly vessel openings at the SR 175 Bridge submitted by VDOT are as follows:

Bridge Opening Counts APR 2013 MAY 2013 JUNE 2013 JUL 2013 AUG

The bridge logs revealed that from April 2013 to April 2014, the SR 175 Bridge had experienced only 47 total vessel openings. The vessels consist of commercial fishing, motorboats, sailboats, trawlers and yachts.

From August 4, 2014, to November 3, 2014, the draw of the SR 175 Bridge, mile 3.5, at Chincoteague, shall open on signal in accordance with the general operating regulations set out at 33 CFR 117.5.

During this test deviation, VDOT will gather data on vessel openings in hopes of eliminating the current operating schedule for vessel passage.

This deviation has been coordinated with the waterway users transiting in this area and there is no expectation of any significant impacts on navigation. Vessels with mast heights of less than 15 feet, above mean high water, can continue to pass underneath the bridge in the closed position.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation.

This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not using the NPRM process. The Coast Guard received notice on May 3, 2014 that this barge-based fireworks display would take place. After full review of the event information and location, the Coast Guard determined that a safety zone is necessary. Delaying this rule by completing the full NPRM process would unnecessarily delay the safety zone and be contrary to public interest because the safety zone is needed to protect transiting vessels, spectators, and the personnel involved in the display from the hazards associated with fireworks displays taking place over the waterway. Completing the full NPRM process could also unnecessarily delay the planned event and possibly interfere with contractual obligations.

On August 30, 2014, as a part of a Wedding Reception, the Suneri Family will sponsor a barge-based fireworks display. The display will take place in the vicinity of mile 0.1 on the Monongahela River. This event presents safety hazards for spectators and vessels navigating in the area, and therefore a safety zone is needed to protect persons and property from the hazards associated with a fireworks display over the waterway.

The legal basis and authorities for this rule are found in 33 U.S.C. 1231, 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish and define regulatory safety zones.

The Coast Guard is establishing a safety zone for all waters of the Monongahela River, from mile 0.0 to mile 0.22, extending the entire width of the river. Entry into this zone is prohibited to all vessels and persons except persons and vessels specifically authorized by the Captain of the Port Pittsburgh. This rule is effective on August 30, 2014 and will be enforced from 8:30 p.m. until 11:00 p.m.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). This rule is limited in scope and will be in effect for a limited time period. Notifications to the marine community will be made through local notice to mariners and broadcast notice to mariners. Deviation from the rule may be requested and will be considered on a case-by-case basis by the Captain of the Port or a designated representative. The impacts on routine navigation are expected to be minimal.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit the Monongahela River, mile 0.0 to 0.22 from 8:30 p.m. until 11:00 p.m. on August 30, 2014. This safety zone will not have a significant economic impact on a substantial number of small entities because this rule is limited in scope and will be in effect for a limited time period and notifications to the marine community will be contacting local industry contacts that could be operating in the area during the event. Deviation from the rule may be requested and will be considered on a case-by-case basis by the Captain of the Port or a designated representative.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT , above.

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

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT , section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

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

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

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

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

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule establishes a safety zone for waters of the Monongahela River, from mile 0.0 to 0.22. This rule is categorically excluded from further review under paragraph 34(g) of figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR Part 165 as follows:

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking with respect to this rule because doing so would be impracticable and contrary to the public interest. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be both impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with a water ski show, which are discussed further below.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the Federal Register . For the same reasons discussed in the preceding paragraph, waiting for a 30 day notice period to run would be impracticable and contrary to the public interest.

The legal basis for this rule is the Coast Guard's authority to establish safety zones: 33 U.S.C. 1231; 33 CFR 1.05-1, 160.5; Department of Homeland Security Delegation No. 0170.1.

For 4 days in July and 4 days in August, 2014, the Coast Guard anticipates that a ski team will perform two 30-minute shows on the Fox River between the Main Street Bridge and the West Walnut Street Bridge in Green Bay, WI. These water ski shows will consist of 25 participants and three boats, operating within the main channel of the Fox River. The Captain of the Port, Lake Michigan, has determined that these water ski shows will pose a significant risk to public safety and property. Such hazards include collisions among the water ski show participant vessels and passing traffic on the Fox River.

With the aforementioned hazards in mind, the Captain of the Port, Lake Michigan, has determined that this temporary safety zone is necessary to ensure the safety of spectators and vessels during the water ski shows in Green Bay, WI. This rule is effective from July 9, 2014 until August 27, 2014. This rule will be enforced from 6 p.m. until 6:30 p.m., and again from 7 p.m. until 7:30 p.m. on each day of July 9, 16, 23, 30, and August 6, 13, 20, and 27, 2014. The safety zone will encompass all waters of the Fox River in Green Bay, WI from the Main Street Bridge in position 44°31′5.7″ N 088°0′ 54.7″ W to the West Walnut Street Bridge in position 44°30′54.3″ N 088°1′5.3″ W (NAD 83).

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Lake Michigan, or her designated on-scene representative. The Captain of the Port or her designated on-scene representative may be contacted via VHF Channel 16.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will only impact a small area and enforced for only 30-minute intervals on 4 days in July and 4 days in August, 2014. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port or her designated on-scene representative.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this temporary rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of Fox River during the times that this zone is enforced in July and August, 2014.

This safety zone will not have a significant economic impact on a substantial number of small entities for the reasons cited in the Regulatory Planning and Review section. Additionally, before the enforcement of the zone, we would issue local Broadcast Notice to Mariners so vessel owners and operators can plan accordingly.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT , above.

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

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

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

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

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

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

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone and, therefore it is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

The Coast Guard will enforce the Start of Chicago to Mackinac Race safety zone listed as item (e)(45) in Table 165.929 of 33 CFR 165.929. Section 165.929 lists many annual events requiring safety zones in the Captain of the Port Lake Michigan zone. This zone will encompass all waters of Lake Michigan in the vicinity of the Navy Pier at Chicago IL, within a rectangle that is approximately 1500 by 900 yards. The rectangle is bounded by the coordinates beginning at 41°53′15.1″ N, 087°35′25.8″ W; then south to 41°52′48.7″ N, 087°35′25.8″ W; then east to 41°52′49.0″ N, 087°34′26.0″ W; then north to 41°53′15″ N, 087°34′26″ W; then west, back to point of origin (NAD 83). This zone will be enforced on July 18, 2014 from 1:30 p.m. until 4 p.m., and on July 19, 2014, from 10 a.m. until 4:30 p.m.

All vessels must obtain permission from the Captain of the Port Lake Michigan or the on-scene representative to enter, move within, or exit a safety zone. Vessels and persons granted permission to enter the safety zone must obey all lawful orders or directions of the Captain of the Port Lake Michigan or a designated representative. Vessels that wish to transit through the safety zone may request permission from the Captain of the Port Lake Michigan. Requests must be made in advance and approved by the Captain of the Port before transits will be authorized. Approvals will be granted on a case by case basis.

This document is issued under authority of 33 CFR 165.929, Safety Zones; Annual events requiring safety zones in the Captain of the Port Lake Michigan zone, and 5 U.S.C. 552(a). In addition to this publication in the Federal Register , the Coast Guard will provide the maritime community with advance notification of this event via Broadcast Notice to Mariners or Local Notice to Mariners that the regulation is in effect. The Captain of the Port, Lake Michigan, or her on-scene representative may be contacted via Channel 16, VHF-FM.

Table of Acronyms DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking TFR Temporary Final Rule A. Regulatory History and Information

On March 4, 2014, the Coast Guard published a Final Rule in the Federal Register which listed safety zones corresponding to annual marine events in the Sector Lake Michigan zone (79 FR 12064). That final rule included a safety zone for two fireworks displays in Menominee Michigan (City of Menominee 4th of July and Waterfront Festival Fireworks). However, the Coast Guard was informed that the fireworks display locations this year will differ from what is currently published. Thus, the Coast Guard is issuing this temporary final rule to ensure that a safety zone is established around the launch position of the two fireworks displays in Menominee Michigan.

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA)(5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking with respect to this rule because doing so would be impracticable and contrary to the public interest. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be both impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect vessels and persons from the hazards associated with two fireworks displays, which are discussed further below.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the Federal Register . For the same reasons discussed in the preceding paragraph, waiting for a 30 day notice period to run would be impracticable and contrary to the public interest.

The legal basis for this rule is the Coast Guard's authority to establish safety zones: 33 U.S.C. 1231; 33 CFR 1.05-1, 160.5; Department of Homeland Security Delegation No. 0170.1.

On July 4, 2014, the City of Menominee will host its annual Fourth of July Celebration Fireworks. Additionally, on August 9, 2014, the City of Menominee will host its annual Waterfront Festival fireworks. These fireworks displays will be launched from the vicinity of the eastern breakwater of Menominee Marina. The Coast Guard anticipates that a large number of spectators will gather for these fireworks displays. The Captain of the Port, Lake Michigan, has determined that these fireworks displays will pose a significant risk to public safety and property. Such hazards include falling and/or flaming debris, and collisions among spectator vessels.

With the aforementioned hazards in mind, the Captain of the Port, Lake Michigan has determined that this temporary safety zone is necessary to ensure the safety of persons and vessels during the fireworks displays in the vicinity of Menominee Marina. This zone is effective from July 4, 2014 until August 9, 2014. This zone will be enforced from 9 p.m. until 10:30 p.m. on July 4, 2014 and from 9 p.m. until 10:30 p.m. on August 9, 2014. The safety zone will encompass all waters of Green Bay, in the vicinity of Menominee Marina, within a 1000-foot radius of a position at 45°6′26.3″ N and 087°35′59.2″ W (NAD 83).

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Lake Michigan or her designated on-scene representative. The Captain of the Port or her designated on-scene representative may be contacted via VHF Channel 16.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for a relatively short duration on two days. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this temporary rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in the affected portion of Green Bay on July 4 and August 9, 2014.

This safety zone will not have a significant economic impact on a substantial number of small entities for the reasons cited in the Regulatory Planning and Review section. Additionally, before the enforcement of this zone, we would issue local Broadcast Notice to Mariners so vessel owners and operators can plan accordingly.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

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

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

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

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

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

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone and therefore it is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 165 as follows:

The purpose of the CSP is to increase national understanding of the charter school model by—

(1) Providing financial assistance for the planning, program design, and initial implementation of charter schools;

(2) Evaluating the effects of charter schools, including the effects on students, student academic achievement, staff, and parents;

(3) Expanding the number of high-quality charter schools (as defined in the notice) available to students across the Nation; and

(4) Encouraging the States to provide support to charter schools for facilities financing in an amount that is more commensurate with the amount the States have typically provided for non-chartered public schools.

The purpose of the CSP Grants for National Leadership Activities (CFDA 84.282N) is to support efforts by eligible entities to improve the quality of charter schools by providing technical assistance and other types of support on issues of national significance and scope.

The CSP is authorized under 20 U.S.C. 7221-7221i; CSP Grants for National Leadership Activities are authorized under 20 U.S.C. 7221d.

The U.S. Department of Education (Department) published a notice of proposed priorities, requirements, and definitions (NPP) for the CSP Grants for National Leadership Activities in the Federal Register on December 3, 2013 (78 FR 72600). The NPP contained background information and our reasons for proposing the particular priorities, requirements, and definitions.

The Analysis of Comments and Changes section in this notice describes the differences between the priorities, requirements, and definitions we proposed in the NPP and these final priorities, requirements, and definitions. The two most significant changes are as follows:

We revised the language in Priority 2—Improving Accountability to clarify how applicants can describe how their projects will improve authorized public chartering agencies' capacity to approve new charter schools. We made this change because the proposed priority referred to authorized public chartering agencies' capacity to approve only high-quality charter schools, which, as defined in this notice, requires that the school show evidence of strong academic results for the past three years (or over the life of the school, if the school has been open for fewer than three years). While authorized public chartering agencies, or authorizers, should approve only high-quality charter petitions, it is not feasible for authorizers to approve only high-quality charter schools as defined in this notice, as the definition would not allow an authorizer to approve a new charter school with no academic achievement data.

We revised Priority 3—Students with Disabilities and Priority 4—English Learners to allow applicants to address the priorities by promoting collaborative activities between charter schools, non-chartered public schools, and as applicable, key special education stakeholders or key English learner stakeholders, which are designed to improve academic achievement and attainment outcomes for these student subgroups.

Public Comment: In response to our invitation in the NPP, 38 parties submitted comments on the proposed priorities, requirements, and definitions.

Generally, we do not address technical and other minor changes. In addition, we do not address comments that raise concerns not directly related to the proposed priorities, requirements, or definitions.

Analysis of Comments and Changes: An analysis of the comments and any changes in the proposed priorities, requirements, and definitions since publication of the NPP follows.

Comment: Multiple commenters made suggestions regarding how each of the priorities should be designated (i.e., absolute, competitive preference, or invitational). Specifically, one commenter suggested that we use Priority 1—Improving Efficiency through Economies of Scale as an invitational priority because, according to the commenter, the objectives of the priority are already in place through cooperative agreements with school districts and private organizations. Another commenter suggested that due to the overall growth of English learners, Priority 4—English Learners should be a competitive preference priority. A third commenter suggested that Priority 5—Personalized Technology-Enabled Learning should be an absolute priority, as positive impact can be seen across all student subgroups.

Discussion: This notice is designed only to establish the priorities that we may choose to use in the CSP Grants for National Leadership Activities competitions in 2015 and future years. We do not designate whether a priority will be absolute, competitive, or invitational in this notice; we retain the flexibility to determine how best to designate the priorities to ensure that funded projects address the most pressing areas of need for competitions in 2015 or in future years. When inviting applications for a competition using one or more of these priorities, we will designate the type of each priority through a notice in the Federal Register .

Changes: None.

Comment: One commenter suggested that each of the priorities should place more of an emphasis on communication and dissemination activities in order to ensure that each project's effectiveness can be reviewed and evaluated by other organizations.

Discussion: We appreciate the suggestion and agree that the evaluation of a project and the communication and dissemination of information about a project's effectiveness are important. Because entities receiving the CSP Grants for National Leadership Activities are required to demonstrate how they will disseminate information at the charter school national level (as defined in this notice), an emphasis on communication and dissemination already exists in this notice. Although we agree project evaluation and dissemination of the results of the evaluation are critical to the CSP Grants for National Leadership Activities, we do not think it is necessary to develop a program-specific requirement regarding evaluation because evaluation design can be addressed through selection criteria. Specifically, the Education Department General Administrative Regulations (EDGAR) include a selection criterion under 34 CFR 75.210(h), Quality of the Project Evaluation, that provides selection factors that encourage applicants to conduct rigorous evaluations of their projects and disseminate relevant findings, which could be incorporated in the selection criteria for a future competition under this program.

Changes: None.

Comment: Two commenters suggested creating a priority designed to increase the development and refinement of charter school leaders. One of the commenters stated that creating a leadership pipeline was important, particularly in the current context of major reforms, including the implementation of Common Core State Standards and new teacher evaluation systems. Both commenters stated that high-quality leaders are of critical national importance as States launch new assessments aligned with college- and career-ready standards.

Discussion: We agree that improving human capital development for the charter school sector is of national significance. However, we do not think a separate priority is needed to address this issue. We note that applicants already have flexibility to incorporate activities involving human capital development as part of projects addressing Priority 1—Improving Efficiency through Economies of Scale.

Changes: None.

Comment: One commenter proposed that the Department add an additional priority, “Promoting Racial and Economic Diversity.” Another commenter proposed we add a similar priority with a focus on diversity and cultural competency. Both commenters noted that the absence of a school diversity priority is especially troubling in light of Department publications that emphasize the importance of, and offer guidance with respect to, issues regarding diversity in public education.

Discussion: We appreciate the commenters' concerns and agree that increasing diversity is important; however, we do not think a separate priority is needed. We note that efforts to increase diversity and cultural competency can be included as allowable activities under the priorities selected for CSP Grants for National Leadership Activities competitions. In addition, the eligible applicants under other CSP competitions, such as those under the CSP State Educational Agency (SEA) competition, whose grantees provide start-up and dissemination grants directly to individual charter schools, are likely better suited to increase diversity in charter schools.

Changes: None.

Comment: One commenter suggested that we create an additional priority that rewards applicants that demonstrate their schools have an expulsion and suspension rate similar to, or lower than, the schools in their surrounding communities or school districts. In addition, the commenter recommended preference be given to grant applicants under this program that have a record of serving students with disabilities and English learners at the same or better rates than their surrounding communities or school districts.

Discussion: Although we appreciate the commenter's concerns, the CSP Grants for National Leadership Activities competition is designed to support projects of national significance for charter schools and is not meant to award points based on the specific characteristics of a given school.

Changes: None.

Comment: One commenter suggested we add a priority addressing the following topics: curriculum, instruction and assessment, data-driven decision-making and analysis, performance management, and professional learning communities.

Discussion: We agree that each of the topics above, especially for the purpose of improving student achievement and teacher effectiveness, is an area of national significance. However, we do not think a separate priority is needed to address these topics as applicants already have flexibility to incorporate these topics as part of projects addressing Priority 1—Improving Efficiency through Economies of Scale.

Changes: None.

Comment: One commenter suggested that many charter school incubators and other investing organizations play a major role in opening and closing charter schools; therefore, the Department should consider assisting such organizations in increasing the quality of their investment processes and the sharing of their best practices under this program.

Discussion: We think investing organizations, such as charter school incubators, play an important role in the charter school sector. We note that applicants already have flexibility to incorporate these concepts as part of projects addressing Priority 1—Improving Efficiency through Economies of Scale.

Changes: None.

Comment: One commenter recommended removing the national scope requirement from Priority 1—Improving Efficiency through Economies of Scale and Priority 2—Improving Accountability. The commenter stated that, for Priority 1, the costs of providing services for English learners and students with disabilities, and educators, in addition to the costs associated with bringing schools in different geographic locations together, far outweigh the costs saved by developing systems of scale. The commenter stated that Priority 2's requirement for projects of national significance and scope would exclude authorized public chartering agencies that limit their charters to only one State.

Discussion: As the CSP Grants for National Leadership Activities competition is dedicated to national activities, it is important that we award grants for projects with a national relevance. We disagree that the cost of implementing a project that is national in its scope outweighs the benefits of developing shared systems of collaboration and information. In Priority 1, the Department encourages organizations affiliated with the charter school sector to implement innovative ideas for achieving economies of scale and aggregating demand in the charter sector. Applicants addressing these priorities must describe how the project will have national significance and scope. However, the priorities do not dictate how an individual applicant should incorporate national significance or scope into its proposed project. We think that if an applicant proposed a project that would occur within only one State, but still demonstrated that the proposed project is of national significance and scope and meets all requirements, the proposed project could be eligible under Priority 1 or Priority 2.

Changes: None.

Comment: Two commenters suggested eliminating Priority 1—Improving Efficiency through Economies of Scale. One commenter felt that the priority does not warrant enough importance for this competition. A second commenter stated that the idea behind the priority was appealing, but that, in practice, transaction costs often outweigh any sustainable economies of scale.

Discussion: We think Priority 1 is important for this competition, as it will encourage more collaboration and improve efficiencies in the charter sector. This priority is intended to address the barriers that charter schools experience when trying to achieve economies of scale, and to promote shared systems for acquiring and developing resources supporting the charter school sector. By promoting projects of national significance that can encourage such shared systems and that support the dissemination and replication of successful practices nationally, including the assembly of communities of practice, we think eligible applicants will address the concerns and transaction costs that can potentially discourage such partnerships and collaborations. In addition, we think that the creation of partnerships and collaborations will foster the development of innovative practices in scaling operational services that may benefit schools. This priority is not only for charter school collaborations that are achieving economies of scale but could also be for organizations bringing charter schools together to develop economies of scale and thus reduce the costs and burden placed on the schools.

Changes: None.

Comment: One commenter noted that Priority 1—Improving Efficiency through Economies of Scale appears to indicate that urban centers may receive preferential treatment over rural areas. The commenter suggested that a competition of truly national scope must include a goal of creating and supporting both a single site and a network of vibrant rural sites, as well as serving large urban areas.

Discussion: The priorities are designed to encourage charter school projects with a national scope and significance. The definition of “charter school national level” used in Priority 1—Improving Efficiency through Economies of Scale and Priority 2—Improving Accountability states that the applicant's dissemination strategy at the charter school national level will consist of working across multiple States across the country, including rural and urban areas. Other priorities only require that projects are of national significance and scope, which does not give preference to urban centers over rural areas.

Changes: None.

Comment: One commenter urged that a series of in-depth cost studies be undertaken to provide a detailed overview of the types of costs associated with Priority 1—Improving Efficiency through Economies of Scale.

Discussion: We appreciate the commenter's concern regarding the types of costs associated with Priority 1—Improving Efficiency through Economies of Scale. Applicants that apply under this priority would need to describe how, and the extent to which, the activities proposed in their applications will achieve efficiencies. These narrative descriptions in the applications, along with the other measures in paragraphs (2) through (5) of Priority 1 will allow peer reviewers to evaluate whether, and to what extent, applicants will achieve efficiencies in the use of time, staff, money, services for special populations, or other resources. Provided an applicant meets all requirements under this priority, the applicant could propose to use these funds to conduct a cost study as part of its proposed project activities.

Changes: None.

Comment: One commenter asked if Priority 1—Improving Efficiency through Economies of Scale supports economies of scale that can arise from teacher-based cooperative arrangements or human capital management solutions. The commenter also asked how the priority would apply to individual schools, or whether a critical evaluation of office products or services, group licensing of licensed services, or a comparison with various sources of teachers and leaders from the cost efficiency perspective would be sufficient to meeting the requirements of the priority. In addition, the commenter asked if Priority 1—Improving Efficiency through Economies of Scale would apply to efficiencies across providers within a sector.

Discussion: Individual charter schools, provided they meet all requirements under this priority, would be eligible to apply as part of an existing or proposed partnership or consortium. An individual charter school would not be eligible to apply under this priority independent of an existing or proposed partnership or consortium. As stated in Priority 1—Improving Efficiency through Economies of Scale, applicants should seek innovative solutions to achieve efficiencies in the use of time, staff, money, services for special populations, or other resources for the purpose of creating, supporting, and sustaining high-quality charter schools (as defined in this notice). If teacher-based cooperative agreements, human capital management solutions, critical evaluations of office products or services, group licensing of licensed services, a comparison with various sources of teachers and leaders from the cost efficiency perspective, or other proposed activities would achieve these efficiencies, an applicant could include these activities to address Priority 1. Similarly, if proposed activities to increase the efficiencies across providers within a sector meet all requirements under this priority, an applicant could include those activities to address Priority 1.

Changes: None.

Comment: One commenter recommended that under Priority 1—Improving Efficiency through Economies of Scale, we consider how applicants can demonstrate that their policies, processes, and communications will achieve efficiencies in assisting special populations, or any activities related to running a high-quality charter school.

Discussion: Priority 1—Improving Efficiency through Economies of Scale is not limited to specific economies of scale, such as assisting special populations, or the specific activities of operating a high-quality charter school (as defined in this notice). We want all applicants to consider, based on their experience, the areas of greatest need for the charter school sector to determine how to address the priority. As such, applicants have the flexibility and discretion to propose projects that achieve efficiencies in any of the areas included in the priority language.

Changes: None.

Comment: One commenter suggested that Priority 1—Improving Efficiency through Economies of Scale include the possibility for organizations that have collaborations already in place to apply for funding.

Discussion: Priority 1—Improving Efficiency through Economies of Scale is intended to encourage the development of consortia of charter schools that will share systems for acquiring goods or services. We edited the second introductory paragraph of Priority 1—Improving Efficiency through Economies of Scale to clarify that existing partnerships or consortia could apply under this priority. We agree that this change is appropriate to further the purpose of the program and Priority 1.

Changes: We changed the second introductory paragraph of Priority 1 to “An applicant addressing this priority must apply as part of an existing or proposed partnership or consortium that includes two or more high-quality charter schools, as defined in thisnotice . . .”

Comment: One commenter suggested that the goal of Priority 1—Improving Efficiency through Economies of Scale is undermined by not including charter management organizations (CMOs) seeking to promote shared services and systems. The commenter noted that CMOs are often at the forefront of efforts to share services and systems, and that successful CMOs can serve as national models and leaders for district and charter schools in developing these shared systems and economies of scale. Conversely, another commenter suggested that Priority 1—Improving Efficiency through Economies of Scale clarify whether eligible applicants must be CMOs.

Discussion: To clarify, CMOs are eligible applicants under Priority 1. Eligible applicants include public and private nonprofit organizations with a mission that explicitly includes operating, supporting, or managing charter schools; this eligibility includes CMOs and many other types of organizations. In addition, upon further review, we determined that the language of the proposed priority would have allowed a single CMO to develop a partnership or consortium comprised solely of schools within its network, which was not the intent. We revised paragraph (2) of Priority 1—Improving Efficiency through Economies of Scale to clarify that the applicant must describe how activities will include members or proposed members that are not affiliated exclusively with a common network (e.g., a charter management organization). As such, a CMO applicant's project must include other entities beyond its current network. This requirement does not exclude CMOs from applying, but it does require project applications from CMOs to identify members of the proposed partnership or consortium beyond their network.

Change: We revised paragraph (2) of Priority 1—Improving Efficiency through Economies of Scale to “The members or proposed members of the partnership or consortium, how the composition of this partnership or consortium contributes to achieving efficiencies, and the specific activities each member or proposed member will implement. Applicants must demonstrate that members of the existing or proposed partnership or consortium are not affiliated exclusively with a common network (e.g., a charter management organization).”

Comment: Two commenters made suggestions regarding consortia in Priority 1—Improving Efficiency through Economies of Scale. One commenter suggested that charter schools that are not yet high-quality charter schools be allowed to participate in consortia and receive services through consortia. The commenter noted that the current language could be interpreted to only allow consortia to serve schools that already meet the definition of high-quality charter schools, thus reducing the effectiveness and viability of consortia. In addition, one commenter suggested that the priority should not be limited to developing consortia of charter schools but rather encourage the development of any innovative system that achieves economies of scale in the charter sector.

Discussion: The Department would like to clarify that Priority 1—Improving Efficiency through Economies of Scale does not limit consortia to serving only schools that meet the definition of high-quality charter schools; however, all charter schools that apply as part of a partnership or consortium, or apply under a group application, must meet that definition. The purpose of this priority is to establish a connected group that will create an opportunity for charter schools to develop strategies and practices to assist the charter schools in becoming high-quality charter schools (as defined in this notice). This priority creates an opportunity for charter schools to develop strategies and practices that will assist them in becoming high-quality charter schools, as defined by standards in this notice or by State and authorizer standards, whichever are more rigorous. Consortia members are not limited to charter schools; they may be comprised of any organizations that meet the eligibility requirements under the Eligibility section of this notice. As discussed elsewhere in this notice, we clarified this point by editing the second introductory paragraph of Priority 1. In addition, upon further review of the priority language, we changed the first introductory paragraph of Priority 1 and paragraph (3) of Priority 1. Creating and sustaining high-quality charter schools (as defined in this notice) is a fundamental component of high-quality authorizing; however, while authorized public chartering agencies should only approve petitions from applicants that demonstrate the capacity to create high-quality charter schools, we recognize that it is not possible for newly created charter schools to meet the definition of a high-quality charter school because the definition includes a requirement that the school show evidence of strong academic results for the past three years (or over the life of the school, if the school has been open for fewer than three years). As discussed elsewhere in this notice, new charter schools would not be able to meet the requirements of this definition. In addition to language that would help in creating charter schools that demonstrate the capacity to become high-quality and in sustaining those that are high-quality, we added language to support new charter schools in becoming high-quality.

Changes: We revised the first introductory paragraph of Priority 1—Improving Efficiency through Economies of Scale by replacing “creating and sustaining high-quality charter schools” with “creating, supporting, and sustaining high-quality charter schools (as defined in this notice).” In addition, in paragraph (3) of Priority 1, we replaced “How proposed project activities will help create and sustain high-quality charter schools” with “How the proposed project activities will help create charter schools that demonstrate the capacity to become high-quality charter schools, support new charter schools to become high-quality charter schools, and sustain charter schools that are high-quality.”

Comment: One commenter suggested that under Priority 1—Improving Efficiency through Economies of Scale, we broaden the scope of allowable activities to encourage information sharing and efforts, such as developing common systems of open enrollment.

Discussion: As stated in Priority 1—Improving Efficiency through Economies of Scale, applicants should seek innovative solutions to achieve efficiencies in the use of time, staff, money, services for special populations, or other resources for the purpose of creating, supporting, and sustaining high-quality charter schools (as defined in this notice). As written, the priority language provides applicants the flexibility and discretion to propose projects that achieve efficiencies in any of the areas included in the priority language. As such, an applicant is not prohibited from proposing activities to encourage information sharing and efforts such as developing common systems of open enrollment so long as that applicant meets the requirements of this priority and all eligibility requirements.

Changes: None.

Comment: One commenter suggested that we add language to paragraphs (1) and (2) under Priority 1—Improving Efficiency through Economies of Scale that requires applicants to document the involvement of parents and other members from the community where the charter school will be located. The commenter also suggested that applicants should be required to communicate guidance, rules, policy changes, and expectations to approved charter schools and the school's student applicants in an effective and timely manner.

Discussion: We appreciate the commenter's support for family and community engagement and effective communication with charter schools and their applicants and think because of the wide range of projects that could be considered under this priority, it is not appropriate to require a family and community engagement component of all applicants. In addition, a requirement to communicate guidance, rules, policy changes, and expectations to approved charter schools and the school's student applicants in an effective and timely manner would be included in a grant application and not in this final priority. Such requirements, if any, will be detailed in the notice inviting applications or application package for any future competition under this program.

Changes: None.

Comment: None.

Discussion: Upon further review, we determined that paragraph (1) of proposed Priority 1—Improving Efficiency through Economies of Scale, which supports projects that improve efficiency in the “use of time, staff, money, services for special populations, or other areas,” should be revised. We think that the word “areas” is too broad, and that “resources” suggests achieving economic efficiencies in a way that “areas” does not.

Changes: In paragraph (1) of Priority 1—Improving Efficiency through Economies of Scale, we replaced “areas” with “resources.” This change also maintains consistency in the language with the first sentence of the priority.

Comment: None.

Discussion: Upon further review, we realized that in the introductory paragraph of Priority 1—Improving Efficiency through Economies of Scale, we refer to “partnership or consortium” but we also refer to “consortium or consortia” in the priority. We want to maintain consistent language in these references.

Changes: We replaced “consortium or consortia” in the second introductory paragraph and paragraph (1) with “partnership or consortium.”

Comment: None.

Discussion: Upon further review, we determined that we could avoid using both “primarily” and “primary” in the same sentence in paragraph (4) of Priority 1—Improving Efficiency through Economies of Scale without changing the intended meaning. Accordingly, we have replaced “primary” with “chief.” In addition, in that same paragraph, we added LEAs as an example of a stakeholder group to whom the project activities could be disseminated secondarily.

Changes: We replaced the phrase “primarily to charter schools as the primary stakeholder group” with “primarily to charter schools as the chief stakeholder group.” We also included the term “LEAs” to read“. . . such as charter school support organizations, LEAs, and authorized public chartering agencies, as appropriate, at the charter school national level (as defined in this notice).”

Comment: None.

Discussion: Upon further review of Priority 1—Improving Efficiency through Economies of Scale, we determined that the dissemination strategy required under paragraph (4) includes dissemination at the charter school national level (as defined in this notice) and this creates confusion with the “national significance and scope” described in paragraph (6). To clarify our intent, we have edited “national significance and scope” to “national significance” in paragraph (6).

Changes: We replaced “national significance and scope” with “national significance” in paragraph (6) of Priority 1—Improving Efficiency through Economies of Scale.

Comment: One commenter suggested that a statement in the background section to Proposed Priority 2--Improving Accountability in the NPP be retracted. The sentence in the NPP said, “Once schools are open, accountability practices for charter schools need to be strengthened within States.” In addition, the commenter noted that use of the term “more consistently” in this same section of the background in the NPP has no backing to substantiate the claim that authorizers need to review their accountability practices.

Discussion: In the background section for this priority in the NPP, we provided an explanation of the development of the priority. Because charter schools across the country are not authorized by a single entity and 43 distinct sets of State laws govern charter schools, the potential for inconsistency exists in how charter schools are held accountable for their academic, financial, and operational performance results. In addition, we think that accountability practices for charter schools need to be strengthened within States. Priority 2—Improving Accountability is designed to support improvements in the accountability of authorizers. Specifically, this priority aims to support the dissemination of effective authorizing practices to all authorizers so they adopt practices that will strengthen oversight.

Changes: None.

Comment: One commenter noted that the language in paragraph (2) of Priority 2—Improving Accountability precludes applicants that serve charter schools in one State, or one city, from the opportunity to apply for funds and to extend their reach nationally. The commenter noted that the CSP Grants for National Leadership Activities competition would exclude the best of local authorized public chartering agencies that authorize charter schools in only one State or city.

Discussion: The purpose of Priority 2—Improving Accountability is to ensure that applicants build authorizer capacity and disseminate successful practices within multiple regions of the United States. While this requirement would limit local authorized public chartering agencies from applying individually, eligible applicants may apply as a partnership or consortium, allowing them to pool their experiences, skills, and resources. An authorized public chartering agency that authorizes charter schools in only one State could propose a project to improve authorized public chartering agencies' capacity at the regional level or national level.

Changes: None.

Comment: One commenter suggested that we add language to Priority 2—Improving Accountability that would require authorizers to develop and implement policies on how they will monitor charter applicants providing services to students with disabilities.

Discussion: To the extent that the commenter is referring to authorizer monitoring of the academic performance of charter schools, we agree that it is important for authorizers to focus in particular on students with disabilities. In addition, upon further review, we think it is also important for authorizers to focus similarly on English learners and other students in need of specialized services. Accordingly, we revised Priority 2—Improving Accountability by adding language that requires CSP Grants for National Leadership Activities applicants to include metrics to assess educational equity for students with disabilities, English learners, and other students in need of specialized services in their descriptions of the types of data authorizers should use to monitor and oversee charter schools. In addition, it is important to note that under section 612(a)(11) of the Individuals with Disabilities Education Act (IDEA) and 34 CFR 300.149(a)(2)(ii), the State educational agency, in carrying out its general supervisory responsibility, is required to ensure that all educational programs for students with disabilities administered in the State, including any other State agency or local agency, meet the educational standards of the State educational agency, including the requirements in the IDEA. Thus, under IDEA, the SEA has an overarching responsibility to ensure that all program requirements in the IDEA are met and to monitor implementation of those requirements by eligible entities, including charter schools that operate as LEAs that have established their eligibility under section 613 of the IDEA for Part B of the IDEA funds, and charter schools that are public schools of LEAs that receive Part B funds.

Changes: We revised paragraphs (1)(ii) and (2)(ii) of Priority 2—Improving Accountability to “Monitor and oversee charter schools through measureable performance goals and multiple sources of regularly collected academic and operational performance data (using financial data, disaggregated student discipline data, and disaggregated student performance data, including metrics to assess educational equity for students with disabilities, English learners, and other students in need of specialized services).”

Comment: One commenter suggested we expand Priority 2—Improving Accountability to ensure the eligibility of projects proposed by charter support organizations that are designed to improve the capacity to develop and track measurable performance goals. The commenter stated that responsibility for the success of a charter school rests on the school and its governing organization, and that any priority for improved accountability must also include activities that focus on school-level accountability.

Discussion: We recognize the importance of factors, such as governance and performance management, to charter operators and authorized public chartering agencies. However, Priority 2—Improving Accountability is designed to address accountability through authorized public chartering agencies. The types of activities suggested by the commenter would fall within the scope of Priority 1—Improving Efficiency through Economies of Scale.

Changes: None.

Comment: One commenter suggested Priority 2—Improving Accountability be a competitive preference priority because the commenter's State does not address authorizer accountability.

Discussion: The intent of Priority 2—Improving Accountability is to support projects that are designed to improve authorizer capacity. We think this priority will encourage authorizers to improve their practices, even if their State does not clearly address authorizer accountability. In addition, as stated elsewhere in this notice, this action is designed only to establish the priorities that we may choose to use in the CSP Grants for National Leadership Activities competitions in 2015 and future years. We do not designate whether a priority will be absolute, competitive, or invitational in this notice.

Changes: None.

Comment: One commenter suggested that we should broaden the scope of Priority 2—Improving Accountability to clarify that successful applicants may work with non-authorizers that have influence over, and play a role in, improving authorizer quality.

Discussion: Applicants may propose dissemination activities described in paragraphs (3) and (4) of Priority 2 that include organizations other than authorized public chartering agencies, such as SEAs or charter support organizations, so long as authorized public chartering agencies are the primary focus of those activities. While we understand the important role of non-authorizers in authorizer accountability, the intent of this priority is to build authorizer capacity.

Changes: None.

Comment: One commenter suggested that the phrase “within a variety of communities” in Priority 2—Improving Accountability be clarified or removed, as it is unclear to the commenter whether “communities” means geographic communities or another type of community.

Discussion: In this context, we intend “within a variety of communities” to mean a variety of geographic communities, specifically communities at the regional level (as defined in this notice), or at the national level (as defined in this notice). Notably, we added definitions of “national level” and “regional level,” and these definitions include the “variety of communities” phrasing that the commenter referenced. Therefore, we deleted the phrase from the language of Priority 2 to avoid duplicative phrasing.

Changes: We changed the text of Priority 2, paragraph (1) to “How the proposed project will improve, at the regional level (as defined in this notice) or the national level (as defined in this notice), authorized public chartering agencies' capacity to . . . ” We also changed the text of Priority 2, paragraph (2) to “The applicant's prior success in improving, at the regional level (as defined in this notice) or the national level (as defined in this notice), authorized public chartering agencies' capacity to . . .”

Comment: One commenter suggested that Priority 2—Improving Accountability should clarify the goal of improving authorizer capacity in paragraphs (1)(i) and (2)(i) by focusing on improving standards of approval, not the capacity to approve charter schools.

Discussion: To clarify, the intent of paragraphs (1)(i) and (2)(i) is improving standards of approval by authorized public chartering agencies. We think that ambitious standards for approving charter school applications and rigorous application review processes will ensure that authorizers approve only charter school applications that demonstrate the capacity to create and sustain high-quality charter schools (as defined in this notice). Furthermore, it is not feasible to expect authorizers to approve only high-quality charter schools, as the definition includes a requirement that the school show evidence of strong academic results for the past three years (or over the life of the school, if the school has been open for fewer than three years). We recognize that new charter schools would not be able to meet this requirement as they would not yet have evidence of strong academic results.

Changes: We replaced “Approve only high-quality charter schools that meet the standards of a rigorous application process and review” in paragraphs (1)(i) and (2)(i) of Priority 2—Improving Accountability with “Approve only applications that demonstrate capacity to create and sustain high-quality charter schools (as defined in this notice) and meet the standards of a rigorous application process and review.”

Comment: One commenter stated that the language ”maintain portfolios of high-quality charter schools by evaluating authorizer and portfolio performance and disseminating information on the performance of those portfolios” in proposed Priority 2—Improving Accountability was unclear and recommended it be removed.

Discussion: Evaluating authorizer and portfolio performance will result in more high-quality charter schools being approved; however, for the reasons discussed elsewhere in this notice, we understand that it is practically infeasible to use the “high-quality charter school” definition proposed in the NPP for charter school applicants that have not yet begun educating students. As such, we agree with the commenter that clarification is needed and have edited the language of Priority 2—Improving Accountability to provide that clarification.

In addition, while not in response to public comment, upon further review of Priority 2—Improving Authorizer Accountability, we removed “and help improve the ability of other authorized public chartering agencies to produce similar results” from paragraph (2)(iv). Our intent in this section is for applicants to include information about their prior successes in evaluating authorizer and portfolio performance and disseminating information on that performance. We did not intend for applicants that are authorized public chartering agencies to be required to show how they have helped other authorized public chartering agencies to produce similar results, as the proposed language implied.

Changes: We replaced “Maintain portfolios of high-quality charter schools by evaluating authorizer and portfolio performance and disseminating information on the performance of those portfolios” in Priority 2—Improving Accountability, paragraphs (1)(iv) and (2)(iv) with “Evaluate authorizer and portfolio performance and disseminate information on that performance.” We also removed “and help improve the ability of other authorized public chartering agencies to produce similar results” from paragraph (2)(iv).

Comment: One commenter suggested the Department encourage authorizers to employ data effectively by ensuring the data are available to and usable to relevant stakeholders, including parents and community members. The commenter also suggested that Priority 2—Improving Accountability support charter school authorizers that include disaggregated student data and data on student growth in their performance management systems.

Discussion: We appreciate the comments about the effective use of data, including the use of disaggregated student data to promote authorizer accountability. We believe applicants could use the dissemination activities described in Priority 2—Improving Accountability paragraphs (3) and (4) to ensure that data are made available to multiple stakeholders, including parents and community members. As such, we decline to edit that portion of the priority language. However, we agree that disaggregated data are important, particularly in identifying achievement gaps and discipline disparities, and including student growth data in performance management systems will improve the ability of authorizers to monitor and oversee charter schools as well as to measure performance. As such, we revised the priority language to emphasize the use of performance data.

Changes: In the introductory paragraph of Priority 2—Improving Accountability, we revised “monitor and oversee charter schools using data and measurable performance goals” to “monitor and oversee charter schools using multiple sources of data, including disaggregated student data, and measurable performance goals.” In addition, in paragraphs (1)(ii) and (2)(ii), we revised the language “Monitor and oversee charter schools through the regular collection of data, including student performance and financial data, and measurable performance goals” to “Monitor and oversee charter schools through measurable performance goals and multiple sources of regularly collected academic and operational performance data (using financial data, disaggregated student discipline data, and disaggregated student performance data, including metrics to assess educational equity for students with disabilities, English learners, and other students in need of specialized services).” In addition, upon further review, we revised the introductory paragraph of Priority 2—Improving Accountability by replacing “communicate the performance of that portfolio” with “disseminate information on the performance of charter schools,” as we think this language more closely corresponds to paragraph (3) of Priority 2.

Comment: One commenter suggested that Priority 2—Improving Accountability could improve accountability and authorizer practices through: Collective voluntary accountability, where a self-monitoring network could exist within the public charter school community; experimentation with new approaches such as parental influence on school accountability; and building knowledge bases, where authorized public chartering agencies could provide assistance to other authorizers in implementing successful practices that improve the quality of schools they authorize.

Discussion: The intended focus of Priority 2—Improving Accountability is on improving authorizer capacity, as we think effective authorizing and oversight influence charter school quality. While voluntary accountability, parental influence on accountability, and knowledge building and sharing could be components of improving accountability and authorizer practices, we think improving authorizer capacity, as described in Priority 2—Improving Accountability, would have the largest impact on improving accountability, and would, in turn, increase quality in the charter school sector.

Changes: None.

Comment: One commenter suggested that a research and evaluation component be added to Priority 2—Improving Accountability to enhance national understanding of high-quality authorizing and how policy can best support it. The commenter noted that the proposed priority should also consider how local districts and authorizers managing a diverse portfolio of schools can improve their accountability frameworks for both the public charter and non-chartered public sectors.

Discussion: In addition to meeting other requirements, successful applicants under this priority must improve authorizer capacity to evaluate authorizer and portfolio performance and disseminate that information to help improve the ability of other authorized public chartering agencies to produce similar results. While we think research and evaluation could greatly benefit authorizers, we decline to make a change. Provided that they meet all requirements under this priority, applicants' research and evaluation activities would be allowable under this program. In addition, the selection criterion 34 CFR 75.210(h), Quality of the Project Evaluation, provides selection factors that encourage applicants to conduct rigorous evaluations of their projects, which could be incorporated in the selection criteria for a future competition under this program.

Changes: None.

Comment: One commenter suggested that the activities under Priority 3—Students with Disabilities do not address the need of public charter schools to provide instruction for students with disabilities in the least restrictive environment (LRE), which is a major component of the IDEA.

Discussion: We agree with the commenter that LRE is critical to the education of all children with disabilities in charter schools. Because under the IDEA, students with disabilities and their parents retain all rights under the IDEA, including the right to be educated in the LRE, we do not believe it is necessary for this priority to focus on the IDEA's LRE requirements.

Changes: None.

Comment: One commenter stated that studies have shown that the lack of enrollment of students with disabilities in public charter schools is the result of policies and practices designed to minimize the enrollment of these students and not a capacity issue. The commenter further stated that “strategies and tools” referenced in Priority 3—Students with Disabilities are not the same as the “practices” referred to in the recommendations from a recent report by the U.S. Government Accountability Office (GAO). 1

Discussion: While we agree with the commenter that the enrollment of students with disabilities in public charter schools is an important issue, we find that studies on this topic have not identified a single reason for any disparity in enrollment that may occur in some schools and districts. The GAO report recommended that “the Secretary of Education take measures to help charter schools recognize practices that may affect enrollment of students with disabilities . . . ” We think that the “strategies and tools” that applicants develop in response to this priority will help them identify and improve practices that may affect enrollment of students with disabilities and increase equitable access to students with disabilities in public charter schools.

Changes: None.

Comment: One commenter stated that “promising practices,” as used in Priority 3—Students with Disabilities, are instructional approaches that improve student achievement, not approaches that only increase students with disabilities' access to schools to which they already have a legal right to attend. Furthermore, the commenter stated that an abundance of knowledge already exists on how to improve student achievement, and improving the achievement of students with disabilities in public charter schools does not differ significantly from improving their achievement in non-chartered public schools.

Discussion: We disagree that “promising practices” only refers to instructional approaches, and we consider practices that increase equitable access to public charter schools for students with disabilities and the schools' capacity to enroll students with disabilities, as well as approaches that improve student achievement, student growth, high school graduation rates, and college enrollment rates for students with disabilities to be promising practices.

While existing resources for improving the achievement of students with disabilities can benefit public charter schools and non-chartered public schools, charter schools need to be aware of, and have access to, such resources.

Changes: None.

Comment: One commenter suggested that to better address any issues that may exist around the enrollment of students with disabilities in public charter schools, the activities should be more closely aligned with recommendations made in the GAO report on the enrollment of students with disabilities in charter schools. 2

Discussion: The GAO report referenced above made the following recommendations:

1. Update existing guidance to ensure that public charter schools have better information about their obligations related to the enrollment of students with disabilities; and

2. Conduct additional fact finding and research to understand the factors affecting enrollment of students with disabilities in public charter schools and act upon that information, as appropriate.

We are in the process of updating existing guidance on the rights of students with disabilities in charter schools and are conducting additional fact finding and research to understand the factors affecting enrollment of students with disabilities in public charter schools. Our response to the GAO report cited above includes reviewing and documenting State policies, guidance, and reports regarding enrollment of, and services to, students with disabilities in charter schools and includes compiling a set of case studies of charter schools with both high and low enrollment of students with disabilities; these activities are continuing. In the meantime, the CSP Grants for National Leadership Activities competition includes Priority 3—Students with Disabilities to help address enrollment, access, and achievement of students with disabilities in charter schools.

In addition, the Department's response to the second recommendation in the GAO report stated that the CSP's grant competitions “are likely to continue to include competitive and invitational priorities for applications that propose to improve achievement for students with disabilities.” The inclusion of Priority 3—Students with Disabilities in this notice of final priorities addresses that recommendation.

Changes: None.

Comment: One commenter suggested that Priority 3—Students with Disabilities include a research component that would provide national leadership in discovering the nature of, and systematically identifying the solution to, the underrepresentation of students with disabilities in certain locations, as identified in the GAO report on the enrollment of students with disabilities in charter schools. 3 The commenter also suggested the Department prioritize research on the outcomes of students with disabilities who attend charter schools.

Discussion: The Department understands the importance of research and evaluation of issues around the enrollment of students with disabilities in charter schools, which may advance policies that support equitable access to charter schools for students with disabilities. While this priority does not specifically mention research components, applicants may propose activities focused on research and evaluation. While not the primary intent of this program, those activities would be permitted, so long as the applicant meets all other requirements and submits an application that meets all parts of the priority.

Changes: None.

Comment: One commenter suggested that Priority 3—Students with Disabilities mention stand-alone strict discipline academies. Specifically, the commenter mentions that these academies do not meet the open enrollment requirement.

Discussion: To receive funding through the CSP, a charter school must meet all requirements outlined in the definition of a charter school in section 5210 of the Elementary and Secondary Education Act of 1965, as amended (ESEA).

Therefore, to qualify as an eligible applicant under the CSP Grants for National Leadership Activities competition, a charter school must meet all parts of the definition of a charter school in section 5210 of the ESEA. This includes section 5210(1)(G), which requires that a charter school comply with certain Federal civil rights laws, including section 504 of the Rehabilitation Act of 1973, and Part B of the IDEA, and section 5210(1)(H), which requires that it is a school to which parents choose to send their children, and that admits students on the basis of a lottery, if more students apply for admission than can be accommodated. Further, although we are not familiar with the requirements for “strict discipline academies,” charter school discipline policies and procedures must comply with the requirements of section 504 and section 615(k) of the IDEA and their implementing regulations.

Changes: None.

Comment: Several commenters suggested a third activity for Priority 3—Students with Disabilities and Priority 4—English Learners. Specifically, the commenters recommended developing cooperation and collaboration between a public charter school, a non-chartered public school, special education communities, and English learner advocacy communities be added to the priorities, as each sector would provide insightful development and promote dissemination of effective approaches to serving these students.

Discussion: We appreciate the commenters' support for Priority 3—Students with Disabilities and Priority 4—English Learners. We agree with the commenters that promoting collaborative activities between a charter school, a non-chartered public school, key special education stakeholders, and key English learner stakeholders is important. After reviewing the comments, we also consider the suggested additions to be beneficial to both Priority 3—Students with Disabilities and Priority 4—English Learners.

Changes: We added the following activity as paragraph (3) of Priority 3—Students with Disabilities: “Promoting collaborative activities between charter schools, non-chartered public schools, and key special education stakeholders designed to improve student achievement, including student growth, and attainment (e.g., high school graduation rates, college enrollment rates) for students with disabilities.” We also added the following corresponding activity as paragraph (3) of Priority 4—English Learners: “Promoting collaborative activities between charter schools, non-chartered public schools, and key English learner stakeholders designed to improve student achievement, including student growth, and attainment (e.g., high school graduation rates, college enrollment rates) for English learners.”

Comment: One commenter suggested changing the wording of the “activities” section of Priority 3—Students with Disabilities to more appropriately reflect the legal obligations of public charter schools. The commenter suggested that projects designed to ensure equitable enrollment, recruitment, and opportunities in charter schools for students with disabilities would more accurately reflect the responsibility incumbent on public charter schools. Another commenter suggested that charter schools must be held accountable for ensuring access to all students and for providing meaningful teaching and instruction designed to improve educational outcomes for those students. The commenter felt that the language in the NPP did not include a focus on recruitment and serving students with disabilities.

Discussion: We agree that public charter schools must provide equitable access to students with disabilities. In this context, we think equitable access includes equitable enrollment opportunities as well as capabilities of public charter schools to meet the needs of students with disabilities during recruitment and once enrolled. In addition, we place a similar emphasis in Priority 4—English Learners.

Changes: We changed the language of Priority 3—Students with Disabilities and Priority 4—English Learners by replacing “to increase access” throughout with “to increase equitable access.” In Priority 3, we also changed “increase charter schools' capacity to enroll students with disabilities” in paragraphs (1) and (2) to “increase charter schools' capacity to recruit, enroll, and serve students with disabilities.” Throughout Priority 4, we made corresponding edits to maintain consistency with Priority 3. Specifically, we replaced “increase charter schools' capacity to enroll English learners” with “increase charter schools' capacity to recruit, enroll, and serve English learners . . .”

Comment: None.

Discussion: After additional review, we determined that Priority 3—Students with Disabilities and Priority 4—English Learners could be clarified by consistently referring to schools as “charter schools,” where appropriate. In addition, we determined that, depending on the nature of the project, it may not always be appropriate for each project under Priority 3 to “improve student achievement, student growth, high school graduation rates, and college enrollment rates for students with disabilities.” We edited paragraph (1) of Priority 3 to “improve student achievement, including student growth, and attainment (e.g., high school graduation rates, college enrollment rates) for students with disabilities” to allow more flexibility. Similarly, for Priority 4, we edited paragraph (1) to “improve student achievement, including student growth and English proficiency, and attainment (e.g., high school graduation rates, college enrollment rates) for English learners.” We made corresponding changes to paragraph (2) of both priorities for the same reason. Finally, we added “. . . of students with disabilities” in the introductory paragraph of Priority 3, to maintain a consistent structure with Priority 4.

Changes: For both Priority 3—Students with Disabilities and Priority 4—English Learners, we inserted the word “charter” before schools in three places. These changes do not alter the intended meaning; rather, we are adding the word “charter” to ensure clarity. In addition, in paragraph (1) of both priorities, we added the phrase “to recruit, enroll, and serve.” We also replaced “increase charter schools' enrollment, as well as improve achievement . . .” with “increase charter schools' enrollment of students with disabilities, as well as improve achievement . . .”

Comment: One commenter suggested that the Department follow the recommendations in the GAO report on English learners in charter schools  4 to examine why charter schools are unable to provide accurate enrollment numbers of specific student populations, especially English learner populations. The commenter noted the importance of educators gaining a better understanding of the nature of the problem at a national level, which will better position researchers and practitioners to address concerns of limited access to charter schools for English learners.

Discussion: The Department agrees that a better understanding of charter school non-reporting or under-enrollment of English learners should be addressed. In response to the GAO report's finding that they were unable to compare English learners' enrollment in charter schools to English learners enrollment in non-chartered public schools due to incomplete data, the Department continues to improve its data collection and has been conducting a systematic review and reconciliation of directory data across data sources. In addition, the CSP Grants for National Leadership Activities competition includes Priority 3—Students with Disabilities and Priority 4—English Learners to help address the issues of enrollment, access, and achievement of students with disabilities and English learners in charter schools. We do not explicitly include data collection in either priority because data collection activities may be eligible project activities under Priority 3 or Priority 4.

Changes: None.

Comment: One commenter suggested that Priority 5—Personalized, Technology-Enabled Learning should specifically exclude virtual schools from eligibility.

Discussion: Virtual schools, provided they meet the eligibility requirements described in the Eligibility section, will not automatically be deemed ineligible. However, the intent of this priority is to support projects that incorporate learning models that blend traditional, classroom-based teaching and learning with virtual, online, or digital delivery of personalized instructional content, and which are national in scope.

Changes: None.

Comment: One commenter suggested that the Department expand each priority to ensure that students with disabilities are specifically mentioned as examples of the students who may require personalized and technology-based supports and services. The commenter noted that, in particular, Priority 5—Personalized Technology-Enabled Learning will be most effective if it builds on previous work funded by the Department that provided training to charter school authorizers and operators focused on serving students with disabilities.

Discussion: Activities that focus on students with disabilities may be included under any priority, and activities that include personalized and technology-based services would be eligible under Priority 5—Personalized Technology-Enabled Learning. We agree that students with disabilities can benefit from personalized learning, and Priority 5—Personalized Technology-Enabled Learning provides that such projects should be designed to support high-need students (as defined in this notice), which includes students with disabilities.

Changes: None.

Comment: One commenter suggested the Department clarify the types of activities that it considers essential and that would be supported under Priority 5—Personalized Technology-Enabled Learning; specifically, the commenter suggested highlighting blended learning as a model supported under this priority. Similarly, another commenter provided specific examples of the types of activities that should be supported under this priority. A third commenter suggested that the Department ensure Priority 5—Personalized Technology-Enabled Learning focus on the development of education technology and online platforms, collaborative practices, and instructional models for dissemination, in addition to research into blended learning implementation.

Discussion: The CSP Grants for National Leadership Activities competition is designed to encourage innovative solutions to address a number of public educational needs across the Nation. In order to support innovation in technology-enabled instructional models, tools, and supports, we do not want to restrict applicants to specific types of activities and have written this priority to allow applicants flexibility in the projects they propose. In addition, we note that applicants proposing projects with a focus on education technology and online platforms, collaborative practices, and instructional models for dissemination may be eligible under Priority 1—Increasing Efficiency through Economies of Scale, in addition to Priority 5.

Changes: None.

Comment: None.

Discussion: After additional review, we determined that the language of Priority 5—Personalized Technology-Enabled Learning should remain consistent with an ultimate goal of increasing overall student learning, rather than simply providing instruction. The technology-enabled instructional models, tools, and supports referenced in this priority are intended to personalize students' learning. The phrase “personalize instruction” that was included in the proposed priority implies an emphasis on the process, (i.e., instruction), rather than on the outcome (i.e., learning).

Changes: We removed the phrase “personalize instruction” from Priority 5—Personalized Technology-Enabled Learning and revised the priority language to say “supports that personalize learning.”

Comment: None.

Discussion: We added the definitions for “national level” and “regional level,” as these terms are now referenced within other parts of this notice. These definitions are used in other Department grant competitions and the definitions come from 34 CFR 77.1.

Changes: The definitions for “national level” and “regional level” have been added.

Comment: One commenter suggested the Department revise the definition of “significant compliance issues” to accommodate current practice by rigorous authorizers that are unlikely to revoke a charter for a single or limited event. The commenter further explained that the proposed definition reflected a zero-tolerance approach that is inappropriate, as it takes a pattern of misbehavior, or individual failures that are more egregious, to lead an authorized public chartering agency to revoke a school's charter.

Discussion: The Department agrees with the need for further clarification on the issue of compliance with Federal and State law, and authorizer policy.

Changes: We revised the definition of “significant compliance issue” to clarify that these are issues that, if not addressed or are representative of a pattern of misconduct or non-compliance, could lead to the revocation of a school's charter.

Comment: Two commenters suggested altering the definition of “charter school national level.” One commenter suggested changing the proposed definition to clarify that any public or private nonprofit organization with a mission that explicitly includes supporting charter schools is eligible for this competition, including those that are able to support a wide variety of charter schools from both urban and rural areas. Another commenter noted that the definition places an undue burden on an applicant to disseminate urban-focused best practices to agencies, organizations, or groups that must serve rural agencies.

Discussion: The definition of “charter school national level” is not designed to limit eligible organizations, but rather to define a level at which activities take place. The Department believes that a broad, national scope for project activities and for dissemination is necessary to meet the goals of the program.

Changes: None.

Comment: Multiple commenters requested that the definition of “high-quality charter school” be revised. One commenter suggested the Department make the definition consistent with the definition of “highly mobile students,” with particular attention given to how highly mobile students and related data will be counted in accountability assessments across State lines. Two other commenters noted that the proposed definition for high-quality charter school did not take into account new schools with no achievement data and would be applied comprehensively, instead of considering additional factors that make up high-quality schools. In addition, one of those commenters stated that the proposed definition did not take into account the role of authorizers and accountability systems within applicable States.

Discussion: The definition of “high-quality charter school” is designed to emphasize the importance of a school's evidence of strong academic performance for the past three years, or over the life of the school, if the school has been open for fewer than three years, and we decline to make the definition consistent with that of highly mobile students, which is not used in this notice. We agree that the proposed definition of “high-quality charter school” should be strengthened to take into account the role of authorizers and accountability systems and have added paragraph (a)(4), which focuses on the results of a performance framework established by the State or authorized public chartering agency. In addition, we made a number of clarifying edits to paragraphs (a)(1) and (a)(3). These are not intended to change the meaning of the priority but only to clarify our intent. As described elsewhere in this document, we also edited parts of Priority 1—Improving Efficiency through Economies of Scale and Priority 2—Improving Accountability so authorizers are not held accountable for authorizing only high-quality charter schools or only having high-quality charter schools in their portfolios of schools. In addition, the insertion of “and equitable and nondiscriminatory treatment for students” in paragraph (a)(5) of the high-quality charter school definition is meant to ensure that compliance extends to the civil rights of students. Upon further review, we edited paragraph (a)(1) of the same definition to include high school graduation rates and college and other postsecondary enrollment rates. Paragraph (a)(3) has been similarly edited in that the list of achieved results include student attendance, retention rates, and postsecondary attendance and persistence rates.

Changes: We added the clarifying phrases “(including, if applicable, high school graduation rates and college and other postsecondary enrollment rates)” and “served by the charter school” in paragraph (a)(1). In paragraph (a)(3), we added “student attendance and retention rates,” “postsecondary attendance and persistence rates,” and “if applicable and available” in paragraph (a)(3). We also removed the word “achieved” before the word “results” in paragraph (a)(3), as it is redundant. We added paragraph (a)(4): “Positive results on a performance framework established by the State or authorized public chartering agency for purposes of evaluating charter school quality” and renumbered proposed paragraph (a)(4) to be paragraph (a)(5). In the final paragraph (a)(5), we added “and equitable and nondiscriminatory treatment for students” at the end of the paragraph. We also added a new paragraph (b) to the definition to clarify that an applicant can use its State's definition of high-quality charter school, provided that the State's definition is at least as rigorous as the definition included in this notice.

Comment: None.

Discussion: Upon further review of the definition of “high-quality charter school,” we determined that the third paragraph of this definition, which has been used in multiple Department competitions and shows how achieved results compare to results for similar lol students in the State, was missing. Therefore, we included language to ensure the element is discussed.

Changes: In paragraph (a)(3) of the definition for “high-quality charter school,” we inserted “that are above the average academic achievement results for such students in the State.”

Comment: One commenter suggested that the definition of “student achievement” include other universally available measures of student learning that are tied to teacher evaluations, which currently are not addressed in the definition.

Discussion: The definition for “student achievement” requires that any measures used be comparable across schools, which we think is a key component of this definition. As noted elsewhere in this notice, it is important that the CSP Grants for National Leadership Activities competition use definitions consistent with other Department programs. Because of the variation in measures that tie student learning to teacher evaluations, and because proposed projects will be national in scope, we do not think that applicants would be able to compare increases in student achievement across districts and States if teacher evaluation measures were to be incorporated into this definition.

Changes: None.

Comment: Two commenters suggested that the proposed definition of “high-need students” should be reviewed for further clarification. One commenter suggested adding “first generation college-bound students” to the list of high-need student indicators. Another commenter noted that this definition should be reviewed to ensure the focus is on charter schools and not higher education.

Discussion: We agree with the commenters that it is important to ensure that each definition used in the CSP Grants for National Leadership Activities competition is appropriate to the CSP's mission. The definition for high-need students does not specifically mention charter schools or non-chartered public schools; however, any student at risk of educational failure would be included under the definition, regardless of the school that student attends.

Changes: None.

Comment: One commenter suggested that the Department develop definitions for “rural public charter schools” and “Rural State.”

Discussion: Rural public charter schools and rural State are not terms that are used in these priorities, so it is unclear how those definitions would be used. Because the commenter did not provide context for this suggestion, we are unable to provide additional clarification. Applicants that want to demonstrate their commitment to serving rural areas may use elements of the definition of “rural local educational agency,” which is defined by other programs at the Department as an LEA that is eligible under the Small Rural School Achievement program or the Rural and Low-Income School program authorized under Title VI, Part B of the ESEA. See www2.ed.gov/nclb/freedom/local/reap.html. The elements of the definition can be used by applicants to demonstrate their commitment to serving rural areas.

Changes: None.

Comment: One commenter suggested modifying the definition of “community of practice” to include public and private nonprofit organizations with a mission that explicitly includes supporting charter schools to better promote a community of practice within and across State lines.

Discussion: We currently include the term “stakeholders” in the definition, which provides a wider range of options than the suggested change. Because we do not want to unnecessarily limit participation in the community of practice (as defined in this notice), we decline to revise the term used in the definition in a manner that would limit the types of stakeholders included in the communities of practice.

Changes: None.

Comment: One commenter noted that the definition for “logic model” was different than the definition currently used in 34 CFR 77.1.

Discussion: As noted elsewhere in this notice, we agree that it is important the CSP Grants for National Leadership Activities competition use definitions consistent with other Department programs. As such, we will use the same definition for logic model as included in 34 CFR 77.1.

Changes: We replaced the term “charter school logic model” with “logic model” from 34 CFR 77.1.

Comment: One commenter suggested the language in the Eligibility section be reviewed. Specifically, the commenter felt that there is no explicit language permitting an applicant to apply as an individual nonprofit organization, although that may be implied. The commenter suggested we change “Eligible applicants may apply as a group or consortium” to “Eligible applicants may apply as an individual organization as defined above or as a partnership or consortium.” A second commenter asked whether an individual charter school operator could be an eligible applicant.

Discussion: Eligible applicants include public and private nonprofit organizations with a mission that explicitly supports operating, supporting, or managing charter schools, which makes individual organizations eligible. The intent of this grant competition is to support projects of national significance and scope; however, we agree that clarification is needed on whether individual charter schools are eligible. An individual charter school that meets all eligibility requirements could apply under this competition. We also want to clarify that eligible applicants may be organizations whose missions involve operating, supporting, and managing charter schools—not just supporting charter schools. Upon further review of the Eligibility section, we determined that additional clarity was needed to reflect that CMOs are eligible entities. In addition, upon further review, we added a requirement that, to the extent that eligible applicants that are partnerships or consortia include charter schools, the lead applicant, each charter school operated or managed by the lead applicant and all partnership or consortium members, including, in the case of a CMO applicant, all charter schools managed by the CMO, must meet the definition of high-quality charter school (as defined in this notice). We made this change to clarify that CMO applicants are eligible and that all charter schools in a partnership or consortium must meet the definition of high-quality charter school. We also added a requirement that eligible applicants that are charter schools may not have any significant compliance issues (as defined in this notice) to ensure that these applicants do not have any violations that did, will, or could lead to the revocation of the school's charter.

Changes: We edited the Eligibility section to include “public and private nonprofit entities with a mission that explicitly includes operating, supporting, or managing charter schools.” In addition, we added the following language to the Eligibility section: “Eligible applicants that are charter schools may not have any significant compliance issues (as defined in this notice), including in the areas of student safety, financial management, civil rights, and statutory or regulatory compliance. In addition, to the extent that eligible applicants that are partnerships or consortia include charter schools, the lead applicant, each charter school operated or managed by the lead applicant, and all partnership or consortium members, including, in the case of a CMO applicant, all charter schools managed by the CMO, must meet the definition of high-quality charter school (as defined in this notice).”

Comment: One commenter suggested changing the regulations that require eligible public and private nonprofit organizations to have a mission that explicitly includes supporting charter schools so that all organizations and communities affected by such policies may apply whether or not their missions provide explicit references to supporting charter schools. The commenter recommended that community-based organizations and national intermediaries that represent the communities served by charter schools be considered as eligible entities.

Discussion: The Eligibility section does not preclude community-based organizations and national intermediaries from applying, provided they meet all eligibility requirements, including that their organizational missions explicitly include supporting charter schools. Because funds for the CSP Grants for National Leadership Activities competition are appropriated for charter schools, we seek to ensure that organizations supported by these funds are focused on supporting charter schools.

Changes: None.

The Assistant Deputy Secretary for Innovation and Improvement establishes the following five priorities for the CSP Grants for National Leadership Activities competition. We may apply one or more of these priorities in any year in which this program is in effect.

This priority is for projects of national significance and scope that promote shared systems for acquiring goods or services to achieve efficiencies in the use of time, staff, money, services for special populations, or other resources for the purpose of creating, supporting, and sustaining high-quality charter schools (as defined in this notice).

An applicant addressing this priority must apply as part of an existing or proposed partnership or consortium that includes two or more high-quality charter schools, as defined in this notice, and must include detailed descriptions (including supporting documentation) of the following:

(1) The proposed project activities of the partnership or consortium and how and to what extent the activities will achieve efficiencies in the use of time, staff, money, services for special populations, or other resources related to operating charter schools;

(2) The members or proposed members of the partnership or consortium, how the composition of this partnership or consortium contributes to achieving efficiencies, and the specific activities each member or proposed member will implement. Applicants must demonstrate that members of the existing or proposed partnership or consortium are not affiliated exclusively with a common network (e.g., a charter management organization);

(3) How the proposed project activities will help create charter schools that demonstrate the capacity to become high-quality charter schools, support new charter schools to become high-quality charter schools, and sustain charter schools that are high-quality;

(4) How information about the proposed project activities will be disseminated primarily to charter schools as the chief stakeholder group, and secondarily to other stakeholders, such as charter school support organizations, LEAs, and authorized public chartering agencies, as appropriate, at the charter school national level (as defined in this notice);

(5) How the dissemination strategy will include assembling a community of practice (as defined in this notice) for the stakeholder group(s) served; and

(6) The national significance of the proposed project.

This priority is for projects of national significance and scope that are designed to improve authorized public chartering agencies' capacity to conduct rigorous application reviews; monitor and oversee charter schools using multiple sources of data, including disaggregated student data, and measurable performance goals; close underperforming schools; replicate and expand high-performing schools; maintain a portfolio of high-quality charter schools; and evaluate and disseminate information on the performance of charter schools.

Applicants addressing this priority must provide detailed descriptions (including supporting documentation) of the following:

(1) How the proposed project will improve, at the regional level (as defined in this notice) or the national level (as defined in this notice), authorized public chartering agencies' capacity to:

i. Approve only applications that demonstrate capacity to create and sustain high-quality charter schools (as defined in this notice) and meet the standards of a rigorous application process and review;

ii. Monitor and oversee charter schools through measurable performance goals and multiple sources of regularly collected academic and operational performance data (using financial data, disaggregated student discipline data, and disaggregated student performance data, including metrics to assess educational equity for students with disabilities, English learners, and other students in need of specialized services);

iii. Identify schools eligible for renewal and those that should be closed, through clear renewal and revocation criteria; and

iv. Evaluate authorizer and portfolio performance and disseminate information on that performance;

(2) The applicant's prior success in improving, at the regional level (as defined in this notice) or the national level (as defined in this notice), authorized public chartering agencies' capacity to:

i. Approve only applications that demonstrate the capacity to create and sustain high-quality charter schools (as defined in this notice) and meet the standards of a rigorous application process and review;

ii. Monitor and oversee charter schools through measurable performance goals and multiple sources of regularly collected academic and operational performance data (using financial data, disaggregated student discipline data, and disaggregated student performance data, including metrics to assess educational equity for students with disabilities, English learners, and other students in need of specialized services);

iii. Identify schools eligible for renewal and those that should be closed, through clear renewal and revocation criteria; and

iv. Evaluate authorizer and portfolio performance and disseminate information on that performance;

(3) How dissemination activities focus on authorized public chartering agencies as the primary stakeholder group, and secondarily on other stakeholders, such as charter school support organizations or charter schools, as appropriate, at the charter school national level (as defined in this notice);

(4) How the dissemination strategy will include assembling a community of practice (as defined in this notice) for the stakeholder group(s) served; and

(5) The national significance of the proposed project.

This priority is for projects of national significance and scope that are designed to increase equitable access to charter schools for students with disabilities and increase charter schools' enrollment of students with disabilities, as well as improve achievement (including student achievement and student growth) and attainment (including high school graduation rates and college enrollment rates) for students with disabilities in charter schools, through one or more of the following activities:

(1) Developing strategies and tools to increase equitable access to charter schools for students with disabilities and increase charter schools' capacity to recruit, enroll, and serve students with disabilities, and improve student achievement, including student growth, and attainment (e.g., high school graduation rates, college enrollment rates) for students with disabilities.

(2) Disseminating promising practices for increasing equitable access to charter schools for students with disabilities; increasing charter schools' capacity to recruit, enroll, and serve students with disabilities; and improving student achievement, including student growth, and attainment (e.g., high school graduation rates, college enrollment rates) for students with disabilities.

(3) Promoting collaborative activities between charter schools, non-chartered public schools, and key special education stakeholders designed to improve student achievement, including student growth, and attainment (e.g., high school graduation rates, college enrollment rates) for students with disabilities.

This priority is for projects of national significance and scope that are designed to increase equitable access to charter schools for English learners and increase charter schools' enrollment of English learners, as well as improve academic achievement (including student achievement and student growth) and attainment (including English proficiency, high school graduation rates, and college enrollment rates) for English learners, through one or more of the following activities:

(1) Developing strategies and tools to increase equitable access to charter schools for English learners; increase charter schools' capacity to recruit, enroll, and serve English learners; and improve student achievement, including student growth and English proficiency, and attainment (e.g., high school graduation rates, college enrollment rates) for English learners.

(2) Disseminating promising practices for increasing equitable access to charter schools for English learners; increasing charter schools' capacity to recruit, enroll, and serve English learners; and improving student achievement, including student growth and English proficiency, and attainment (e.g., high school graduation rates, college enrollment rates) for English learners.

(3) Promoting collaborative activities between charter schools, non-chartered public schools, and key English learner stakeholders designed to improve student achievement, including student growth and English proficiency, and attainment (e.g., high school graduation rates, college enrollment rates) for English learners.

This priority is for projects of national significance and scope that are designed to improve achievement and attainment outcomes for high-need students (as defined in this notice) through the development and implementation in charter schools of technology-enabled instructional models, tools, and supports that personalize learning.

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

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

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

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

The Assistant Deputy Secretary for Innovation and Improvement establishes the following program requirements for the CSP Grants for National Leadership Activities competitions. We may apply one or more of these requirements in any year in which this program is in effect. By requiring that applicants provide a logic model supporting their projects and restricting eligibility for grants to specific types of entities, the Department will ensure that grantees have the preparation and experience to be successful with a CSP Grants for National Leadership Activities grant.

(a) Logic Model: An applicant for a CSP Grants for National Leadership Activities grant must provide a logic model (as defined in this notice) supporting its project.

(b) Eligibility: Eligible applicants include (1) State educational agencies (SEAs) in States with a State statute specifically authorizing the establishment of charter schools; (2) authorized public chartering agencies; (3) public and private nonprofit organizations with a mission that explicitly includes operating, supporting, or managing charter schools; and (4) public and private nonprofit organizations in partnership with an SEA, authorized public chartering agency, or a public or private nonprofit organization with a mission that explicitly includes supporting charter schools. Eligible applicants may apply as a partnership or consortium and, if so applying, must comply with the requirements for group applications set forth in 34 CFR 75.127-75.129.

Eligible applicants that are charter schools may not have any significant compliance issues (as defined in this notice), including in the areas of student safety, financial management, civil rights, and statutory or regulatory compliance. In addition, to the extent that eligible applicants that are partnerships or consortia include charter schools, the lead applicant, each charter school operated or managed by the lead applicant, and all partnership or consortium members, including, in the case of a CMO applicant, all charter schools managed by the CMO, must meet the definition of high-quality charter school (as defined in this notice).

In addition to the definitions otherwise included in section 5210 of the ESEA, which includes the definition of “charter school,” and 34 CFR 77.1, we are establishing the following definitions for the CSP Grants for National Leadership Activities competition. We may apply one or more of these definitions in any year in which this program is in effect.

Charter school national level means, with respect to an applicant's dissemination strategy, that the strategy covers a wide variety of charter schools, authorized public chartering agencies, charter support organizations, and other stakeholder groups within multiple States across the country, including rural and urban areas.

Community of practice means a group of stakeholders that interacts regularly to solve a persistent problem or to improve practice in an area that is important to them and the success of the grant project.

Graduation rate means a four-year adjusted cohort graduation rate consistent with 34 CFR 200.19(b)(1) and may also include an extended-year adjusted cohort graduation rate consistent with 34 CFR 200.19(b)(1)(v) if the State in which the proposed project is implemented has been approved by the Secretary to use such a rate under Title I of the ESEA.

High-need students means children and students at risk of educational failure, such as children and students who are living in poverty, who are English Learners, who are far below grade level or who are not on track to becoming college- or career-ready by graduation, who have left school or college before receiving, respectively, a regular high school diploma or a college degree or certificate, who are at risk of not graduating with a diploma on time, who are homeless, who are in foster care, who are pregnant or parenting teenagers, who have been incarcerated, who are new immigrants, who are migrant, or who have disabilities.

High-quality charter school means—

(a) A school that shows evidence of strong academic results for the past three years (or over the life of the school, if the school has been open for fewer than three years), based on the following factors:

(1) Increased student academic achievement and attainment (including, if applicable, high school graduation rates and college and other postsecondary enrollment rates) for all students, including, as applicable, educationally disadvantaged students served by the charter school;

(2) Either:

(i) Demonstrated success in closing historic achievement gaps for the subgroups of students described in section 1111(b)(2)(C)(v)(II) of the ESEA (20 U.S.C. 6311) at the charter school; or

(ii) No significant achievement gaps between any of the subgroups of students described in section 1111 (b)(2)(C)(v)(II) of the ESEA (20 U.S.C. 6311) at the charter school and significant gains in student academic achievement for all populations of students served by the charter school;

(3) Results (including, if applicable and available, performance on statewide tests, annual student attendance and retention rates, high school graduation rates, college and other postsecondary attendance rates, and college and other postsecondary persistence rates) for low-income and other educationally disadvantaged students served by the charter school that are above the average academic achievement results for such students in the State;

(4) Positive results on a performance framework established by the State or authorized public chartering agency for purposes of evaluating charter school quality; and

(5) No significant compliance issues (as defined in this notice), particularly in the areas of student safety, financial management, and equitable and nondiscriminatory treatment for students; or

(b) A high-quality charter school as defined by the State, provided that the State's definition is at least as rigorous as paragraph (a).

Logic model (also referred to as theory of action), as defined in 34 CFR 77.1(c), means a well-specified conceptual framework that identifies key components of the proposed process, product, strategy, or practice (i.e., the active “ingredients” that are hypothesized to be critical to achieving the relevant outcomes) and describes the relationships among the key components and outcomes, theoretically and operationally.

National level, as defined in 34 CFR 77.1(c), describes the level of scope or effectiveness of a process, product, strategy, or practice that is able to be effective in a wide variety of communities, including rural and urban areas, as well as with different groups (e.g., economically disadvantaged, racial and ethnic groups, migrant populations, individuals with disabilities, English learners, and individuals of each gender).

Regional level, as defined in 34 CFR 77.1(c), describes the level of scope or effectiveness of a process, product, strategy, or practice that is able to serve a variety of communities within a State or multiple States, including rural and urban areas, as well as with different groups (e.g., economically disadvantaged, racial and ethnic groups, migrant populations, individuals with disabilities, English learners, and individuals of each gender). For an LEA-based project to be considered a regional-level project, a process, product, strategy, or practice must serve students in more than one LEA, unless the process, product, strategy, or practice is implemented in a State in which the State educational agency is the sole educational agency for all schools.

Relevant outcome, as defined in 34 CFR 77.1(c), means the student outcome(s) (or the ultimate outcome if not related to students) the proposed process, product, strategy, or practice is designed to improve; consistent with the specific goals of a program.

Significant compliance issue means a violation that did, will, or could (if not addressed or if it represents a pattern of repeated misconduct or material non-compliance) lead to the revocation of a school's charter.

Student achievement means—

(a) For tested grades and subjects—

(1) A student's score on the State's assessments under the ESEA; and, as appropriate,

(2) Other measures of student learning, such as those described in paragraph (b) of this definition, provided they are rigorous and comparable across schools.

(b) For non-tested grades and subjects: Alternative measures of student learning and performance, such as student scores on pre-tests and end-of-course tests; student performance on English language proficiency assessments; and other measures of student achievement that are rigorous and comparable across schools.

Student growth means the change in achievement data for an individual student between two or more points in time. Growth may also include other measures that are rigorous and comparable across classrooms.

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

Note:

This notice does not solicit applications. In any year in which we choose to use one or more of these priorities, requirements, and definitions we invite applications through a notice in the Federal Register.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

Paperwork Reduction Act of 1995: The Paperwork Reduction Act of 1995 does not require you to respond to a collection of information unless it displays a valid OMB control number. The collection of information is approved under OMB control number 1855-0026.

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

This document provides early notification of our specific plans and actions for this program. Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to either of the program contact persons listed under FOR FURTHER INFORMATION CONTACT .

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

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

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

On September 15, 2008, June 28, 2010, and August 10, 2011, Idaho made submissions to the EPA demonstrating that the Idaho SIP meets the infrastructure requirements of the CAA for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS. On March 26, 2014, we proposed action on these submissions (79 FR 16711). On April 15, 2014, we made a correction to our proposal because we supplied an incorrect docket number in our proposed action (79 FR 21179). However, any commenter wishing to submit comments did not need to resubmit them, because we routed the comments to the correct docket.

An explanation of the CAA requirements and implementing regulations that are met by these SIP submissions, a detailed explanation of the submissions, and the EPA's reasons for the proposed action were provided in the notice of proposed rulemaking on March 26, 2014, and will not be restated here (79 FR 16711). The public comment period for our proposed action ended on April 25, 2014, and we received one comment.

Comment: We received the following anonymous comment through the www.regulations.gov Web site: “When the EPA can stop all the toxic emissions from the multitudes of volcanos on the earth, then and only then will I give up my wood stove!! You people need to stop telling us how to live. My taxes pay your wages and I think your organization needs to be dismantled!”

Response: Under section 110 of the CAA, states are responsible for developing provisions to address air pollution for incorporation into the SIP. The EPA's role is to evaluate these state choices to determine if the revisions meet the requirements of the CAA. Furthermore, under section 116 of the CAA, states have authority to adopt or enforce standards or requirements for the control or abatement of air pollution (except as specifically limited by the CAA). The EPA must approve state submissions so long as they meet the minimum requirements established by the CAA. Union Electric Co. v. EPA, 427 U.S. 246 (1976). To the extent that the commenter wants to influence these state choices, the comments are best submitted during the state public comment period, rather than as part of the EPA's approval or disapproval process. We have determined that the provisions selected by Idaho for inclusion in its SIP meet the CAA infrastructure requirements for the 1997 and 2006 fine particulate matter and 2008 ozone standards. We provided a copy of the comment to Idaho Department of Environmental Quality for consideration during future state rulemaking, but we are otherwise taking no further action on the comment.

The EPA finds that the Idaho SIP meets the following CAA section 110(a)(2) infrastructure elements for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS: (A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). We also find that the Idaho SIP meets the requirements of CAA section 110(a)(2)(D)(i)(II) as it applies to prevention of significant deterioration and visibility for the 2006 PM 2.5 and 2008 ozone NAAQS. This action is being taken under section 110 of the CAA.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 12, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

40 CFR part 52 is amended as follows:

On February 9, 2010 (75 FR 6474), EPA established a new 1-hour primary NAAQS for NO 2 at a level of 100 parts per billion (ppb), based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS. Specifically, section 110(a)(1) requires states to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe, and section 110(a)(2) requires states to address specific elements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the newly established or revised NAAQS.

The contents of a SIP submission may vary depending upon the data and analytical tools available to the state, as well as the provisions already contained in the state's SIP at the time in which the state develops and submits the submission for a new or revised NAAQS. States were required to submit such SIPs for the 2010 NO 2 NAAQS to EPA no later than January 2013.

On April 15, 2014 (79 FR 21173), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland proposing approval of Maryland's August 14, 2013 submittal to satisfy several requirements of section 110(a)(2) of the CAA for the 2010 NO 2 NAAQS. In the NPR, EPA proposed approval of the following infrastructure elements: Sections 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M), or portions thereof. This action does not include any action on section 110(a)(2)(I) of the CAA which pertains to the nonattainment requirements of part D, Title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of CAA section 110(a)(1), and will be addressed in a separate process if necessary. The rationale which supports EPA's proposed action, including the scope of infrastructure SIPs in general, is explained in the NPR and the technical support document (TSD) accompanying the NPR and will not be restated here. The TSD is available online at www.regulations.gov, Docket ID Number EPA-R03-OAR-2013-0649.

EPA is approving as a revision to the Maryland SIP the following infrastructure elements in Maryland's August 14, 2013 submittal for the 2010 NO 2 NAAQS: Sections 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). This rulemaking action does not include section 110(a)(2)(I) of the CAA which pertains to the nonattainment requirements of part D, Title I of the CAA, since this element is not required to be submitted by the three year submission deadline of section 110(a)(1), and will be addressed in a separate process.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 12, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, addressing infrastructure requirements of section 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M) of the CAA for the 2010 NO 2 NAAQS for the State of Maryland, may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA.

On September 23, 2009, the EPA proposed to disapprove revisions to the SIP submitted by the State of Texas that established the Flexible Permit Program. 74 FR 48480. On July 15, 2010, the EPA took final action by disapproving Texas' Flexible Permit Program. 75 FR 41312.

For a detailed discussion of our rationale for the disapproval see 75 FR 41312 (July 15, 2010). Upon finalization of the rule several parties appealed the decision to the Fifth Circuit Court of Appeals. In July and August of 2010 the State of Texas, Texas Oil & Gas Association (TXOGA), Texas Association of Manufacturers, and Business Coalition for Clean Air (BCCA) Appeal Group all filed petitions with the Fifth Circuit Court of Appeals seeking to overturn the EPA's disapproval of the Flexible Permit Program. During the same time period, the Environmental Defense Fund (EDF) and Environmental Integrity Project (EIP) moved for leave to intervene in support of the EPA's disapproval. Their request to intervene was granted by the Court. While the challenge was pending, the state adopted a modified flexible permits regulation, but did not submit it to the EPA.

On August 13, 2012, the Fifth Circuit Court of Appeals granted the petitioner's review, vacated our disapproval of the Texas Flexible Permit Program and remanded the matter back to the EPA for further review. After the Court remanded the Flexible Permit Rule to the EPA, the State, in a letter dated September 12, 2012, requested that we take action on the original Flexible Permit Program submittal package in accordance with the ruling of the Fifth Circuit Court of Appeals. Following discussions with the EPA, on September 24, 2013, Texas formally adopted and approved this SIP revision which is comprised of the original submittal that the EPA took its disapproval action on as well as rule additions agreed upon between the TCEQ and the EPA that the EPA finds are essential to the program's approvability.

On October 21, 2013, Texas formally submitted to the EPA this final revision to the SIP. The TCEQ also identified in the Flexible Permits Program SIP submittal cover letter, several sections of previous SIP submittals that are withdrawn from the EPA's consideration as revisions to the Texas SIP. Accordingly, the EPA recognizes the following sections as withdrawn by the State and no longer before us for review or action:

• 30 TAC Section 116.711(3) (last sentence only) and (11), as amended August 21, 2002, and all earlier versions withdrawn October 21, 2013.

• Adopted revisions submitted October 21, 2013. 30 TAC Section 116.715(a), only with regard to the text “or Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA Section 112(g), 40 CFR Part 63))”, as amended August 21, 2002, and all earlier versions withdrawn on October 21, 2013.

• 30 TAC Section 116.715(c)(6) as amended August 20, 2003, and all earlier versions withdrawn October 21, 2013. 30 TAC Section 116.716(a) and (d), as adopted November 16, 1994, withdrawn October 21, 2013.

• 30 TAC Section 116.730 adopted November 16, 1994, and repealed and readopted June 17, 1998.

• 30 TAC Section 116.740(b), adopted June 17, 1998, and amended September 2, 1999, withdrawn October 21, 2013. 30 TAC Section 116.803, adopted August 21, 2002, withdrawn October 21, 2013.

The EPA is today conditionally approving the October 21, 2013, submittal. The October 21, 2013, submittal, including the Texas Order of the Commission adopting the SIP revision dated September 26, 2013, and the accompanying cover letter (available in the docket for this rulemaking), essentially resubmits all relevant portions of the prior Flexible Permits submittals and therefore constitutes the entire Flexible Permit Program. The EPA issued a notice proposing conditional approval. 79 FR 8368 (Feb. 12, 2014).

The EPA originally proposed a comment period of 30 days but extended the comment period an additional 21 days after receiving a request from EIP on February 28, 2014. This extension provided a total of 51 days for comment, through April 4, 2014. We received comments from 5 organizations as follows: the TCEQ, the TXOGA, the Texas Industry Project (TIP), the BCCA and the EIP on behalf of the Public Citizen's Texas Office, Air Alliance Houston, Environment Texas, Texas Campaign for the Environment, and the Sierra Club. All comment letters can be found in their entirety in the docket for this rulemaking. The following section summarizes the comments received and provides responses to each. Note that comments are grouped together into categories to assist the reader.

Comment 1: TXOGA stated that their members support the EPA's February 12, 2014, proposed conditional approval of the Texas Flexible Permit Rules as revisions to the Texas SIP. The BCCA and the TIP also expressed support of the EPA's proposed conditional approval of the Flexible Permit Program. TXOGA stated they believe the rule will help provide certainty in the air permitting process for Texas industry and continued compliance with the Federal CAA.

Response 1: The EPA appreciates the support for our proposed conditional approval. No changes were made to the final rule as a result of this comment.

Comment 2: The TCEQ supports the EPA's February 12, 2014, proposed conditional approval of the Texas Flexible Permit Rules as revisions to the Texas SIP. The TCEQ informed the EPA that on February 12, 2014, rule amendments were proposed to ensure that the text and organization of the Flexible Permit Program rules include only what is in the 2013 submittal, as well as some updated non-substantive rule text adopted in 2010. These non-substantive amendments were adopted to clarify the Flexible Permit Program and do not materially alter the Flexible Permit Program. Based on the issues litigated after the EPA's disapproval of the Flexible Permit Program rules on July 15, 2010, some of the rule amendments adopted on December 14, 2010, are not necessary for the EPA approval of the Flexible Permit Program and thus are currently proposed for repeal. The TCEQ's rulemaking is expected to fulfill the terms of the conditional approval and allow the EPA to adopt the Flexible Permit Program rules in full as a SIP revision, which will resolve the outstanding issues with regard to this Minor NSR program. Specifically, the amendments proposed by the TCEQ on February 12, 2014, regarding the following rules: 30 TAC Sections 116.13, 116.710, 116.711, 116.715, 116.716, 116.717, 116.718, 116.721, and 116.765. Of these, 30 TAC Sections 116.13; 116.710; 116.711(1), (2)(A), (B) and (C)(i) and (ii), (D)-(J), and (L)-(N); 116.715(a)-(e) and (f)(1) and (2)(B); 116.716; 116.717; 116.718; 116.721; and 116.765, will be submitted to the EPA as revisions to the Texas SIP. In addition to the re-submittal of rules adopted in 1994-2003 for the Flexible Permit Program, the 2013 SIP submittal included certain rule changes adopted by the commission in 2010 that help clarify the rules. These 2010 amendments included changes in rule format as well as some revised and additional text. The TCEQ does not consider these changes as material alterations to the program, nor was the text specifically related to the primary issues in the litigation regarding the EPA's disapproval of the Flexible Permit Program in 2010.

Response 2: The EPA agrees with the TCEQ's assessment of the scope of this approval action. The EPA appreciates the support for our proposed conditional approval. No changes were made to the final rule as a result of this comment.

Comment 3: The BCCA and the TIP request that the regulation become effective on the day of the Federal Register publication. In addition, TXOGA requested that the EPA finalize the conditional approval as soon as possible so the program will be a federally approved part of the Texas SIP and make the approval effective on the day of publication. These requests are based on the exceptions to the requirement for a 30 day delay in the effective date provided for in the Administrative Procedure Act (APA). The commenters state that “EPA may properly find good cause because an immediately effective conditional approval would provide economic benefits by giving certainty to the flexible permits issued by TCEQ pursuant to the program.” This group of commenters further states “Texas first submitted the program to EPA in 1994 and issued approximately 140 flexible permits under the terms of the program. Thus, an immediately effective conditional approval of the Flexible Permit Program will have the effect of granting or recognizing an exemption or relieving a restriction imposed by the existing program.”

Response 3: The EPA has reviewed the request to make the rule immediately effective. The APA requires a 30 day delayed effective date unless the rule qualifies for a statutory exception. We do not agree that this rule qualifies for such an exception and therefore the rule will become effective 30 days after publication.

The commenters argue that approval of the rule will make the program a federally approved part of the SIP, providing certainty and economic benefits to the regulated community. To the extent that this is true, it is true of all SIP approvals, and provides no unique basis for making this SIP approval immediately effective. The commenters also appear to be suggesting that approval of this rule will make all previously-issued Texas flexible permits federally approved. Thus, the commenters point to the 140 permits that have already been “issued by TCEQ pursuant to the program,”  1 and assert that today's approval “will have the effect of granting or recognizing an exemption or relieving a restriction imposed by the existing program.” In sum, the commenters appear to be implying that this approval will transform state-only flexible permits issued since 1994 into federally approved permits upon the effective date of this rule. This is not the case and the EPA strongly rejects any suggestion to the contrary,

The state established and submitted for EPA approval a Flexible Permit Program in 1994. As described in detail below, the Flexible Permit Program we are conditionally approving today consists of 18 revisions to the Texas Administrative Code presented to the EPA in 7 submittals between 1994 and 2013 and contains new provisions that were never in any earlier version of the Flexible Permit Program submitted to the EPA. Those provisions could not have been used as a legal basis for establishing terms and conditions of state-only permits issued in the 1990s. Because those permits were not issued under the regulations that we are approving today, there can be no assurance that the state-only permits fully comply with all elements of the Flexible Permits Program we are approving today. Accordingly, today's action cannot make those state-only permits federally approved unless and until a permit is reissued under the authority of the program being approved today with terms and conditions defined by that program.

In sum, therefore, the EPA finds no basis for making the rule effective immediately, and no changes were made to the final rule as a result of this comment.

Comment 4: The BCCA and the TIP request that the EPA confirm that a final conditional approval means that the rule is federally approved and that the enforceability is not deferred until the State's satisfaction of the commitment.

Response 4: The EPA agrees and confirms that the final conditional approval means that the rule is federally approved on the effective date of this Federal Register notice. A discussion in 71 FR 52703 at 52704, September 6, 2006, outlines the protocol regarding implementation of a conditional approval. In general, a conditional approval remains in effect (and therefore enforceable) until the EPA takes its final action that the rule is ultimately approvable or is not approvable dependent upon whether the State has met its commitments.

Comments 5-9 Summary: The EIP made several comments that effectively argue in various ways that the Flexible Permit Program can be used to authorize major source construction or modification that should be subject to Prevention of Significant Deterioration (PSD) or Non-attainment New Source Review (NNSR). The EPA summarizes and responds individually and in detail, but also wishes to introduce that discussion by explaining the basis for its overarching conclusion that the Flexible Permit Program cannot be used to authorize major source construction or modification. The EPA rejects any suggestion that the Flexible Permit Program will allow circumvention of Major NSR requirements. The EPA wants to be clear on this point both to the public and future permittees. This is a Minor NSR program. The Fifth Circuit Court of Appeals reviewed the Flexible Permit Program, and concluded that it could not be used to authorize construction or modification that should be subject to the requirements of the major source NNSR or PSD programs: “The Flexible Permit Program does not allow Major NSR evasion because it affirmatively requires compliance with Major NSR.” Texas v. EPA, 690 F.3d 670, 678 (Fifth Cir. 2012). The TCEQ clearly states this in their guidance and the EPA today is approving the Flexible Permit Program only as a Minor NSR program. Permittees who use this Minor NSR program to circumvent Major NSR are violating the approved Texas SIP. We believe that the revised Flexible Permit Program we are conditionally approving today meets the requirement of the CAA, our Minor NSR rules and the Fifth Circuit's interpretation of both. If the permit program is used in ways to circumvent Major NSR, those actions would be violations. While it does not impact program approval, it is related to enforcement and implementation.

As explained in our proposed conditional approval at 79 FR 8368, 8380, February 12, 2014, the Texas rules as submitted October 21, 2013, and found in 30 TAC Sections 116.711(H) & (I) require that all flexible permit applications contain information demonstrating that each facility complies with PSD and NNSR requirements.

Comment 5: The EIP commented that Flexible Permit changes may be made without evaluating Major NSR applicability.

Response 5: The EPA disagrees with the commenter's assertion regarding a permittee's responsibilities to make changes in accordance with Major NSR permitting requirements. As noted, the Texas rules as submitted October 21, 2013, and found in 30 TAC Sections 116.711(H) & (I)  2 require that all flexible permit applications contain information for each facility  3 demonstrating compliance with Prevention of Significant Deterioration (PSD) and non-attainment new source review (NNSR) requirements. Further, the facilities (units) covered under a flexible permit cap are created in accordance with 30 TAC Section 116.716(c), which requires compliance with all PSD and NNSR requirements for applicable facilities (units) subject to major BACT and LAER requirements up to the permit limit on potential to emit. Those individual facilities that are not subject to major BACT or LAER as defined in 30 TAC Section 116.10 are calculated based on expected maximum capacity (i.e., potential to emit). The calculated emission levels for all facilities (units) are then summed, and capped and the total is analyzed to ensure compliance with NAAQS requirements. If changes are made to the stationary source that vary from the permit application representations, the applicant is required to amend or alter the flexible permit in accordance with procedures set out in 30 TAC Section 116.721, which are analogous to already SIP approved rules regarding changes found in Subchapter B, 30 TAC Section 116.116. However, emission “flexibility” between “facilities” (units) is allowed under the cap as long as operations are consistent with permit application representations and individual, applicable BACT and LAER requirements for each individual affected major PSD and LAER facility (unit) are met. No changes have been made to the final rule as a result of this comment.

Comment 6: The EIP commented that flexible permits improperly tie Major NSR applicability requirements to increases in allowable emissions.

Response 6: The EPA disagrees with the commenter's assertion that Major NSR applicability is determined based on allowable emission increases. All sources must submit a permit application for an amendment or alteration when changes are made at the source that vary from existing application representations. Changes meeting the criteria resulting in the need for PSD and NNSR review require each facility (unit) to comply with all applicable requirements as stated in accordance with 30 TAC Sections 116.711(H) & (I). The TCEQ PSD regulations are already SIP approved and require a stationary source to analyze emission increases based on actual emissions as stated in PSD requirements found in 30 TAC Section 116.160(c). The TCEQ defines project netting in 30 TAC Section 116.12(28) as “The sum of the following: the project emissions increase, minus any source-wide creditable emission decreases proposed at the source between the date of application for the modification and the date the resultant modification begins emitting. Baseline actual emissions shall be used to determine emissions increases and decreases. Increases and decreases must meet the creditability criteria listed under the definition of net emissions increase in this section.” No changes have been made to the final rule as a result of this comment.

Comment 7: The EIP commented that flexible permit caps exceed baseline actual emissions.

Response 7: The EPA agrees that flexible permit caps, when established, can exceed baseline actual emissions for the facilities (units) the cap will cover. The rules at 30 TAC Section 116.716(c) define how a flexible permit cap is established. There are no federal guidelines that prohibit developing a flexible permit cap for a Minor NSR permit action using “potential to emit” emission thresholds provided the emission values, as represented in the permit application and used in establishing a cap limit, are fully evaluated for potential NAAQS violations and NSR permitting requirements in the initial permit action. A Minor NSR flexible permit cap is not a Plantwide Applicability Limit (PAL). PALs covering all facilities (units) at a stationary source, both major and minor, are to be based on each individual baseline actual emission for each individual facility (unit).

A grouping of facilities (units) for which flexibility is desired is determined by the permit applicant. Provided there are no deviations from the application representations and the emission increases do not exceed significant threshold categories for Major PSD and NNSR requirements, the permittee is afforded some flexibility in how compliance with the flexible permit cap emission limitations are met. In any case, any facility (unit) also subject to individual BACT emission limitations must always demonstrate compliance with that emission limitation as well. (See Response No. 6 above for a discussion of how emission caps must be established.)

Regarding the eight permit examples provided by EIP in Attachment A, all sources cited must submit permit applications for amendments or alterations in accordance with 30 TAC Section 116.721 if, and when changes are made at the source that vary from existing application representations. Those modification requirements are analogous to already SIP-approved rules found in 30 TAC Section 116.116. No changes have been made to the final rule as a result of this comment.

Comment 8: The EIP commented that the TCEQ has issued flexible permits that are virtually unlimited in scope.

Response 8: The EPA agrees that some of the State-only flexible permits initially issued under the state Flexible Permit Program that was not SIP-approved may not have met Clean Air Act requirements. See EPA's Fair Notice Letter dated September 25, 2007, to flexible permit holders in Texas and signed by John Blevins, Director, Compliance Assurance and Enforcement Division, EPA Region 6. However, the revised rules upon which this final conditional approval action is being taken do limit the scope of how stationary sources will be permitted to use flexible permit caps. These rules will ensure practicable enforceability of Clean Air Act requirements. The rules contain specialized monitoring, recordkeeping, and reporting elements. Specifically 30 TAC Section 116.715(c)(5)(A) requires each flexible permit to specify requirements for monitoring or demonstrating compliance with emission caps and individual emission limits in the flexible permit. Further, amended rule 30 TAC Section 116.715(c)(5)(B) requires each flexible permit to specify emission calculation methods for calculating annual and short term emissions for each pollutant. In addition, 30 TAC Section 116.715(d)(1) specifies that a flexible permit include specific monitoring, recordkeeping, and reporting conditions in flexible permits as appropriate for the type of facilities and emissions authorized under a cap. Compliance with the cap will be based on a 12 month rolling average to ensure continuous compliance. No changes have been made to the rule as a result of this comment.

Comment 9: The EIP commented that Texas' flexible permit rules indicate that flexible permits may be used to eliminate major NSR permit requirements.

Response 9: The EPA disagrees with the commenter's assertion. As explained previously, this is a Minor NSR program. The rules contain a provision found in 30 TAC Section 116.711(2)(M)(vii) which specifies that a flexible permit application must identify any terms, conditions, and representations in any Subchapter B (i.e., Major NSR) permit which will be superseded by or incorporated under a flexible permit and an analysis of how the conditions and control requirements of a subchapter B permit will be carried forward in the proposed flexible permit. Further 30 TAC Sections 116.716(c), 116.716(d), and 116.716(e) specify how to calculate an emission cap and how to handle individual emission limitations. In addition, these rules identify the facilities (units) subject to an emission cap, and outline that the permit shall clearly identify the facilities (units) subject to the emission cap so that those facilities (units) subject to Major PSD and NNSR requirements ensure compliance with major source BACT and LAER. No changes have been made to the rule as a result of this comment.

Comment 10: The EIP commented that flexible permit BACT requirements are not sufficiently stringent.

Response 10: The EPA disagrees regarding the stringency of the flexible permit control technology requirements. The Flexible Permit Program has been determined to be a Minor NSR program and the Clean Air Act does not require that minor sources employ any particular control technology. Activities made under a Flexible Permit must meet the emission control requirements for a Minor NSR program as found in 30 TAC Section 116.711(2)(C). However, for any facility (unit) that is subject to Major NSR permitting requirements, i.e., PSD, the rules contain safeguards as discussed above in Responses 5 and 9 to ensure Major NSR source BACT and LAER requirements are followed. No changes have been made to the rule as a result of this comment.

Comment 11: The EIP commented that flexible permit limits are not enforceable as a practical matter.

Response 11: The EPA disagrees with the commenter's assertion regarding enforceability of permit conditions. Information provided in Response 8 describes the requirements that flexible permits contain sufficient monitoring, recordkeeping, and reporting to demonstrate compliance. In addition, revised 30 TAC 116.715(c)(5) also states that each flexible permit specify requirements for monitoring or demonstrating compliance with emission caps and individual emission limits in the flexible permit and that each flexible permit shall specify methods for calculating annual and short term emissions for each pollutant for a given type of facility (unit). No changes have been made to the rule as a result of this comment.

Comment 12: The TCEQ commented that the EPA's discussion at Section II (last paragraph, 79, Federal Register 8373-8374) references 30 TAC Section 116.717 regarding adjustment of an emission cap but should most likely reference 30 TAC Section 116.715(c)(9).

Response 12: The EPA agrees with the TCEQ's comment that the incorrect citation was referenced in the February 12, 2014, Federal Register proposal. The correct citation is 30 TAC Section 116.715(c)(9).

The EPA has determined that today's final conditional approval of the Texas Flexible Permit Program is subject to the requirement to delay a rule's effective date until 30 days after publication in 5 U.S.C. 553(d) of the APA; therefore, the rule will become effective 30 days after publication.

• After careful consideration of the comments received and the responses to each comment provided above, and section 110 of the Act, the EPA is finalizing our conditional approval of the following revisions to the Texas SIP. In this final conditional approval we are revising the table at 40 CFR 52.2270(c) to reflect the approval of the following regulations into the Texas SIP: Revisions to 30 TAC Sections 39.402(a)(4) and (a)(5)—Applicability to applications for new and amended Flexible Permits—submitted July 2, 2010.

• Revisions to 30 TAC Section 116.10—General Definitions—submitted March 13, 1996; Repealed, adopted and submitted July 22, 1998; Redesignated and submitted October 4, 2002; Amended 116.10(9)(E)—submitted October 5, 2010.

• Revisions to 30 TAC Section 116.13—Flexible Permit Definitions—submitted November 29, 1994; Repealed, adopted and submitted July 22, 1998; Adopted revisions submitted October 21, 2013.

• Revisions to 30 TAC Section 116.110—Applicability—submitted November 29, 1994; Section 116.110(a)(3) Repealed, adopted and submitted July 22, 1998.

• Revisions to 30 TAC Section 116.710—Applicability—submitted November 29, 1994; Revised and submitted July 22, 1998; Revised and submitted September 11, 2000.

• Revisions to 30 TAC Section 116.711—Flexible Permit Application—submitted November 29, 1994; revised and submitted July 22, 1998; Added, redesignated and submitted April 12, 2001; Designated, added, revised and submitted September 4, 2002; and Adopted revisions submitted October 21, 2013.

• Revisions to 30 TAC Section 116.714—Application Review Schedule—submitted November 29, 1994; Revised and submitted July 22, 1998.

• Revisions to 30 TAC Section 116.715-General and Special Conditions—submitted November 29, 1994; Revised and submitted July 22, 1998; Revised and submitted September 11, 2000; Revised and submitted April 12, 2001; Revised and submitted September 4, 2002; Revised and submitted September 25, 2003.

• Revisions to 30 TAC Section 116.716—Emission Caps and Individual Emission Limitations—submitted November 29, 1994; and Adopted revisions submitted October 21, 2013.

• Revisions to 30 TAC Section 116.717—Implementation Schedule for Additional Controls—submitted November 29, 1994.

• Revisions to 30 TAC Section 116.718—Significant Emission Increase—submitted November 29, 1994.

• Revisions to 30 TAC Section 116.720—Limitation on Physical and Operational Changes—submitted November 29, 1994.

• Revisions to 30 TAC Section 116.721—Amendments and Alterations—submitted November 29, 1994; Revised and submitted July 22, 1998; Revised and submitted September 11, 2000.

• Revisions to 30 TAC Section 116.722—Distance Limitations—submitted November 29, 1994; Revised and submitted September 11, 2000.

• 30 TAC Section 116.730—Compliance History—submitted November 29, 1994; Withdrawn October 21, 2013.

• Revisions to 30 TAC Section 116.740(a)—Public Notice and Comment—submitted November 29, 1994; Designated, added and submitted July 22, 1998; Revised and submitted October 25, 1999; and Adopted revisions submitted October 21, 2013.

• Revisions to 30 TAC Section 116.750—Flexible Permit Fee—submitted November 29, 1994; Revised and submitted July 22, 1998; Revised and submitted September 11, 2000; Revised and submitted October 4, 2002; and Adopted revisions submitted October 21, 2013.

• Revisions to 30 TAC Section 116.760 Flexible Permit Renewal—submitted November 29, 1994.

• Revisions to 30 TAC Section 116.765—Compliance Schedule—submitted October 21, 2013.

The EPA is also approving the December 9, 2013, Interpretative Letter into the Texas SIP and will revise the table at 40 CFR 52.2270(e) to reflect this approval.

The EPA is conditionally approving the Flexible Permit Program into the Texas SIP. This is predicated on a commitment, as outlined in the December 9, 2013 Commitment Letter from the State, to adopt certain minor clarifications to the Flexible Permit Program by November 30, 2014, well within the one-year time limit in the statute. By taking our final action today, the Flexible Permit Program for the first time becomes an approved and thus a federally approved enforceable requirement in the Texas State Implementation Plan.

Upon receipt of the revised Flexible Permits Program as a revision to the Texas SIP, the EPA will evaluate it pursuant to our responsibilities under CAA section 110(k). If the EPA determines that the revised rule satisfies the December 9, 2013, Commitment Letter and was submitted in a timely manner, the EPA will provide notice in the Federal Register proposing to convert the conditional approval into a full approval in the Texas SIP. However, if the State fails to submit a SIP satisfying the commitments by the identified deadline, or if the EPA determines that the submitted SIP revision does not address the commitments, then the conditional approval will become a disapproval and the EPA will send a letter notifying the State that the SIP is disapproved. Because the Flexible Permit Program is discretionary and was not submitted to address a mandatory requirement of the Act, disapproval of the program will not trigger sanctions under Section 179(b) or start a Federal Implementation Plan clock.

As a result of our final conditional approval, and the associated revisions to 40 CFR 52.2270(c) and (e), EPA is also revising 40 CFR 52.2273 to remove paragraphs (c)(1)-(c)(3).

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 12, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposed of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2) CAA.)

40 CFR part 52 is amended as follows:

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

This action applies only to the adjusted standard for VOM granted to Royal for the facility in Dix, Illinois (Jefferson County). This action is only a name change to reflect that the facility is now owned by Latham Pool Products, Inc., d/b/a Viking Pools. No increases in emissions at the facility are allowed by this action.

The Illinois Pollution Control Board (IPCB) granted the administrative change at a quarterly meeting which was open to the public. Prior to the meeting, public notice was given that the meeting was being held and an agenda with actions to be considered was posted on the IPCB Web site. Public notice of the administrative change was posted on the Web site and the subsequent board meeting open to the public was held on September 5, 2013, prior to the administrative order going into effect.

Latham Pool Products, Inc., d/b/a Viking Pools, owns and operates a fiberglass pool manufacturing facility in the city of Dix, Illinois that was formerly owned and operated by Royal. The facility is used to manufacture fiberglass pools and emits VOM.

EPA approved the adjusted standard into the Illinois SIP on June 27, 2011 (76 FR 37272). The adjusted standard removed the 8 lb/hr VOM limit for Royal's fiberglass facility in Dix, Illinois. Although Royal was not required to comply with the 8 lb/hr rule, Royal was required to operate its facility in compliance with the National Emissions Standards for Hazardous Air Pollutants (NESHAP) for Reinforced Plastic Composites Production at 40 CFR part 63, subpart WWWW.

EPA is approving this name change as solely an administrative change, which does not allow for any change in the emission limits for VOM, work practice standards or any other requirements in the NESHAP at 40 CFR part 63, subpart WWWW, or any other applicable Federal, state and local laws, regulations and permits.

To reflect the change in ownership, the state has requested that EPA replace the name of the holder of the adjusted standard currently in the Illinois SIP from Royal to Latham Pool Products, Inc., d/b/a Viking Pools.

EPA is approving a revision to the Illinois SIP to substitute Latham Pool Products, Inc., d/b/a Viking Pools, as the holder of the adjusted standard for VOM that EPA previously approved into the SIP for Royal. This revision does not change any of the VOM control requirements and will not result in an increase in VOM emissions because no emission limits were increased.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective September 12, 2014 without further notice unless we receive relevant adverse written comments by September 12, 2014. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective September 12, 2014.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 12, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document, “we,” “us,” and “our” refer to EPA.

Table 1 lists the rule rescissions we are approving with the dates that they were rescinded by the local air agencies and submitted by the California Air Resources Board.

On April 8, 2014 EPA determined that the submittal to rescind PCAPCD rules 229 and 230 met the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.

On November 18, 1998, the submittal to rescind SCAQMD Rule 1110 was deemed by operation of law to meet the completeness criteria in 40 CFR Part 51 Appendix V.

VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control VOC emissions. PCAPCD Rules 229 and 230 were originally adopted because two sources, SierraPine addressed by Rule 229, and Formica addressed by Rule 230, were emitting significant VOCs. Both sources are no longer operating in PCAPCD, so there is no longer need for these rules in PCAPCD's local rulebook or the SIP. EPA's technical support document (TSD) has more information about these rule rescissions.

Nitrogen oxides (NO X ) help produce ground-level ozone, smog and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control NO X emissions. SCAQMD Rule 1110, Emissions From Stationary Internal Combustion Engines (Demonstration) was adopted to collect emission data which SCAQMD later used to develop SCAQMD Rule 1110.1—Emissions From Stationary Internal Combustion Engines, which established emission controls on certain engines. Rule 1110 required owners and/or operators of more than 5,000 total installed rated brake horsepower of existing engines to participate in a program to demonstrate the effectiveness of methods for the reduction of NO X emissions. Rule 1110 was repealed by SCAQMD because it was a demonstration program that has been completed. Therefore, the rule's provisions are no longer applicable. EPA's TSD has more information about this rule.

These rules describe requirements intended to help control VOC emissions from fiberboard manufacturing, and plastic products and materials—paper treating operations in PCAPCD, and NO X emission data from stationary internal combustion engines used in demonstrating NO X emissions in SCAQMD. These rule rescissions must not relax existing requirements consistent with CAA sections 110(l) and 193. EPA policy that we used to evaluate these rule revisions includes “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).

The Districts have requested rule rescissions because they no longer have any sources subject to these rules, they do not expect any new sources in the future, and any new sources would be subject to restrictive New Source Review permitting requirements. Therefore, we believe these rule rescissions are consistent with relevant policy and guidance.

Because these are rescissions, there are no recommendations to improve the rules.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rule rescissions because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by August 13, 2014, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on September 12, 2014. This will incorporate these rule rescissions into the federally enforceable SIP.

Please note that if EPA receives adverse comments on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 12, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

This is a summary of the Commission's Order and Second Memorandum Opinion and Order, ET Docket No. 03-201, FCC 1480, adopted June 9, 2014 and released June 10, 2014. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW., Washington, DC 20554. The complete text of this document also 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: www.fcc.gov. People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

1. By this Order, the Commission terminates the above-captioned proceeding on unlicensed transmitter operations. The only substantive issues pending in this proceeding concern whether to adopt a specific “spectrum etiquette” requirement for unlicensed transmitters operating in the 902-928 MHz band, and whether there might be need for a similar requirement with respect to unlicensed operations in the 2.4 GHz and 5.8 GHz bands. Based on the record before us, and considering that the Commission has not received additional requests in recent years advocating the need for a spectrum etiquette requirement for unlicensed operations in these bands, the Commission concludes that adoption of such a requirement in these bands does not merit further evaluation at this time. In terminating this proceeding, the Commission also dismissed a pending petition for reconsideration.

2. Part 15 of the Commission's rules governs the operation of unlicensed radiofrequency devices, including the technical requirements for their use. As a general condition of operation, part 15 devices may not cause harmful interference to authorized radio services and must accept any interference that they receive.

3. In 2003, the Commission initiated a Notice of Proposed Rulemaking in this proceeding to review and update certain sections of parts 2 and 15 of our rules pertaining to technical parameters and measurement procedures related to unlicensed device operations in the 902-928 MHz band, the 2.4 GHz band, and the 5.8 GHz band. The Commission also invited comment on whether it should consider any methods to ensure efficient spectrum usage by unlicensed devices, including the “spectrum etiquette” sharing conditions developed by the industry for the operation of unlicensed Personal Communications Service (PCS) devices operating in the 1920-1930 MHz band. A spectrum etiquette establishes a set of steps and protocols that a device must follow before it may access the spectrum. Such an etiquette may require that a device monitor the spectrum in which it intends to operate and begin transmission only if no signal above a specified threshold is detected.

4. In July 2004, the Commission adopted a Report and Order, that modified several rules pertaining to these bands. The Commission, however, declined to impose any type of spectrum etiquette for any Part 15 bands. The Commission noted that most commenting parties had asserted that a spectrum etiquette requirement would tend to limit development of unlicensed operations. It also expressed concern that an etiquette requirement applying only to new devices in these heavily used unlicensed bands may not be useful in facilitating spectrum sharing if the large number of devices already authorized and used in the band were not required to follow the etiquette. The Commission also noted that the then-existing regulations, which did not require a spectrum etiquette, had resulted in very efficient use of unlicensed spectrum.

5. MO&O and Further Notice. In June 2007, the Commission issued its MO&O and Further Notice, which addressed Cellnet's petition and the spectrum etiquette issue. The Commission dismissed Cellnet's petition on the grounds that the petition and Cellnet's subsequent filings did not satisfy the Commission's rules for specific relief and timeliness; it noted that not until a 2006 ex parte presentation, filed over a year past the reconsideration period, did Cellnet describe a specific spectrum etiquette that it believed the Commission should require for digitally modulated spread spectrum transmitters operating in the 902-928 MHz band under § 15.247 of the rules.

6. While the Commission focused the further notice on a spectrum etiquette that would apply only to the 902-928 MHz band, the Commission also inquired generally about whether there might be a similar need to adopt rules for unlicensed devices in the 2.4 GHz and 5.8 GHz bands. The Commission stated, however, that industry standards were being developed to facilitate sharing in these bands and that it did not intend to disrupt this process.

7. The Commission is not persuaded of the need to adopt a spectrum etiquette requirement for unlicensed operations in the 902-928 MHz band. In addition to the record before us, subsequent developments concerning unlicensed operations in the 902-928 MHz band also counsel against adoption of a spectrum etiquette requirement.

8. Since June 2007, the Commission has approved more than 2,500 unlicensed devices operating in the 902-928 MHz band. This indicates that the band continues to be heavily used under the existing rules for unlicensed operations. The Commission observes that manufacturers have developed a wide variety of different types of products under the current part 15 rules. Consistent with the Commission's decision in 2004 not to adopt an etiquette requirement, it is not concerned that adoption of such a requirement could impede design flexibility and innovation of a wide variety of devices that the current rules enable. In declining to adopt a spectrum etiquette requirement, the Commission also notes that manufacturers and users of part 15 devices can and do take various steps when designing and deploying their equipment to promote the effective and efficient sharing between digitally modulated devices and other part 15 devices that operate in the 902-928 MHz band. For example, devices can tune to less congested frequencies or hop to a number of different frequencies to avoid interference. In addition, device operators can reduce the separation distance between the transmitter and receiver in areas where the 902-928 MHz spectrum is heavily used.

9. The Commission agrees with commenters who argued that the large number of existing devices in the 902-928 MHz band would limit the usefulness of a new etiquette since previously approved devices would not be required to comply with an etiquette. Also, no party described an etiquette that would be compatible with all types of devices that currently operate in the band. Further, as a number of commenters noted, an etiquette could potentially stifle innovation or preclude the use of certain types of devices in the 902-928 MHz band.

10. The Commission focused the further notice on whether it should adopt a spectrum etiquette requirement for unlicensed operations in the 902-928 MHz band; only a few commenters commented on a spectrum etiquette requirement in either the 2.4 GHz or 5.8 GHz bands. The Commissions agrees that there is no need for an etiquette in these bands.

11. The record before us does not establish the need for a spectrum etiquette requirement in the 902-928 MHz band. Nor is there any basis before us that establishes a need for adoption of a spectrum etiquette requirement for either the 2.4 GHz band or 5.8 GHz band. The Commission concludes that adoption of this type of requirement in these bands would not serve the public interest at this time.

12. The 2004 Report and Order in this proceeding made several changes to part 15 of the rules regarding unlicensed operations in the 902-928 MHz band, the 2.4 GHz band, and the 5.8 GHz band. In 2004, Warren C. Havens and Telesaurus Holdings GB LLC (Havens), which are licensees in the Multilateration Location and Monitoring Service (M-LMS) in portions of the 902-928 MHz band, filed a petition for reconsideration of that order. Havens requested that the Commission suspend the rule changes adopted for unlicensed devices for operation in the 902-928 MHz band until such time as the Commission commenced and completed a formal inquiry, including notice and comment, with regard to the potential effect of such changes to M-LMS licensees that operate in portions of the band. Havens claimed that the revised part 15 rules would lead to increased spectrum use of the 902-928 MHz band by unlicensed devices and thus would adversely affect M-LMS systems by changing the “regulatory coexistence” between part 15 and M-LMS operations. Havens asserted that the Commission should have made no changes in the part 15 rules regarding with 902-928 MHz band without a rulemaking on part 90 M-LMS rules.

13. In the 2007 MO&O and Further Notice, the Commission dismissed the Havens petition, declining to suspend the part 15 rule changes. The Commission first noted that Havens did not raise any objections to any proposals for revising part 15 rules in the Notice of Proposed Rulemaking prior to the filing of the Havens petition. The Commission explained that, pursuant to § 1.429(b) of its rules, a petition for reconsideration that relies on facts not previously presented to the Commission will be granted only if: (1) The facts relied on relate to events which have occurred or circumstances which have changed since the last opportunity to present them to the Commission; (2) the facts relied upon were unknown to the petitioner until after his last opportunity to present them to the Commission, and he could not through the exercise of due diligence have learned of the facts in question prior to such opportunity; or (3) the Commission determines that consideration of the facts relied on is required in the public interest. The Commission concluded that Havens failed to address why it did not previously participate in this proceeding or claim that any of these three conditions were met. In addition, the Commission noted that § 1.429(c) of the Commission rules require that a petition for reconsideration state with particularity the respects in which the petitioner believes the action taken should be changed. The Commission pointed out that Havens did not identify the particular rule changes that should be suspended, and instead provided only a mere statement of belief that the part 15 rule changes in this proceeding would lead to increased use of part 15 devices in the 902-928 MHz band and thus would result in adverse effects on M-LMS operations that also operate in the portions of the band. The Commission found that Havens had provided no evidence or analysis to support this assertion. The Commission also noted that Havens had raised essentially the same arguments in its petition for reconsideration in ET Docket No. 99-231 concerning changes to the part 15 rules for spread spectrum devices, which the Commission had rejected in that proceeding. Accordingly, the Commission dismissed the Havens petition.

14. The Commission also noted that a proceeding had been initiated in 2006 to reexamine the rules for the M-LMS operating in the 902-928 MHz band (WT Docket No. 06-49), and that proceeding had been prompted partly in response to a petition for rulemaking by Progeny LMS, LLC (Progeny), another M-LMS licensee. The Commission stated that the M-LMS proceeding was the appropriate forum for addressing concerns raised by Havens about the M-LMS rules, including the operational relationship between Part 90 M-LMS devices and part 15 unlicensed devices. The Commission also noted that Havens had already participated in the proceeding to consider Progeny's earlier petition for rulemaking.

15. In July 2007, on behalf of Telesaurus, Warren Havens filed a petition for reconsideration of the Commission's dismissal of the Havens petition for reconsideration in the MO&O and Further Notice. Havens asserts that the Commission's decision dismissing the previous Havens petition for reconsideration should be reversed and that the relief that Havens had requested in the previous petition challenging the 2004 Report and Order should now be granted on the basis of the new petition. Havens claims that the 2007 petition for reconsideration is based on “new facts.” The arguments raised by Havens in the petition for reconsideration of the Commission's dismissal of the earlier petition for reconsideration raise no new relevant facts, and do not provide grounds for our reconsideration of the Commission's prior decision dismissing Havens earlier petition. The Commission dismisses the pending Havens petition as repetitious.

16. In dismissing this latest petition, the Commission relies on § 1.429 of the Commission's rules, as had the earlier Commission when dismissing the previous Havens petition for reconsideration in this proceeding. To the extent a petitioner seeks reconsideration of final orders in a rulemaking proceeding, the petitioner may rely on new facts and arguments not previously presented to the Commission. The Commission may grant such a petition only if: (1) The facts relied on relate to events which have occurred or circumstances which have changed since the last opportunity to present them to the Commission; (2) the facts relied upon were unknown to the petitioner until after its last opportunity to present them to the Commission, and it could not through the exercise of due diligence have learned of the facts in question prior to such opportunity; or (3) the Commission determines that consideration of the facts relied on is required in the public interest. The Commission's rules also require that a petition for reconsideration state with particularity the respects in which the petitioner believes the action taken should be changed. Except in circumstances where the Commission has modified rules in response to a petition for reconsideration, a second petition for reconsideration may be dismissed as repetitious.

17. In the pending petition, Havens argues that the Commission erred in 2007 when dismissing the previous petition, and asserts alleged “new facts” as bases for its petition. In particular, Havens repeats arguments made in the earlier petition for reconsideration—namely that the Commission could not properly make any part 15 rule changes applicable to the 902-928 MHz band that were potentially adverse to M-LMS operations without a notice and comment proceeding on M-LMS. Havens again asserts that any rule part 15 rule changes are changes to the M-LMS rules. Havens also reasserts that there was no obligation for Havens to participate earlier in this part 15 proceeding. As for alleged “new facts,” Havens first asserts that the Commission's initiation in 2006 of the proceeding seeking comment on possible changes to the M-LMS rules for operation in the 902-928 MHz band, which could affect part 15 operations in the band, demonstrates the validity of its argument in its petition that the M-LMS rules affect part 15 and vice versa. Havens argues that since this new proceeding occurred following the release of the 2004 Report and Order, this constitutes a new fact. Havens also asserts that the Commission ignored all of the arguments that Havens had raised in response to a 2002 petition by an M-LMS licensee to change rules in 902-928 MHz band, which ultimately led to the Commission's initiation of the 2006 M-LMS rulemaking, and that this constitutes a new fact showing the Commission's prejudice towards Havens (and Telesaurus) and an abrogation of the Commission's duty to be impartial.

18. Havens has not demonstrated any basis for our reconsideration of the Commission's earlier dismissal. The Commission previously concluded that the initial Havens petition for reconsideration was procedurally defective and failed to establish a basis for relief. The so-called “new facts” alleged by Havens, and which are only unsupported assertions, do not constitute the kinds of facts contemplated under § 1.429 that would provide a basis for granting a petition for reconsideration. Further, nothing prevented Havens from participating in the rulemaking that revised part 15 rules in this proceeding. Moreover, Havens did not identify any particular rule that should be changed, nor specify how he would propose revising any particular rule. In addition, the arguments raised in the pending Havens petition for reconsideration are repetitious. For all of these reasons, the Commission dismisses the petition.

19. Finally, as the Commission noted in the MO&O and Further Notice, Havens has had the opportunity to present his concerns relating to potential revisions to the M-LMS rules, including the operational relationship between M-LMS devices and part 15 unlicensed devices, in the M-LMS rulemaking (WT Docket No. 06-49). Havens has been an active participant in that rulemaking.

20. The remaining issues raised in the this proceeding, which concern whether the Commission should adopt a spectrum etiquette requirement for unlicensed transmitters that operate under §§ 15.247 and 15.249 of the rules in the 902-928 MHz band, or possibly also for the 2.4 GHz or 5.8 GHz bands, do not merit further consideration at this time. The Commission also dismisses the pending petition for reconsideration. With these actions, the Commission terminates this proceeding.

21. Pursuant to sections 4(i), 5(c), and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 155(c), and 405(a), and § 1.429 of the Commission's Rules, 47 CFR 1.429, that the Petition for Reconsideration filed by Telesaurus GB LLC on July 23, 2007 IS dismissed.

22. Pursuant to the authority contained in Sections 4(i) and 4(j) of the Communications Act, as amended, 47 U.S.C. 154(i) and (j), that the proceeding in ET Docket No. 03-201 is hereby terminated.

23. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Order and Second Memorandum Opinion and Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

24. The Commission will not send a copy of this Second Memorandum Opinion and Order pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the Commission did not adopt any new rules here.

This is a summary of the Commission's Second Report and Order (Second R&O), WT Docket Nos. 08-166; 08-167; ET Docket No. 10-24; FCC 14-62, adopted May 15, 2014, and released June 2, 2014. The full text of this document is available for inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. Also, it may be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554; the contractor's Web site, http://www.bcpiweb.com ; or by calling (800) 378-3160, facsimile (202) 488-5563, or email FCC@BCPIWEB.com. Copies of the Second R&O also may be obtained via the Commission's Electronic Comment Filing System (ECFS) by entering the docket number WT Docket No. 08-166. Additionally, the complete item is available on the Federal Communications Commission's Web site at http://www.fcc.gov.

1. In this Second R&O, the Commission takes steps to better enable wireless microphone users to provide high quality audio services to serve a wider range of needs. Theatrical productions, concerts, sporting events, conventions and houses of worship all depend on wireless microphones to meet their needs for high quality audio services. The actions the Commission takes shall extend license eligibility to those wireless microphone users who have needs similar to those of existing low power auxiliary stations (LPAS) licensees. Specifically, the Commission expands part 74 license eligibility to include professional sound companies and owners and operators of large venues that routinely use 50 or more wireless microphones, where the use of wireless microphones is an integral part of the major productions or events they host. The Commission concludes that this measured approach strikes an appropriate balance in providing the benefits of a license for entities and events that have a demonstrated need, while ensuring that spectrum is shared effectively with existing LPAS operations and remains available for other uses, including TV white space (TVWS) devices.

2. The actions the Commission takes in this Second R&O to expand license eligibility and protection are only one step to address a range of issues concerning the operation of wireless microphones. In the Incentive Auction Report and Order, (FCC 14-62, adopted May 15, 2014, and released June 2, 2014), adopted concurrently with this Second R&O, the Commission adopts several measures to accommodate the needs of wireless microphone users in the portion of the UHF band that will remain available for their operations following the incentive auction. Among other actions, the Commission revised its rules for co-channel operations to expand areas where wireless microphones may be used in the bands that will remain allocated for broadcast services, and the Commission will permit wireless microphones to operate in the 600 MHz guard bands spectrum. Although the Commission will no longer designate two TV channels exclusively for wireless microphone use after the UHF band is reorganized, the Commission intends to designate one channel for use by wireless microphones and unlicensed devices and plans to make improvements in the TV bands database to enable more timely and effective registration of wireless microphone users seeking interference protection from TVWS device operations. In addition, while wireless microphones will eventually be required to cease operating in the spectrum repurposed for wireless broadband, the Commission will allow wireless microphone users to continue to operate for 39 months following the incentive auction in order to facilitate their transition to other spectrum. Finally, recognizing the important benefits provided by wireless microphones, the Commission plans to initiate a proceeding in the near term to explore ways to help accommodate the longer-term needs of wireless microphone users through use of additional frequency bands to meet their varying needs.

3. The Commission's rules in part 74, Subpart H, provide for licensed operations of wireless microphones primarily on frequencies allocated for television broadcasting on a secondary, non-exclusive basis. License eligibility has evolved over time and now includes the following specified entities: Licensees of radio and broadcast television stations, broadcast television network entities, certain cable television system operators, and motion picture and television program producers. These entities share the need for regular and reliable high quality audio services that are free from interference and often require a large number of wireless microphones to meet their needs. Licensees may not cause harmful interference to the operations of TV broadcast and land mobile stations operating on a primary basis and must comply with a number of technical rules. These include requirements to avoid causing harmful interference to TV broadcasting and land mobile station operations, to coordinate frequencies with other LPAS operations, to comply with specified transmission power limits and out-of-band emission limits, and to use FCC-certified equipment. LPAS licensees may receive protection from TVWS devices by registering in the TV bands database.

4. In the 2010 Wireless Microphone Report and Order, 75 FR 3622, January 22, 2010, the Commission first authorized unlicensed operations in the broadcast television bands in recognition of the important benefits provided by wireless microphones in performances and programs in theaters, classrooms, lecture halls, houses of worship, stadiums, and other venues. The Commission granted waivers of its rules to permit continued operations of wireless microphones on an unlicensed basis under part 15 in the core television bands, generally at a power of up to 50 milliwatts. These temporary waivers have been in effect pending further action in this docket.

5. The Commission subsequently recognized that certain types of unlicensed wireless microphone users require a large number of wireless microphones and should therefore be permitted to register in the TV bands database, upon meeting certain conditions. Specifically, the new rule provided that an unlicensed wireless microphone user must demonstrate to the Commission that it requires a large number of microphones and that it is using all TV channels not available to other users and on which wireless microphones can practicably be used. Unlike LPAS licensees, which can register directly with the database administrator, unlicensed wireless microphone users must apply to the Commission and must do so at least 30 days in advance of the event for which they seek protection.

6. In the Wireless Microphone Further Notice, 75 FR 3682, January 22, 2010, the Commission sought comment on whether to provide for a limited expansion of license eligibility under part 74 Subpart H of the rules. The Commission recognized that certain types of unlicensed wireless microphone users, including many large cultural, civic, sporting and religious events, may have needs that are similar to existing licensees and share the need for the kinds of interference protection that a license affords. The Commission further noted that it previously had expanded license eligibility to accommodate users with requirements similar to those of broadcast licensees. However, it noted that any “broad expansion” of eligibility could significantly reduce the amount of spectrum available for other uses of the TV bands, such as by TVWS devices. In addition, the Commission understood that any expansion of part 74 license eligibility would have an impact on the existing licensees and sought comment on how expansion might affect the viability of frequency coordination among existing licensees that make use of the spectrum to address their needs. The Commission subsequently issued a public notice to refresh the record on these issues, as well as on the promotion of more efficient use of spectrum, and the impact of TVWS devices and incentive auction proceedings regarding spectrum currently allocated to TV broadcasting.

7. The Commission received 24 comments and 18 reply comments in response to the Wireless Microphone Further Notice. The Commission received 25 comments and 11 reply comments in response to the Wireless Microphone Refresh Public Notice .

8. In this Second R&O, the Commission finds that it is in the public interest to provide for a limited expansion of the types of entities eligible for a part 74 LPAS license to include qualifying professional sound companies, as well as owners and operators of large venues. In order to qualify for a license, a professional sound company or venue must certify that it provides audio services or holds events that routinely use 50 or more wireless microphones, where the use of such devices is an integral part of major events or productions. Routinely using 50 or more wireless microphones means that the professional sound company or venue uses 50 or more such devices for most events or productions. Such events may include, for example, performing arts events; major sports, cultural, religious and corporate events; and large theater productions.

9. The Commission concludes that professional sound companies and venues that routinely use 50 or more wireless microphones generally have the same needs for interference protection as existing LPAS licensees in order to ensure reliable, high quality audio, particularly given the spectrum requirements associated with use of a large number of wireless microphones. This expansion will provide a meaningful benefit to entities that require the protection that a license affords without unduly reducing the amount of spectrum available for other uses in the television bands. Unlicensed wireless microphone users that do not qualify for a license may continue to operate under the terms of the existing waivers.

10. Expanded License Eligibility. The eligibility threshold the Commission adopts is limited to professional sound companies and venues that have the sophisticated knowledge and capability to manage use and coordination of a large number of wireless microphones, register qualifying events in the TV broadcast database, and comply with LPAS rules. As discussed in the record, these types of professional users have experience in coordinating wireless microphone uses among themselves at venues or events, even in congested markets. They also have similar needs to existing LPAS licensees in order to provide high quality audio services for large scale performances and events.

11. For purposes of the revised eligibility rule, a professional sound company is defined as an entity that provides audio services that routinely use 50 or more low power auxiliary station devices, where the use of such devices is an integral part of major events or productions. Services by a professional sound company may include the provision of equipment, as well as engineering expertise and frequency coordination. A production company that provides its own audio services, such as a touring theater company or performer, would be eligible for licensing under this definition, provided that it routinely uses 50 or more wireless microphones in connection with the performances or events.

12. Eligible venues are those that routinely use 50 more wireless microphones and may include indoor or outdoor seated facilities, including auditoriums, amphitheaters, arenas, stadiums, theaters, and houses of worship, as well as indoor or outdoor venues without fixed seating, including convention centers, conference locations, amusement parks, fairgrounds, entertainment complexes, athletic facilities, educational centers, and government locations. The venue does not have to own or operate the wireless microphones itself to qualify for the LPAS license but must routinely host large-scale productions that require 50 or more of these devices.

13. Licenses issued to large venue owners or operators are specific to a single venue and authorize operation only at that venue. The Commission allows venues that are comprised of more than one theater or stage area to be eligible provided they routinely use 50 or more wireless microphones by combining all theaters or stage areas at that same location. This will provide interference protection for all theaters and similar facilities at large multi-stage venues, and it will provide flexibility to the licensee, for example, in the event there are location changes for performances and events within the venue.

14. Expanding eligibility in this manner is consistent with the approach the Commission has previously taken with respect to part 74 LPAS license eligibility. Although licensing was initially limited to licensees of radio and broadcast television stations, the Commission expanded licensing eligibility to include motion picture and television producers on grounds that these entities had the same types of needs as existing LPAS licensees. It further noted that it would consider on a case-by-case basis license applications by “other groups such as live entertainment program producers, etc.” whose needs are similar to those of broadcast licensees.

15. The newly-eligible licensees have similar needs to existing LPAS licensees in order to provide high quality audio services for large scale performances and events. The Commission notes, for example, that interference protection is just as important for professional sound companies and venues that present large performances as it is for existing broadcast and broadcast-related entities because of the need to protect the quality of the performances that their audiences demand and value. For example, the Commission notes that the need for licensed LPAS devices to be free from harmful interference can be critical for large, live performances, where there may be no chance at a “second take.”

16. The Commission concludes that routine use of 50 microphones is a reasonable threshold for identifying those entities that are more likely to require interference protection in order to ensure high quality audio services. The record shows that large events and programs regularly utilize a substantial number of wireless microphones. The number of wireless microphones used is generally an indicator of the complexity of productions and the need to ensure interference-free high audio quality. Interference protection is important for large, live performances because audiences expect “performances of the highest caliber,” and interference should not hinder such performances.

17. Although the number of these devices used for any event can vary based upon a variety of factors, including the nature of the performance, large events and productions often require 50 or more devices. Data submitted by parties indicate that an average of approximately 50 wireless microphones is used for theatrical performances, and that complex performances, such as musicals, often use more. These data also indicate that average wireless microphone usage at sporting events is approximately 80 microphones (although major sporting events can top 300 microphones), and that more than 150 wireless microphones on average are used at live events or shows.

18. Large events and productions have less flexibility in choosing channels to avoid interference than when only a few such devices are used. This occurs because the wireless microphone user needs to avoid causing interference to or receiving interference from operating TV station signals as well as other wireless microphones operating in close frequency and spatial proximity (e.g., among the wireless microphones being used during any one event or production). As a result, productions utilizing a large number of these devices must have access to a significant amount of spectrum that may only be available through licensed use. A production utilizing 50 devices, for example, could need interference-free access to many TV channels at any given venue. For these reasons, the Commission concludes that routine use of a minimum of 50 wireless microphones provides a reasonable basis for establishing license eligibility.

19. Finally, adopting a standard based on the number of wireless microphones—in this case, 50 or more—is in the public interest because it does not just focus on one particular class or group of users, or on the content of the presentation or event. Rather, this standard encompasses a range of professional entities that provide sound for major events and productions irrespective of the class or group of users or the content of the event or performance.

20. The limited expansion the Commission adopts strikes an appropriate balance in expanding license eligibility where there is a clear need, while ensuring that spectrum is shared effectively with the existing LPAS operations and remains available for other uses, such as by TVWS devices. Together with the provisions adopted in the Incentive Auction Report and Order, the expansion the Commission adopts will ensure that the reduced amount of television spectrum that remains after repacking can continue to accommodate wireless microphone operations along with other uses in an efficient and effective manner. For this reason, the Commission rejects arguments presented by parties who oppose any expansion of part 74 eligibility by arguing that such expansion will unduly reduce spectrum available for other uses, such as TVWS devices, especially in major metropolitan areas, and hinder the development of wireless broadband. The Commission also agrees that it is important “to be flexible” in expanding eligibility, and its new eligibility criteria are designed with that goal in mind. However, the Commission does not believe it is appropriate to expand eligibility further than the approach the Commission adopts in this order. Limiting license eligibility expansion to professional sound companies and venues that routinely use 50 or more wireless microphones strikes an appropriate balance among competing users for the more limited broadcast spectrum remaining after the repacking, while as noted below continuing to permit use by other wireless microphone users on an unlicensed basis.

21. The Commission notes at the outset that the licensing eligibility criteria the Commission establishes should have limited impact on the availability of spectrum for other users in the repacked UHF band. First, the Commission does not expect to significantly expand the types of events or use that would qualify for interference protection from TVWS devices, given that the Commission already permits events that require a large number of microphones to be registered in the database today. The Commission's rules currently allow both existing part 74 licensees and certain unlicensed users requiring large numbers of wireless microphones to register in the database for interference protection, although unlicensed users must demonstrate that they are using the TV channels not available for TVWS devices and must request registration by filing with the Commission, rather than the database administrator, at least 30 days in advance. The rules adopted in this order will enable the newly eligible entities, which generally are able to register for database protection as unlicensed users, to obtain protection in the TV bands database in a more administratively efficient manner, through the part 74 license process.

22. The Commission further observes that the actions it takes in the Incentive Auction Report and Order help mitigate the impact that expanding eligibility may have on other users in the band. For example, by addressing the spectrum needs of wireless microphone users in a new proceeding that the Commission will initiate in the near term to promote the use of frequency bands outside of the UHF band, the Commission potentially increases spectrum resources available to TVWS devices in the TV bands, as well as to existing and newly eligible LPAS licensees both in the TV bands and in other spectrum bands. The Incentive Auction Report and Order also makes additional spectrum available to TVWS devices by providing such devices access to the repurposed spectrum during the 39-month transition period, designating one channel for use by TVWS and wireless microphones and permitting them to continue operating on vacant channels allocated and assigned for primary television services, making the 600 MHz guard bands available for unlicensed use, as well as permitting unlicensed use on channel 37 subject to appropriate protections for channel 37 incumbents. Taken together, the Commission expects that these actions will help to address the existing and longer-term needs of wireless microphones and TVWS users.

23. The Commission also notes that wireless microphones and related devices may still operate on an unlicensed basis. The Commission is not persuaded by arguments that with expanded eligibility the Commission should restrict unlicensed wireless microphone use in the TV bands. The Commission finds it is in the public interest to continue the temporary waiver for unlicensed operations under part 15 that was granted in the Wireless Microphone Report and Order, and the Commission will make a determination on rules for unlicensed operations at a later date. This approach serves the public interest because it continues to provide a waiver for the operation of wireless microphones under part 15 for a wide range of applications, and permits the Commission to compile a record focused on unlicensed operations while the Commission considers other issues. On balance, the Commission concludes that the changes it is making best serves to address the important needs of wireless microphone users as well as other users that seek access to the broadcast spectrum that remains available for use following repacking.

24. There are parties who argue that expanding license eligibility will lead to inefficient use, remove incentives for technological advancement, and “cement the use of inefficient technologies,” but the Commission finds that these arguments do not provide a sufficient basis to outweigh the benefits of expanded eligibility in ensuring high quality audio services in connection with large events. Although high quality audio largely depends upon analog technology at the present time, steps have been taken during the past few years to develop and make available digital wireless microphones. The Commission has found that it is in the public interest to provide for a limited expansion of license eligibility, and the Commission will consider the current state of digital technology for wireless microphones, along with the spectrum needs of wireless microphone and other users, in connection with a forthcoming Notice of Proposed Rulemaking on wireless microphones.

25. Nuclear Power Plants. The Commission denies requests to expand eligibility under Part 74 to include nuclear power plants, but the Commission modifies the NEI/UTC Waiver Letter Order to provide a uniform transmit power for operation of unlicensed low power auxiliary devices both inside and outside the nuclear power plants, as explained below. The NEI/UTC Waiver Letter Order provided nuclear power plants with additional flexibility in the operation of unlicensed low power auxiliary station devices by establishing tailored operating provisions for the use of those devices inside nuclear power plants. NEI/UTC ask that the rule waiver granted in the NEI/UTC Waiver Letter Order be codified in part 15 of the rules. They also ask that nuclear plants be made eligible under part 74 for licensed LPAS use at their plants so that they can have “greater flexibility to use their Telex equipment in more limited outdoor applications at their facilities, such as when carrying fuel rods to storage locations.”

26. The Commission declines to expand part 74 eligibility to include nuclear power plants as unnecessary at this time because the Commission is providing increased flexibility for their operations by modifying the rule waiver to make the power limits uniform for both indoor and outdoor operations. This modification of the rule waiver obviates the need to expand eligibility to include nuclear power plants because the modified waiver will enable nuclear power plants to use their Telex equipment both indoors and outdoors at 100 milliwatts. The Commission also declines to codify the waiver provisions at this time, because there has been no showing that further relief is necessary prior to consideration of changes to its rules in connection with the forthcoming Notice of Proposed Rulemaking addressing wireless microphone use. Finally, the Commission finds that operations of these devices outside at transmit levels up to 100 milliwatts would not interfere with other users in the TV bands because the locations of nuclear power plants are known, they generally are located in remote areas, and their Telex equipment operates at a relatively low power.

27. License Requirements. As part of the licensing process, applicants will be required to certify and provide supporting evidence that they meet all eligibility criteria, including information showing that they routinely provide audio services or hold events that require use of 50 or more wireless microphones. The requirement that a licensee must routinely provide audio services or hold events that require use of 50 or more wireless microphones will also appear as a condition on the license. In addition, as with other licensed operations for LPAS, newly eligible licensees will be subject to all applicable rules, including the requirement that wireless microphone use is “secondary to TV broadcasting and land mobile stations operating in the UHF-TV spectrum and must not cause harmful interference.” If such interference occurs, the operation must immediately cease and may not resume until the interference problem has been resolved. Moreover, where two or more LPAS licensees seek to operate in the same area, the licensees should “select frequencies or schedule operation in such manner as to avoid mutual interference.”

28. The Commission declines to modify its licensing procedures or the information required from an applicant, except to the extent necessary to reflect the modification to the rules the Commission adopts here. The new class of eligible entities is comprised of venues and professional sound companies that routinely use 50 or more wireless microphones, and the Commission does not anticipate that the licensing process should be difficult for them to follow. Further, the Commission concludes that it is not necessary to grant the request for separate licenses for individual frequency ranges because an applicant is already able to specify individual frequency ranges on its license. Finally, the Commission rejects requests to modify or waive the fees relating to LPAS. The Commission is required to assess and collect application fees pursuant to section 8 of the Communications Act of 1934, as amended, and the Commission declines to grant a waiver except pursuant to its established waiver standards for a “specific instance for good cause shown, where such action would promote the public interest.”

29. License Conditions. The Incentive Auction Report and Order requires wireless microphones to vacate the repurposed UHF spectrum by the end of the post-auction transition period, which will be 39 months after the release of the Channel Reassignment Public Notice. Consistent with this deadline, the Commission expressly conditions any new LPAS licenses granted between now and that date, including licenses granted to newly eligible licensees, on the requirement to cease operating in the repurposed spectrum no later than that date. Further, the Commission delegates authority to the WTB to modify the LPAS licenses to delete the frequencies identified as repurposed in the Channel Reassignment Public Notice, effective as of the end of the post-auction transition period, and to make any other related changes as necessary. Following the post-auction transition period, licensees may operate only in the bands allocated for TV broadcasting.

30. License Term. The Commission finds that it is in the public interest to provide newly eligible licensees an initial and renewal license term not to exceed ten years. A ten-year term for these licenses is consistent with the license term of most other wireless services, such as part 27 services, cellular service, and Personal Communications Services. Moreover, a ten-year license term provides these licensees with flexibility because it is a relatively long period of time and will give them a greater degree of certainty in connection with their status and ability to receive the benefits of a license.

31. The existing rule ties the license term to that of broadcast stations in the same area of operation. The Commission declines to apply this rule to the new licensees because their operation of wireless microphones is generally not related to or affiliated with local broadcast operations, and conforming their license term to the term of local broadcast stations could lead to confusion with no corresponding benefit. The Commission notes that if it applied the existing rule to the new licensees, they would have an initial license term that is no more than eight years but could be substantially less if the license were obtained in the middle of the license term of broadcast stations located in the same area of operation. Moreover, many new professional sound company licensees may provide services in different regions. Application of the existing LPAS license term would be burdensome and confusing because it would result in different license terms for the same entity operating in different geographic areas. Finally, the Commission anticipates that many of these new licensees could be small entities and that it would ease regulatory burdens on them if their initial license term were to run for the full ten-year period.

32. Final Regulatory Flexibility Analysis. The Regulatory Flexibility Act (RFA) requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared a Final Regulatory Flexibility Analysis concerning the possible impact of the rule changes contained in the Second R&O on small entities. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Wireless Microphone Further Notice. The Commission sought written public comment on the proposals in the Wireless Microphone Further Notice, including comment on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

33. The Commission believes that it would serve the public interest to analyze the possible significant economic impact of the policy and rule changes for expanded wireless microphone license eligibility on small entities. Accordingly, this FRFA contains an analysis of this impact in connection with the limited expansion of wireless microphone license eligibility within the scope of this Second R&O.

34. The Commission provides for a limited expansion of wireless microphone license eligibility under part 74, Subpart H of the Commission's rules to facilitate the operation of wireless microphones by professional sound companies and the owners and operators of large venues that use a large number of these devices. Specifically, in order to be eligible for a license, a professional sound company or venue must certify that it provides audio services or holds events that routinely use 50 or more wireless microphones, where the use of such devices is an integral part of major events or productions. Professional sound companies and large venues that meet these requirements have needs for interference protection to ensure reliable, high quality audio. Expanding wireless microphone license eligibility on this basis is in the public interest because it will benefit entities that require the protection that a license affords without unduly reducing the amount of spectrum available for other uses in the television spectrum bands. In addition, expanding license eligibility in this manner avoids distinctions based on presentation content or on particular classes or groups of users.

35. There were no comments filed that specifically addressed the rules and policies proposed in the IRFA.

36. 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 rules adopted herein. 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 Small Business Administration (SBA).

37. Small Businesses, Small Organizations, and Small Governmental Jurisdictions. The Commission's action may, over time, affect small entities that are not easily categorized at present. The Commission therefore describes here, at the outset, three comprehensive, statutory small entity size standards. First, nationwide, there are a total of 28.2 million small businesses, according to the SBA. In addition, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2012, there were approximately 2,300,000 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2012 indicate that there were 90,056 local governments in the United States. Thus, the Commission estimates that most governmental jurisdictions are small.

38. LPAS Licensees. There are a total of more than 1,200 Low Power Auxiliary Station (LPAS) licenses in all bands and a total of over 600 LPAS licenses in the UHF spectrum. Existing LPAS operations are intended for uses such as wireless microphones, cue and control communications, and synchronization of TV camera signals. These low power auxiliary stations transmit over distances of approximately 100 meters.

39. Radio Stations. This Economic Census category “comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources.” The SBA defines a radio broadcast station as a small business if such station has no more than $35.5 million in annual receipts. Business concerns included in this industry are those “primarily engaged in broadcasting aural programs by radio to the public.” According to Commission staff review of the BIA Publications, Inc. Master Access Radio Analyzer Database as of November 26, 2013, about 11,331 (or about 99.9 percent) of 11,341 commercial radio stations have revenues of $35.5 million or less and thus qualify as small entities under the SBA definition.

40. The Commission notes, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Its estimate, therefore, likely overstates the number of small entities that might be affected by its action because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies.

41. Television Broadcasting. This Economic Census category “comprises establishments primarily engaged in broadcasting images together with sound. These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public.” The SBA has created the following small business size standard for Television Broadcasting firms: Those having $14 million or less in annual receipts. The Commission has estimated the number of licensed commercial television stations to be 1,388. In addition, according to Commission staff review of the BIA Advisory Services, LLC's Media Access Pro Television Database on March 28, 2012, about 950 of an estimated 1,300 commercial television stations (or approximately 73 percent) had revenues of $14 million or less. The Commission therefore estimates that the majority of commercial television broadcasters are small entities.

42. The Commission notes, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Its estimate, therefore, likely overstates the number of small entities that might be affected by its action because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive to that extent.

43. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 396. These stations are non-profit, and therefore considered to be small entities.

44. There are also 2,414 low power television stations, including Class A stations and 4,046 television translator stations. Given the nature of these services, the Commission will presume that all of these entities qualify as small entities under the above SBA small business size standard.

45. Cable Television Distribution Services. Since 2007, these services have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. Census data for 2007 shows that there were 3,188 firms that operated for the duration of that year. Of those, 3,144 had fewer than 1,000 employees, and 44 firms had more than 1,000 employees. Thus under this category and the associated small business size standard, the majority of such firms can be considered small.

46. Cable Companies and Systems. The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide. Industry data indicate that of approximately 1,100 cable operators nationwide, all but ten are small under this size standard. In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Industry data indicate that of 6,635 systems nationwide, 5,802 systems have fewer than 10,000 subscribers, and an additional 302 systems have 10,000-19,999 subscribers. Thus, under this second size standard, most cable systems are small.

47. Cable System Operators. The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Industry data indicate that of approximately 1,100 cable operators nationwide, all but ten are small under this size standard. The Commission notes that it neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore the Commission is unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard.

48. Motion Picture and Video Producers. This economic census category comprises “establishments primarily engaged in producing, or producing and distributing motion pictures, videos, television programs, or television commercials.” The SBA has developed a small business size standard for this category that includes all businesses having $30 million or less in annual receipts. Census Bureau data for 2007 show there were 9,478 firms in this category that operated that year. Of that number, 9,128 had annual receipts of $24,999,999 or less, and 43 had annual receipts ranging from not less than $25,000,000 to $100,000,000 or more. Thus, under this size standard, the majority of such businesses can be considered small entities.

49. Broadband Radio Service (formerly Multipoint Distribution Service) and Educational Broadband Service (formerly Instructional Television Fixed Service). Multichannel Multipoint Distribution Service (MMDS) systems often referred to as “wireless cable,” transmit video programming to subscribers using the microwave frequencies of the Multipoint Distribution Service (MDS) and Instructional Television Fixed Service (ITFS). In its BRS/EBS Report and Order in WT Docket No. 03-66, the Commission comprehensively reviewed its policies and rules relating to the ITFS and MDS services, and replaced the MDS with the Broadband Radio Service and ITFS with the Educational Broadband Service in a new band plan at 2495-2690 MHz. In connection with the 1996 MDS auction, the Commission defined “small business” as an entity that, together with its affiliates, has average gross annual revenues that are not more than $40 million for the preceding three calendar years. The SBA approved of this standard.

50. The SBA developed a small business size standard for Cable and Other Distribution, and the activities under that classification have been reclassified into Wired Telecommunications Carriers. The SBA has developed a small business size standard for Wired Telecommunications Carriers, which is all such firms having 1,500 or fewer employees. Census data for 2007 shows that there were 3,188 firms that operated for the duration of that year. Of those, 3,144 firms had fewer than 1,000 employees, and 44 firms had 1,000 or more employees. Thus under this category and the associated small business size standard, the majority of such firms can be considered small. In addition to Census data, the Commission's internal records indicate that, as of September 2012, there are 2,241 active EBS licenses. The Commission estimates that of these 2,241 licenses, the majority are held by non-profit educational institutions and school districts, which are by statute defined as small businesses.

51. Low Power Auxiliary Device Manufacturers: 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 Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing, which is: All such firms having 750 or fewer employees. According to Census Bureau data for 2007, there were a total of 939 establishments in this category that operated for the entire year. Of this total, 912 establishments had employment of less than 500, and an additional 10 establishments had employment of 500 to 999. Thus, under this size standard, the majority of firms can be considered small.

52. Low Power Auxiliary Device Manufacturers: Other Communications Equipment Manufacturing. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing communications equipment (except telephone apparatus, and radio and television broadcast, and wireless communications equipment).” The SBA has developed a small business size standard for Other Communications Equipment Manufacturing, which is: All such firms having 750 or fewer employees. According to Census Bureau data for 2007, there were a total of 452 establishments in this category that operated for the entire year. Of this total, 448 establishments had employment below 500, and an additional 4 establishments had employment of 500 to 999. Thus, under this size standard, the majority of firms can be considered small.

53. Radio, Television, and Other Electronics Stores. The Census Bureau defines this economic census category as follows: “This U.S. industry comprises: (1) Establishments known as consumer electronics stores primarily engaged in retailing a general line of new consumer-type electronic products such as televisions, computers, and cameras; (2) establishments specializing in retailing a single line of consumer-type electronic products; (3) establishments primarily engaged in retailing these new electronic products in combination with repair and support services; (4) establishments primarily engaged in retailing new prepackaged computer software; and/or (5) establishments primarily engaged in retailing prerecorded audio and video media, such as CDs, DVDs, and tapes.” The SBA has developed a small business size standard for Electronic Stores, which is: All such firms having $30 million or less in annual receipts. According to Census Bureau data for 2007, there were 11,358 firms in this category that operated for the entire year. Of this total, 11,323 firms had annual receipts of under $25 million, and 35 firms had receipts of $25 million or more but less than $50 million. Thus, the majority of firms in this category can be considered small.

54. Professional Lighting and Sound Services. After an extensive review of the NAICS industry classification system, the Commission was unable to find an exact category match for the firms which provide professional sound services for live events. The industry association for these firms, Professional Lighting and Sound Association, is an international body with 1,240 members and offices in London and New York. As its membership is both foreign and domestic, the Commission cannot ascertain how many of its members operate in the United States and would be subject to the new rules in this order.

55. As with other licensed operations for LPAS, a licensee that is eligible under the revised rule will be subject to all applicable rules, including the requirement that wireless microphone use is “secondary to TV broadcasting and land mobile stations operating in the UHF-TV spectrum and must not cause harmful interference.” If such interference occurs, the operation must immediately cease and may not resume until the interference problem has been resolved. Moreover, where two or more LPAS licensees seek to operate in the same area, the licensees should “select frequencies or schedule operation in such manner as to avoid mutual interference.”

56. The Incentive Auction Report and Order requires wireless microphones to vacate the repurposed UHF spectrum by the end of the post-auction transition period, which will be 39 months after the release of the Channel Reassignment Public Notice. Consistent with this deadline, the Second R&O conditions any new LPAS licenses granted between now and that date, including licenses granted to newly eligible licensees, on the requirement to cease operating in the repurposed spectrum no later than that date. Further, the Commission delegates authority to the Wireless Telecommunications Bureau (WTB) to modify these licenses to delete the frequencies identified as repurposed in the Channel Reassignment Public Notice, effective as of the end of the post-auction transition period, and to make any other related changes as necessary. Following the post-auction transition period, licensees may operate only in the bands allocated for TV broadcasting.

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

58. In the Second R&O, the Commission declines to modify its licensing procedures or the information required from an applicant, except to the extent necessary to reflect the modification to the rules the Commission adopts here. The new class of eligible entities consists of professional sound companies and owners and operators of large venues that routinely use a large number of wireless microphones, and the Commission does not anticipate that the licensing process should be difficult for them to follow. Further, the Commission concludes that it is not necessary to grant the request for separate licenses for individual frequency ranges because an applicant is already able to specify individual frequency ranges on its license. Finally, the Commission rejects requests to modify or waive the fees relating to LPAS, because the Commission is required to assess and collect application fees pursuant to Section 8 of the Communications Act of 1934, as amended.

59. The Commission's approach to eligibility in the Second R&O provides a balance by affording the benefits of a license for entities and events that have a demonstrated need, while ensuring that spectrum is shared effectively with existing LPAS operations and remains available for other uses, including TV white space (TVWS) devices. To the extent any of the entities that will be eligible for a license under the new eligibility rule are small entities, they will be able to obtain a license for their wireless microphone operations. In addition, other entities, including small entities, which do not meet the eligibility requirement, have alternatives for their operations. Under the waiver granted in the Wireless Microphone Report and Order and continued in effect in the Second R&O, such entities may still operate their wireless microphones on an unlicensed basis subject to the waiver and certain other requirements. Also, operators of wireless microphones that are not licensed, which may include small entities, may also be able to register certain events, such as major sporting contests or live theatrical productions, in the TV bands databases for protection against interference from TVWS devices provided they meet the requirements in the Commission's rules.

60. The Second R&O provides newly eligible licensees an initial and renewal license term not to exceed ten years. A ten-year license term provides these licensees with flexibility because it is a relatively long period of time and will give them a greater degree of certainty in connection with their status and ability to receive the benefits of a license. In contrast, the existing rule ties the license term to that of broadcast stations in the same area of operation. The Commission notes that if it applied the existing rule to the new licensees, they would have an initial license term that is no more than eight years but could be substantially less if the license were obtained in the middle of the license term of broadcast stations located in the same area of operation. Also, many new professional sound company licensees may provide services in different regions. Application of the existing LPAS license term would be burdensome and confusing because it would result in different license terms for the same entity operating in different geographic areas. The Commission anticipates that many of these new licensees could be small entities and that it would ease regulatory burdens on them if their initial license term were to run for the full ten-year period.

61. The Commission will send a copy of the Second R&O, including the FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Second R&O, including the FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register .

62. Final Paperwork Reduction Act Analysis. The Second R&O contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.

63. Congressional Review Act. The Commission will send a copy of this Second R&O to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

64. Accordingly, it is ordered, pursuant to sections 1, 4(i), 301, 302, 303, and 316 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 301, 302a, 303, and 316, that this Second Report and Order in WT Docket Nos. 08-166; 08-167, and ET Docket No. 10-24 is adopted.

65. It is further ordered that part 74 of the Commission's rules, 47 CFR part 74, is amended as set forth in Appendix B of the Second R&O, and such amendments shall be effective 30 days after the date of publication in the Federal Register , except for section 74.832, which contains new or modified information collection requirements that require approval by the Office of Management and Budget (OMB) under the PRA. The Federal Communications Commission will publish a document in the Federal Register announcing such approval and the relevant effective date.

66. It is further ordered that all low power auxiliary station licenses granted between the effective date of this Second Report and Order and the end of the post-auction transition period are conditioned as stated herein and that all low power auxiliary station licenses granted to large venue owners or operators and professional sound companies are conditioned as stated herein.

67. It is further ordered that the temporary waiver granted in the Wireless Microphones Report and Order, which permits certain unlicensed operation of wireless microphones in the broadcast television spectrum, shall continue in effect pending the outcome of further proceedings.

68. It is further ordered that the NEI/UTC Waiver Letter Order is modified as stated herein. As modified, it shall continue in effect pending the outcome of further proceedings.

69. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Second Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

70. It is further ordered that the Commission shall send a copy of this Second Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 74 as follows: