The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.

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

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel about these special conditions. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except federal holidays.

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

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

On March 29, 2005, Gulfstream Aerospace Corporation (GAC) applied for an FAA type certificate for its new Model GVI passenger airplane (hereafter referred to as “the GVI” airplane). On September 28, 2006, GAC re-applied for the GVI type certificate in order to adhere to the application effectivity established by Title 14, Code of Federal Regulations (14 CFR) 21.17(c), and on July 31, 2011, GAC requested an extension of application in accordance with § 21.17(d)(2). The FAA concurred with this request and established a new effective application date of September 18, 2007. The GVI airplane will be an all-new, two-engine jet transport airplane. The maximum takeoff weight will be 99,600 pounds, with a maximum passenger count of 19 passengers.

Under the provisions of 14 CFR 21.17, GAC must show that the GVI meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-120, 25-122, 25-124, and 25-132 thereto. If the Administrator finds that the applicable airworthiness regulations ( i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the GVI because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design features, the special conditions would also apply to the other model.

In addition to complying with the applicable airworthiness regulations and special conditions, the GVI must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. The FAA must also issue a finding of regulatory adequacy pursuant to section 611 of Public Law 92-574, the “Noise Control Act of 1972.”

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).

The GVI flightdeck design incorporates a hydrophobic windshield coating to provide adequate pilot compartment view in the presence of precipitation. Sole reliance on such a coating, without windshield wipers or a windshield blower, constitutes a novel or unusual design feature for which the applicable airworthiness regulations do not contain adequate or appropriate safety standards. Therefore, special conditions are required that provide the level of safety equivalent to that established by the regulations.

Section 25.773(b)(1) of 14 CFR requires a means to maintain a clear portion of the windshield for both pilots to have a sufficiently extensive view along the flight path during precipitation conditions. The regulations require this means to maintain such an area during precipitation in heavy rain at speeds up to 1.5 V SR1 . The existing regulations cover technologies that primarily account for increased airflow and precipitation rates as limiting conditions. For example, as airflow and precipitation rates increase, the effectiveness of windshield wipers to maintain an area of clear vision normally degrades as airflow and precipitation rates increase. It is assumed that because high speeds and high precipitation rates represent limiting conditions for windshield wipers, they will also be effective at lower speeds and precipitation levels. Accordingly, § 25.773(b)(1)(i) does not require maintenance of a clear area of forward vision at lower speeds or lower precipitation rates. A forced air stream blown over the windshield has also been used to maintain an area of clear vision in precipitation. The limiting conditions for this technology are comparable to those for windshield wipers. Accordingly, introduction of this technology did not require special conditions to maintain the level of safety embodied in the existing regulations.

However, the heavy rain and high-speed conditions specified in the current rule do not necessarily represent the limiting conditions for hydrophobic windshield coatings, which may depend to some degree on airflow over the windscreen to maintain a clear vision area. For example, in low-speed flight or during surface operations, airflow over the windshield may not be adequate to maintain a sufficiently clear area of the windshield. Additionally, during such critical times as during final approach where the airplane is at a higher-than-normal pitch attitude, airflow over the windshield may be disturbed. In these cases, areas of airflow disturbance or separation on the windshield could cause failure to maintain a clear vision area on the windshield.

In addition to airflow, the effectiveness of hydrophobic coatings may also be affected by the size of precipitation. In some cases, the properties of the coating may not be sufficient to provide a clear area of vision during precipitation in the form of light mist.

The heavy rain and high-speed conditions specified in the current rule do not necessarily represent the limiting condition for this new technology. For example, airflow over the windshield, which may be necessary to remove moisture from the windshield, may not be adequate to maintain a sufficiently clear area of the windshield in low-speed flight or during surface operations. Alternatively, airflow over the windshield may be disturbed during such critical times as the approach to land, where the airplane is at a higher-than-normal pitch attitude. In these cases, areas of airflow disturbance or separation on the windshield could cause failure to maintain a clear-vision area on the windshield.

In summary, the current regulations identify speed and precipitation rate requirements that represent limiting conditions for windshield wipers and blowers, but not for hydrophobic coatings, so it is necessary to issue special conditions to maintain the level of safety represented by the current regulations.

As discussed above, these special conditions are applicable to the GVI. Should GAC apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on the GVI. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

The Entity List (Supplement No. 4 to Part 744) provides notice to the public that certain exports, reexports, and transfers (in-country) to entities identified on the Entity List require a license from the Bureau of Industry and Security (BIS) and that the availability of license exceptions in such transactions is limited. Entities are placed on the Entity List on the basis of certain sections of part 744 (Control Policy: End-User and End-Use Based) of the EAR.

The ERC, composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, when appropriate, the Treasury, makes all decisions regarding additions to, removals from or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and all decisions to remove or modify an entry by unanimous vote.

This rule implements decisions of the ERC to add persons to the Entity List and modify existing entries based on the annual review of the Entity List. These changes are described under Additions to the Entity List and Annual Review of the Entity List below.

This rule implements the decision of the ERC to add fourteen persons under twenty-one entries to the Entity List on the basis of § 744.11 (License requirements that apply to entities acting contrary to the national security or foreign policy interests of the United States) of the EAR. The twenty-one entries added to the Entity List consist of eleven entries in Afghanistan, one in the People's Republic of China (China), one in Hong Kong, and eight in Pakistan. Seven of the twenty-one entries cover additional addresses of persons being added to the Entity List—these persons are being listed under multiple countries to account for alternate addresses. Specifically, these seven additional entries cover six persons in Afghanistan who also have addresses in Pakistan (resulting in six additional entries for the Pakistani addresses) and one person in China who also has an address in Hong Kong (resulting in one additional entry for the Hong Kong address).

The ERC reviewed § 744.11(b) (Criteria for revising the Entity List) in making the determination to add these persons to the Entity List. Under that paragraph, persons for which there is reasonable cause to believe, based on specific and articulable facts, that the persons have been involved, are involved, or pose a significant risk of being or becoming involved in, activities that are contrary to the national security or foreign policy interests of the United States and those acting on behalf of such persons may be added to the Entity List pursuant to § 744.11. Paragraphs (b)(1)-(b)(5) of § 44.11 include an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States. Thirteen of the fourteen persons are believed to have been involved in activities described under paragraphs (b)(1) and (b)(2) of § 744.11. Specifically, the thirteen persons in Afghanistan and Pakistan are being added to the Entity List on the basis of their provision of material support to persons engaged against U.S. and Coalition forces in Afghanistan.

Additionally, the U.S. Government has reasons to believe that one person in China, who will also be listed under an alternate address in Hong Kong, has been involved in activities described under paragraph (b)(5) of § 744.11. Specifically, the person in China has obtained items subject to the EAR without the required EAR authorizations. BIS believes that the activities of all fourteen of these persons are contrary to U.S. national security and foreign policy interests.

For the fourteen persons added to the Entity List under twenty-one entries, the ERC specifies a license requirement for all items subject to the EAR and establishes a license application review policy of a presumption of denial. The license requirement applies to any transaction in which items are to be exported, reexported, or transferred (in-country) to such persons or in which such persons act as purchaser, intermediate consignee, ultimate consignee, or end-user. In addition, no license exceptions are available for exports, reexports, or transfers (in- country) to those persons being added to the Entity List.

This final rule adds the following fourteen persons under twenty-one entries to the Entity List:

(1) Abdul Satar Ghoura, 501, 5th Floor, Amanullah Sancharaki Market Opp Chaman E Huzuri, Kabul, Afghanistan; and Flat No. 41 Block No. 24 Macroyan 3, Kabul, Afghanistan. (See alternate addresses under Pakistan);

(2) Assadullah Majed, 42S WD 18476 22167 Kabul, Afghanistan, and A2 Ground Floor, City Computer Plaza, Shar-e-Naw, Kabul, Afghanistan;

(3) Fazal Rahim Farid, a.k.a., the following three aliases:

Microrayan 3rd Apt. 45, block #21, Kabul, Afghanistan, and A2 Ground Floor, City Computer Plaza, Shar-e-Naw, Kabul, Afghanistan. (See alternate addresses under Pakistan);

(4) Hanif Computer Zone (HCZ), Ghazni City, Afghanistan;

(5) Habib ur Rahman, a.k.a., the following two aliases:

Ghazni City, Afghanistan;

(6) Iqra Computer Products, a.k.a., the following two aliases:

A2 Ground Floor, City Computer Plaza, Shar-e-Naw, Kabul, Afghanistan;

(7) Kurshid Ghoura, a.k.a., the following two aliases:

501, 5th Floor, Amanullah Sancharaki Market Opp Chaman E Huzuri, Kabul, Afghanistan; and Flat No. 41 Block No. 24 Macroyan 3, Kabul, Afghanistan. (See alternate addresses under Pakistan);

(8) Lapcom Computer Stores, A2 Ground Floor, City Computer Plaza, Shar-e-Naw, Kabul, Afghanistan. (See alternate address under Pakistan);

(9) Muhammad Halim Ghoura, 501, 5th Floor, Amanullah Sancharaki Market Opp Chaman E Huzuri, Kabul, Afghanistan; and Flat No. 41 Block No. 24 Macroyan 3, Kabul, Afghanistan. (See alternate addresses under Pakistan);

(10) Ologh Beg International Forwarders Ltd., 501, 5th Floor, Amanullah Sancharaki Market Opp Chaman E Huzuri, Kabul, Afghanistan. (See alternate address under Pakistan); and

(11) Qazi Abdallah, a.k.a., the following four aliases:

Microrayan 3rd Apt. 45, Block No. 21, Kabul, Afghanistan.

(1 ) Xian Semi Electronic Co., Ltd., a.k.a., the following three aliases:

Room 24F, Duhui 100 Building Block B, ZhongHang Road, Futian District, Shenzhen City GuangDong Province, China; Room 1810 Lang Chen Building, No. 13 Gaoxin Road, High Technology Development Zone, Xian, China; Room 24F-27E Duhui B, Zhonghang Road, Futian District, Shenzhen City, China; and Room 1802 Xigema Building No. 25, Gaoxin Road, High-Tech Development Zone, Xian, China. (See alternate address under Hong Kong).

(1) Xian Semi Electronic Co., Ltd., a.k.a., the following three aliases:

CAMDY, F1, 6/F BR3 Lanzhou Ind., No. 20-30 Jiangyuan, Yantian, Hong Kong; and Room 611 6/F Ricky CTR 36 Chong Yip St., Kwun Tong Kowloon, Hong Kong. (See alternate address under China).

(1) Abdul Satar Ghoura, 127-128, Times Center, Saddar Road, Peshawar, Pakistan; and House Number 32, F-2, Khusal Khan Khattak Road, University Town, Peshawar, Pakistan. (See alternate addresses under Afghanistan);

(2) Farzad Fazil Karim, a.k.a., the following one alias:

E3 Gul Market Street 8, Hayatabad, Pakistan; and 122, First floor, Gul Haji Plaza, Peshawar, Pakistan;

(3) Fazal Rahim Farid, a.k.a., the following three aliases:

122, First Floor, Gul Haji Plaza, Peshawar, Pakistan; and House Number 32, F-2, Khusal Khan Khattak Road, University Town, Peshawar, Pakistan. (See alternate addresses under Afghanistan);

(4) Kurshid Ghoura, a.k.a., the following two aliases:

127-128, Times Center, Saddar Road, Peshawar, Pakistan; and House Number 32, F-2, Khusal Khan Khattak Road, University Town, Peshawar, Pakistan. (See alternate addresses under Afghanistan);

(5) Lapcom Computer Stores, 122, First Floor, Gul Haji Plaza, Peshawar, Pakistan. (See alternate address under Afghanistan);

(6) Muhammad Halim Ghoura, 127-128, Times Center, Saddar Road, Peshawar, Pakistan; and House Number 32, F-2, Khusal Khan Khattak Road, University Town, Peshawar, Pakistan. (See alternate addresses under Afghanistan);

(7) Ologh Beg International Forwarders Ltd., 127-128, Times Center, Saddar Road, Peshawar, Pakistan; and House Number 32, F-2, Khusal Khan Khattak Road, University Town, Peshawar, Pakistan. (See alternate address under Afghanistan); and

(8) Raaziq International (Pvt.) Ltd., House Number 32, F-2, Khusal Khan Khattak Road, University Town, Peshawar, Pakistan.

This rule amends the EAR to implement changes to the Entity List (Supplement No. 4 to part 744) on the basis of the annual review of the Entity List conducted by the ERC, in accordance with the procedures outlined in Supplement No. 5 to part 744 (Procedures for End-User Review Committee Entity List Decisions). The changes from the annual review of the Entity List that are approved by the ERC are implemented in stages as the ERC completes its review of entities listed under different destinations on the Entity List. This rule implements the results of the annual review for entities located in Canada.

On the basis of decisions made by the ERC during the annual review, this rule amends two entries currently on the Entity List under Canada by adding alternate addresses, as follows:

(1) Ali Bakhshien, 909-4005 Bayview Ave., Toronto, Canada M2M 3Z9; and HSBC Tower, Suite 502, 3601 Highway 7 East, Markham, Ontario, L3R 0M3, Canada; and

(2) Kitro Corporation, 909-4005 Bayview Ave., Toronto, Canada M2M 3Z9; and HSBC Tower, Suite 502, 3601 Highway 7 East, Markham, Ontario, L3R 0M3, Canada.

Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting or reexporting carrier, or en route aboard a carrier to a port of export or reexport, on November 21, 2011, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR) so long as they are exported or reexported before December 6, 2011. Any such items not actually exported or reexported before midnight, on December 6, 2011, require a license in accordance with the EAR.

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 12, 2011, 76 FR 50661 (August 16, 2011), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by the OMB under control numbers 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 43.8 minutes for a manual or electronic submission. Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule. You may send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget (OMB), by email to Jasmeet_K._Seehra@omb.eop.gov, or by fax to (202) 395-7285.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public comment and a delay in effective date are inapplicable because this regulation involves a military or foreign affairs function of the United States. ( See 5 U.S.C. 553(a)(1)). BIS implements this rule to protect U.S. national security or foreign policy interests by preventing items from being exported, reexported, or transferred (in country) to the persons being added to the Entity List. If this rule were delayed to allow for notice and comment and a delay in effective date, then entities being added to the Entity List by this action would continue to be able to receive items without a license and to conduct activities contrary to the national security or foreign policy interests of the United States. In addition, because these parties may receive notice of the U.S. Government's intention to place these entities on the Entity List once a final rule was published it would create an incentive for these persons to either accelerate receiving items subject to the EAR to conduct activities that are contrary to the national security or foreign policy interests of the United States and/or to take steps to set up additional aliases, change addresses and take other steps to try to limit the impact of the listing on the Entity List once a final rule was published. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

The Commission is rescinding rules and forms adopted under the Public Utility Holding Company Act (“PUHCA”), 1 and revising other rules and forms to correct outdated references to PUHCA, correct outdated references due to enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010  2 (“Dodd-Frank Act”), and make other ministerial corrections. 3 Congress repealed PUHCA effective 2006, 4 and the Dodd-Frank Act amended various provisions of the federal securities laws and removed references to PUHCA from those laws.

The Commission is amending: Organizational Rules 1, 2, 20b, 30-5, 30-6, 30-7, 30-14, 43, 80, 80a, 80c, 80f, 304, 307, 308, 551, and 800; Rules of Practice 190 and 210; Informal and Other Procedures Rules 1, 2, 3, 6, and 9; Regulation S-X, Items 1-01, 3-18, and 3A-05; Regulation S-K, Item 405; Regulation C, Items 400, 404, 412, 414, 421, 423, 427, 430, 431, 436, 460, 470, 471, and 479; and Regulation S-T, Items 11, 101, 102, 104, 201, 202, 306, 311, 402, and 501, and rules 122 and 176 under the Securities Act of 1933 (the “Securities Act”); rules 0-4, 11d1-1, 13f-1, 14d-4, 14d-7, 16a-1, 16a-2, 16a-3, and 16b-1 under the Securities Exchange Act of 1934 (the “Exchange Act”); Regulation FD, Item 100; rules 0-4, 0-6, 7a-29, and 19a-1 under the Trust Indenture Act of 1939; rules 0-4 and 8b-32 under the Investment Company Act of 1940 (“Investment Company Act”); rule 0-4 under the Investment Advisers Act of 1940 (“Investment Advisers Act”); the General Instructions to Forms 3, 4 and 5; and the General Instructions to Form SE. The Commission is removing and reserving 17 CFR part 250, 17 CFR part 251, 17 CFR part 256, 17 CFR part 257, and 17 CFR part 259 because each solely contains rules, forms, or interpretive releases that applied exclusively under PUHCA.

Section 553 of the Administrative Procedure Act (“APA”) provides that when an agency for good cause finds that notice and public comment are inapplicable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and opportunity for public comment. 5 The Commission has determined that there is good cause for making today's action final without prior proposal and opportunity for comment. 6 Because Congress repealed PUHCA, the Commission's action to amend rules to correct outdated references and to eliminate rules, forms, and interpretive releases concerning, and authorized by, statutory provisions that are no longer in effect is ministerial in nature. Similarly, other changes to the Commission's rules to correct outdated or inaccurate references are also ministerial in nature. Therefore the Commission is adopting the rule amendments without prior notice and comment. For the same reasons, the Commission finds good cause for making the rule changes effective upon publication in the Federal Register . 7

The amendments the Commission is adopting do not make substantive or material modifications to any collection of information requirements as defined by the Paperwork Reduction Act of 1995, as amended. 8

The Commission is sensitive to the costs and benefits of its rules. The rule amendments the Commission is adopting today are ministerial actions that correct or eliminate outdated references and therefore will have no separate economic effect, including no effect on competition.

We are adopting these amendments consistent with the repeal of PUHCA in section 1263 of the Energy Policy Act of 2005 and pursuant to the Securities Act, 15 U.S.C. 77a et seq.; the Exchange Act, 15 U.S.C. 78a et seq.; the Trust Indenture Act, 15 U.S.C. 77aaa et seq.; the Investment Company Act, 15 U.S.C. 80a; and the Investment Advisers Act, 15 U.S.C. 80b.

For reasons set forth in the preamble, Title 17, Chapter II of the Code of Federal Regulations is amended as follows:

Background

On December 19, 2006, the IRS and the Treasury Department published a notice of proposed rulemaking (REG-125632-06) in the Federal Register (71 FR 75898) that included regulations under section 368 (the Temporary Regulations). These regulations provided guidance regarding whether the distribution requirement under sections 368(a)(1)(D) and 354(b)(1)(B) is satisfied if there is no actual distribution of stock or securities. On December 18, 2009, the IRS and the Treasury Department published final regulations (TD 9475) in the Federal Register (71 FR 75879) that, in addition to providing guidance regarding the qualification of certain transactions as reorganizations described in section 368(a)(1)(D), amended the regulations under § 1.358-2(a)(2)(iii) to provide that in the case of a reorganization in which the property received consists solely of non-qualifying property equal to the value of the assets transferred (as well as a nominal share described in the final regulations), the shareholder or security holder may designate the share of stock of the issuing corporation to which the basis, if any, of the stock or securities surrendered will attach. The IRS and the Treasury Department issued these regulations in response to comments that, in a transaction where the consideration received consists solely of cash and a nominal share, the mechanics of preserving basis, if any, in the shares of the stock or securities surrendered in the basis of the stock of the issuing corporation were unclear under current law.

The IRS and the Treasury Department have become aware that some maintain these rules, as written, could be interpreted to allow an inappropriate allocation of basis by persons that do not own actual shares of stock in the issuing corporation. This interpretation would most likely be asserted in the context of a lower-tier reorganization transaction involving corporations in two different ownership chains that have the same ultimate indirect shareholder(s). Specifically, the argument is that the rules could be interpreted to allow persons who do not own actual shares of stock of the issuing corporation to allocate the adjusted basis of the nominal share to an actual share of stock of the issuing corporation directly owned by someone else before the nominal share is deemed to be further transferred through the chains of ownership to reflect the actual ownership of the target and issuing corporations. Under this interpretation of the rules, the actual share to which the basis was allocated could then be sold to recognize a loss, and taxpayers would avoid losing the nominal share's basis, which would otherwise be zero following its deemed transfer through the chains of ownership to the actual shareholder of the issuing corporation.

For example, assume that J owns all the stock of corporations X and Y, and X owns all of the stock of corporation T. X has a $150 basis in the T stock. The corporations do not join in the filing of a consolidated return. T sells all of its assets to Y for $100 cash, their fair market value, and liquidates. Pursuant to § 1.368-2(l), Y will be deemed to issue a nominal share of Y stock to T in addition to the $100 actually exchanged for the T assets, and T will be deemed to distribute the nominal share of Y stock to X. X will have a basis of $50 in the nominal share of Y stock under section 358(a). Pursuant to § 1.368-2(l), the nominal share of Y stock is deemed to be further transferred to J in order to reflect the actual ownership of Y. J's basis in the nominal share of Y stock would be zero under section 301(d). However, some argue that the rule, as currently written, could be interpreted as allowing X to allocate the $50 of basis in the nominal share to an actual share of Y stock owned by J prior to the nominal share of Y stock being deemed to be further distributed to J.

The IRS and the Treasury Department did not intend for the final regulations to allow such an inappropriate allocation of basis and do not believe the current regulations support such an allocation. Accordingly, the IRS and the Treasury Department are proposing rules in the Proposed Rules section in this issue of the Federal Register , to clarify that, in certain reorganizations where no stock or securities of the issuing corporation is issued and distributed in the transaction, the ability to designate the share of stock of the issuing corporation to which the basis, if any, of the stock or securities surrendered will attach applies only to a shareholder that owns actual shares in the issuing corporation.

The preamble to the final regulation noted that the IRS and the Treasury Department believe the ability to designate any remaining basis is consistent with current law regarding basis determination, as a similar result would occur under § 1.358-2 if an amount of issuing corporation stock was actually issued in the transaction (74 FR 67053; 74 FR 67056; TD 9475). To complete the analogy, however, in the case where stock is actually issued in a lower-tier transfer, such stock would then be transferred through chains of ownership, and in the process, if basis in the stock exceeded value, the basis in the shares would be reduced to the fair market value of the shares in the hands of the distributee, under section 301(d). Accordingly, in such a case, basis in excess of the value of the issuing corporation shares would generally be preserved only where the shareholder of the transferor corporation does not further distribute the stock of the issuing corporation in a transaction to which section 301 applies.

Consistent with this view, these temporary regulations clarify and amend the final regulations (TD 9475) under § 1.358-2(a)(2)(iii) by providing that if an actual shareholder of the issuing corporation is deemed to receive a nominal share of stock of the issuing corporation described in § 1.368-2(l), such shareholder must, after allocating and adjusting the basis of the nominal share in accordance with the rules of this section and § 1.358-1, and after adjusting the basis in the nominal share for any transfers described in § 1.358-1, designate the share of stock of the issuing corporation to which the basis, if any, of the nominal share will attach.

The IRS and the Treasury Department also are clarifying the effective date for a 2009 amendment to the regulations under § 1.358-2(a)(iii).

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. For the applicability of the Regulatory Flexibility Act, please refer to the cross-reference notice of proposed rulemaking published elsewhere in this Federal Register. Pursuant to section 7805(f) of the Internal Revenue Code, these regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

The principal author of these regulations is Lisa A. Fuller of the Office of the Associate Chief Counsel (Corporate). However, other personnel from the IRS and the Treasury Department participated in their development.

Accordingly, 26 CFR part 1 is amended as follows:

This action is directed to the public in general. It simply announces the submission of a draft final rule to the Secretary of USDA and does not otherwise affect any specific entities. This action may, however, be of particular interest to pesticide registrants (NAICS code 325320) who sponsor or conduct human research for pesticides, and to other entities that sponsor or conduct human research for pesticides (NAICS code 541710). Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be interested in this action. If you have any questions regarding this action, consult the person listed under FOR FURTHER INFORMATION CONTACT .

As described in the Agency's semi-annual Regulatory Agenda, the draft final rule would take final action with regard to the proposed rule issued on February 2, 2011 (76 FR 5735). The amendments would make no changes to the Common Rule or EPA's codification of the Common Rule. EPA proposed these amendments as a result of a settlement agreement.

Section 25(a)(2)(B) of FIFRA requires the EPA Administrator to provide the Secretary of USDA with a copy of any draft final rule at least 30 days before signing it in final form for publication in the Federal Register . The draft final rule is not available to the public until after it has been signed by EPA. If the Secretary of USDA comments in writing regarding the draft final rule within 15 days after receiving it, the EPA Administrator shall include in the final rule, when published in the Federal Register , the comments of the Secretary of USDA, if requested by the Secretary of USDA, and the EPA Administrator's response to those comments. If the Secretary of USDA does not comment in writing within 15 days after receiving the draft final rule, the EPA Administrator may sign the final rule for publication in the Federal Register any time after the 15-day period.

No. This document is not a rule. It is merely a notification of submission to the Secretary of USDA. As such, none of the regulatory assessment requirements apply to this document.

No. This action is not a rule for purposes of the Congressional Review Act (CRA), 5 U.S.C. 804(3), and will not be submitted to Congress and the Comptroller General. EPA will submit the final rule to Congress and the Comptroller General as required by CRA.

I. Background

The SIP is a living document which the State revises as necessary to address its unique air pollution problems. Therefore, EPA, from time to time, must take action on SIP revisions containing new and/or revised regulations as being part of the SIP. On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference Federally-approved SIPs, as a result of consultations between EPA and the Office of the Federal Register (OFR). The description of the revised SIP document, IBR procedures and “Identification of plan” format are discussed in further detail in the May 22, 1997 Federal Register document. On April 21, 2000 (65 FR 21315), EPA published a Federal Register action beginning the new IBR procedure for Virginia. On September 8, 2004 (69 FR 54216), November 3, 2005 (70 FR 66769), July 16, 2007 (72 FR 38920), and July 13, 2009 (74 FR 33332) as corrected on December 18, 2009 (74 FR 67077), EPA published updates to the IBR material for Virginia.

Since the publication of the last IBR update, EPA has approved the following regulatory changes to the following Virginia regulations:

In this action, EPA is doing the following:

Announcing the update to the IBR material as of October 15, 2011.

1. Consolidating Section 5-10-20 by reducing the number of entries from seven to two.

2. Placing the entries for 9VAC5 Chapter 220 before those of 9VAC5 Chapter 230.

3. Correcting a typographical error in the title heading entry for Section 5-40-20.

4. Correcting typographical errors in the “Title/subject” column for Sections 5-30-70 and 5-140-3400.

5. Correcting the date in the “State effective date” column for Sections 5-4-7410 and 5-40-7420,

6. Correcting in the “EPA effective date” column:

a. The date in Sections 5-40-7070 and 5-50-20.

b. The Federal Register citation for all of the entries in 9VAC5 Chapter 230.

7. Correcting the text in the “Explanation [former SIP citation]” column for Section 5-130-10.

Correcting the date format in the “State effective date” column for Global Stone Chemstone Corporation.

1. Restoring the entry for Documents Incorporated by Reference (9VAC5-20-21, Sections B. and E.1.)., which had been inadvertently removed from the paragraph (e) table. EPA had approved this entry as a revision to the Virginia SIP on January 18, 2011 (76 FR 2829), with a SIP effective date of March 21, 2011.

2. Correcting the date format for the following entries:

a. Documents Incorporated by Reference (9VAC5-20-21, Paragraphs E.4.a. (21) and (22)).

b. Carbon Monoxide Maintenance Plan for Arlington County & Alexandria City.

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

Under the Clean Air Act (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 rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

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

40 CFR part 52 is amended as follows:

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

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

On May 6, 2011, EPA determined that the submittal for PCAPCD 236, PCAPCD 238, and SMAQMD 451 met the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.

We approved earlier versions of PCAPCD 236, PCAPCD 238, and SMAQMD 451 into the SIP on April 30, 1996 (61 FR 18962), February 12, 1996 (61 FR 5288), and January 24, 1985 (50 FR 3338), respectively. The PCAPCD adopted revisions to the SIP-approved versions on October 14, 2010 and CARB submitted them to us on April 5, 2011. There are no subsequent submittals of the PCAPCD rules. The SMAQMD adopted revisions to the SIP-approved version of Rule 451 on October 28, 2010 and CARB submitted them to us on April 5, 2011. While we can act on only the most recently submitted version, we have reviewed materials provided with previous submittals.

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. The submitted rules control emissions from coatings and strippers used on wood products, wood paneling, and miscellaneous metal parts and products. EPA's technical support documents (TSDs) have more information about these rules.

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each major source in nonattainment areas (see sections 182(a)(2) and (b)(2)), and must not relax existing requirements (see sections 110(l) and 193). The PCAPCD and SMAQMD regulate an ozone nonattainment area (see 40 CFR part 81), so the rules must fulfill RACT.

Guidance and policy documents that we use to evaluate enforceability and RACT requirements consistently include the following:

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. PCAPCD 236, PCAPCD 238, and SMAQMD 451 have a few rule relaxation concerns, but we do not consider them deficiencies. The TSDs have more information on our evaluation.

The TSDs describe additional rule revisions that we recommend for the next time the local agency modifies the rules.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules 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 December 21, 2011, 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 January 20, 2012. This will incorporate these rules into the federally enforceable SIP.

Please note that if EPA receives adverse comment 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).

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 January 20, 2012. 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:

A. Background

Pursuant to 5 U.S.C. 5738 the Administrator of General Services is authorized to prescribe necessary regulations to implement laws regarding Federal employees when assigned a TCS or when otherwise officially relocated. The overall implementing authority is the Federal Travel Regulation (FTR) (41 CFR chapters 300-304).

This final rule incorporates language based on Public Law 110-181, the National Defense Authorization Act for Fiscal Year 2008, section 1104, and 5 U.S.C. 5737a, to allow agencies to establish policies to provide for the storage, without charge, or for the reimbursement of the cost of storage, of a POV that is owned or leased by a covered employee of that agency (or by a dependent of such an employee), when the employee is assigned a TCS in support of a contingency operation. The term “contingency operation” has the meaning given such term in 10 U.S.C. 1482a(c)(2) to include humanitarian operations, peacekeeping operations, and similar operations.

This final rule also amends and clarifies other clerical issues pertaining to FTR Part 302-3, (Subpart B—Transferred Employees—Table H—Temporary Change of Station (TCS), and Subpart E—Employee's Temporary Change of Station) and Part 302-9 (Allowances for Transportation and Emergency Storage of a Privately Owned Vehicle).

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action” and is not economically significant, under section 3(f) of Executive Order 12866.

This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the revisions are not considered substantive. This final rule is also exempt from the Regulatory Flexibility Act per 5 U.S.C. 553 (a)(2) because it applies to agency management or personnel. However, this final rule is being published to provide transparency in the promulgation of Federal policies.

The Paperwork Reduction Act does not apply because the changes to the FTR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

This final rule is also exempt from congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.

For the reasons set forth in the preamble, under 5 U.S.C. 5721-5738, 41 CFR parts 302-3 and 302-9 are amended to read as follows:

Pursuant to 5 U.S.C. 5707, the Administrator of General Services is authorized to prescribe necessary regulations to implement laws regarding Federal employees who travel in the performance of official business away from their official stations. Similarly, 5 U.S.C. 5738 mandates that the Administrator of General Services prescribe regulations relating to official relocation. In addition, the Presidential Memorandum “Delegation Under Section 2(a) of the Special Agent Samuel Hicks Families of Fallen Heroes Act”, dated September 12, 2011, published in the Federal Register on September 15, 2011 (76 FR 57621), delegates to the Administrator of General Services the authority to issues regulations under Public Law 111-178, the Special Agent Samuel Hicks Families of Fallen Heroes Act, codified at 5 U.S.C. 5724d, relating to the payment of certain expenses when a covered employee dies as a result of injuries sustained in the performance of his or her official duties. The overall implementing authority is the Federal Travel Regulation (FTR), codified in Title 41 of the Code of Federal Regulations, Chapters 300-304 (41 CFR Chapters 300-304).

This interim rule incorporates language based on Public Law 111-178, the Special Agent Samuel Hicks Families of Fallen Heroes Act, codified at 5 U.S.C. 5724d, to allow agencies to provide for relocation of dependents and the household effects of a “covered employee” whose death occurred as a result of personal injury sustained while in the performance of the employee's duty as defined by the agency. The term “covered employees” means: (A) A law enforcement officer, as defined in 5 U.S.C. 5541; (B) an employee in or under the Federal Bureau of Investigation who is not described in subparagraph (A); and (C) a Customs and Border Protection officer, as defined in 5 U.S.C. 8331(31).

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.

This interim rule will not have significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the revisions are not considered substantive. This interim rule is also exempt from Regulatory Flexibility Act per 5 U.S.C. 553(a)(2), because it applies to agency management or personnel. However, this interim rule is being published to provide transparency in the promulgation of Federal policies.

The Paperwork Reduction Act does not apply because the changes to the FTR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

This interim rule is also exempt from congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.

For the reasons set forth in the preamble, GSA amends 41 CFR part 303-70 as set forth below:

This is a summary of the Commission's Second Report and Order, ET Docket Nos. 04-37 and 03-104, FCC 11-160, adopted October 20, 2011 and released October 24, 2011. 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: http://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. In this Second Report and Order (Second Order), the Commission fundamentally affirms its rules for Access Broadband over Power Line (Access BPL) systems. The Commission also makes certain minor modifications to improve and clarify the rules. These rules provide an appropriate balance between the dual objectives of providing for Access BPL technology that has potential applications for broadband and Smart Grid while protecting incumbent radio services against harmful interference.

2. The Commission adopted rules for Access BPL systems in 2004 and affirmed those rules in 2006. The BPL rules were challenged by the national association for amateur radio, formally known as the American Radio Relay League (ARRL) in the United States Court of Appeals for the District of Columbia in ARRL v. FCC. In ARRL v. FCC, the court directed the Commission to: (1) Make part of the rulemaking record unredacted versions of several staff technical studies which the Commission considered in promulgating the rules, (2) provide a reasonable opportunity for public comment on those studies, and (3) provide a reasoned explanation of its choice of the extrapolation factor for use in measuring radiated emissions from Access BPL systems. In response, the Commission issued a Request for Further Comment and Further Notice of Proposed Rulemaking in this proceeding ( RFC/FNPRM ). In the RFC/FNPRM, the Commission took its first step in responding to the directives of the court in ARRL v. FCC and also took that opportunity to review the Access BPL extrapolation factor and propose certain changes to the BPL technical rules that appeared appropriate in view of new information and further consideration of this matter. In this Second Order, the Commission completes its action addressing the court's concerns and its proposals in the RFC/FNPRM. It finds that the information submitted in response to the RFC/FNPRM does not warrant any changes to the emissions standards or the extrapolation factor. However, the Commission is making several refinements to its Access BPL rules. In particular, it is: (1) Modifying the rules to increase the required notch filtering capability for systems operating below 30 MHz from 20 dB to 25 dB; (2) establishing a new alternative procedure for determining site-specific extrapolation factors generally as described in the RFC/FNPRM, and (3) adopting a definition for the “slant-range distance” used in the BPL measurement guidelines to further clarify its application. The Commission finds that the benefits of the changes to the rules outweigh their regulatory costs.

3. Throughout this proceeding and in its appeal to the court, the ARRL has argued that more restrictive technical standards are needed to protect the amateur radio service from interference caused by leakage of radiofrequency (RF) emissions from Access BPL systems. The Commission initially crafted rules for BPL systems that were based on our existing emission standards for carrier current communications systems—narrow-band devices that couple RF energy onto power line wiring for communication purposes—with a number of additional requirements to promote avoidance and resolution of harmful interference to licensed services that might occur in the context of BPL operations. The Commission subsequently affirmed those rules in response to petitions for reconsideration by various parties, including ARRL. In this process, it has specifically rejected as unnecessary repeated requests by ARRL for tighter emissions controls on Access BPL operations. In response to the court's direction, it provided opportunity in the RFC/FNPRM for interested parties to address the BPL technical rules and the information developed by our staff that we considered in establishing those rules, explained its rationale for the extrapolation factor used in measuring BPL emissions, expressed its tentative satisfaction with the extrapolation factor adopted, while soliciting comment on whether another value would be more appropriate, and proposed a procedure for determining site-specific extrapolation factors. The Commission has completed its response to issues raised under the court's directive.

4. The Commission has established a regime of rules for Access BPL systems that will provide a robust environment for the development and deployment of this important new technology option for delivery of broadband internet/data services while at the same time minimizing the potential for interference to licensed services caused by leakage from power lines of the RF energy used by BPL transmissions. As observed in the BPL Order, there is some potential for increased harmful interference from BPL operations, particularly in locations within a short distance of the power lines used by this technology. Consistent with our responsibilities for managing the interference potential of devices which can interfere with radio under Section 302 of the Communications Act, the Commission has developed a set of rules for BPL devices and systems that attempts to minimize instances of interference while allowing BPL systems to operate in a viable manner to serve the needs of the American public. In this regard, the Commission has stated and continues to hold that, on balance, the benefits of Access BPL for bringing broadband services to the public are sufficiently important and significant so as to outweigh the limited increase in potential for harmful interference that may arise. The Commission also agrees with NTIA that while some cases of harmful interference may be possible from Access BPL emissions at levels at or below the part 15 limits, the potential benefits of Access BPL service warrant acceptance of a negligible risk of harmful interference that can be managed and corrected as needed on a case-by-case basis.

5. To minimize the potential for harmful interference, facilitate its resolution where it may occur, and address cases where its possible occurrence could impact critical services, the Commission adopted additional regulatory measures beyond the emissions limits in the part 15 rules. These additional measures generally require Access BPL operators to reduce emissions or avoid operation on certain frequencies or in certain locations in order to protect licensed services, to use equipment that can alter its operation by changing frequencies to eliminate harmful interference, to provide information that will assist the public in identifying locations where Access BPL operations are present and provide notice to radio users before commencing local BPL operations in a publicly accessible database. In this manner, the Access BPL rules provide an effective means for limiting harmful interference and ensuring that any instances of harmful interference that may occur can be quickly identified and resolved. As emphasized in the BPL Order, Access BPL systems will continue to be treated as unlicensed part 15 devices and as such will be subject to the conditions in § 15.5(b) of the rules that they not cause harmful interference and that they cease operation if they do cause such interference, as required by our rules. Upon examination of the information and comments received in response to the RFC/FNPRM, the Commission continues to believe that these measures are adequate and appropriate for managing the potential for harmful interference to all licensed radio services that operate on the bands used internally by BPL systems, including the amateur radio service.

6. The Commission is not persuaded by ARRL's newest technical submissions, including the reports/standards referenced in its November 2010 and June 2011 ex parte comments, or its assertions regarding the information in the unredacted presentations and in the additional information it recently introduced into the record in July 2009 that our assessment of the interference potential from BPL operations was incorrect or inappropriate, or that modifications to the BPL emissions limits and other technical rules to provide additional protection for the amateur service are warranted. While there is much valuable and valid information and analysis in ARRL's technical presentations, there are additional considerations that previously led us to draw different conclusions and still lead us to maintain those conclusions now.

7. With regard to the redacted portions of the staff presentations and the preliminary information from early staff work that was released in July 2009, the Commission was, of course, aware of that content and it was also aware of other considerations and facts that bear on the various BPL technical issues. Notwithstanding ARRL's apparent belief that the full content of the staff presentations should have led us to the conclusion it prefers, the Commission found, and continues to find, differently with respect to the regulatory measures that are needed to protect the amateur service from interference from BPL operations. The presentations in those informally conducted experiments were part of our initial internal investigation of BPL and, while there is value in them, they are not the sole source of our information on BPL performance. In this regard, the Commission considered all of the available information on BPL systems and their performance, submissions in the comments and other publicly available information. It also observes that some of the staff presentations on which ARRL focuses were of experimental systems that used early implementations of BPL equipment, developed before the BPL Order, that do not appear to have complied with the new rules; additionally, information on other system implementations, particularly our work with the Manassas, VA system, showed different performance characteristics than the systems ARRL criticized. In some cases, ARRL simply (and incorrectly) draws different conclusions from those presentations than we do. Also, the assessments and recommendations in the redacted portions of the presentations merely reflect the views of the Laboratory engineers who performed the testing and analysis; they do not necessarily reflect the consensus view of other engineers, the management of the Laboratory or of OET. Indeed, individual views are often conflicting, but are encouraged in the interest of producing vigorous debate to lead to a thoroughly considered recommendation and decision.

8. In the BPL Order, the Commission, with concurrence from NTIA, concluded that the current emission limits will restrict Access BPL systems to low emitted field strength levels in comparison to the signals of licensed radio operations. It found that the effect of these limits will be to constrain the harmful interference potential of these systems to relatively short distances from the power lines that carry the BPL signals. The Commission also recognized that some radio operations in the bands being used for Access BPL, such as those of amateur radio licensees, may occur at distances sufficiently close to power lines as to make harmful interference a possibility. The Commission stated that it believed those situations can be addressed through interference avoidance techniques by the Access BPL provider such as frequency band selection, notching, or judicious device placement, and it adopted rules to facilitate such solutions.

9. The Commission agreed with ARRL that Access BPL on overhead lines is not a traditional point-source emitter, but not with its argument that Access BPL devices would cause power lines to act as miles of transmission lines all radiating RF energy along their full length. In this regard, the Commission observed that the part 15 emission limits for carrier current systems have proven very effective at controlling interference from such systems. Also, it indicated that the design and configuration of Access BPL systems would be inconsistent with the development of cumulative emission effects for nearby receivers. The Commission further concluded that because the BPL emissions level decreases significantly with distance perpendicular from the line, the potential for interference also decays rapidly with distance from the line.

10. The Commission recognized that Access BPL systems present concerns for licensed users in the high frequency (HF) and lower portions of the very high frequency (VHF) bands, given the propagation characteristics of RF signals in the range of frequencies being used for these systems, the diversity of users of these frequencies, and the fact that Access BPL devices could be installed at many locations in an area. While it concluded that there is little likelihood that harmful interference would occur from Access BPL operations at the signal levels allowed under the current part 15 emission limits, it acknowledged that such interference could occur in limited situations despite the intentions of BPL operators. To address this interference potential, the Commission required BPL operators to comply with additional interference mitigation techniques. It stated that such steps should be taken particularly in those cases where the occurrence of interference would affect critical services or where interference could be anticipated to occur. The interference mitigation measures for critical services include exclusion from operating on certain frequency bands and exclusion from operation in certain areas. For all services, the interference mitigation provisions require that BPL system operators have the ability to remotely cease operation or apply frequency avoidance (notching) on bands where licensed services are receiving interference. BPL operators were required to be able to notch their operations on affected bands to a level 20 dB below the part 15 emissions limit for frequencies below 30 MHz ( i.e., 1/100th of the emissions limits for other unlicensed unintentional radiators).

11. In the BPL Reconsideration Order, the Commission affirmed its selection of 20 dB below the part 15 emissions limit as the minimum notching capability for frequencies below 30 MHz. It also revised the rules to specify that where an Access BPL operator implements such notching, the operator need not provide further protection to mobile operations, nor will the operator be required to resolve complaints of harmful interference to mobile operations by taking steps over and above implementing the “notch.” The Commission found that, while this level may be above the noise floor, reception of signals in mobile operating conditions is generally not reliable at levels at or below that level and thus does not warrant protection.

12. The Commission disagrees with ARRL that the recently released materials show interference potential from Access BPL systems to be significantly greater than that which we anticipated in the BPL Order, that such interference will be preclusive of amateur operations over large areas, or that the current rules are not adequate to resolve any interference that might occur. Rather, ARRL's in-depth focus on that material is in some aspects consistent with the Commission's own assessments, in other aspects incorrect, and, importantly, in many aspects does not account for the real world conditions affecting the propagation of RF emissions at HF frequencies. While ARRL provides significant information on the standard engineering principles concerning the attenuation rate of emissions from line emitters, it is mistaken as to how the attenuation rate should be viewed for purposes of measuring BPL emissions. In this regard, the Commission again concludes that 40 dB/decade is a best estimate of the expected attenuation rate/extrapolation factor in the conditions in which measurements are made under the Access BPL measurement guidelines. The Commission finds no information in the comments or the newly submitted information in ARRL's November 2010 and June 2011 ex parte submissions that would warrant modification of the Access BPL rules to require notching of all amateur bands at notch depths of at least 35 dB, or otherwise provide additional protection for the amateur service. However, in reviewing the requirement that Access BPL systems be capable of reducing their emissions by 20 dB in a given frequency band and current developments in BPL equipment, the Commission now finds that it would be appropriate to increase this required “notching” capability by 5 dB, to 25 dB for BPL systems operating below 30 MHz. It responds to the comments with respect to each of these sets of materials sequentially listed here.

13. In its comments, ARRL argues that the unredacted staff presentations show that:

i. Access BPL is not a point-source emitter; it is a distributive system that has significant interference potential over a wide area at significant distances from (and along) the power line carrying BPL signals. It contends that the Commission's measurements show that there is virtually no signal decay along the power line 230 meters from the coupler.

ii. The proper distance extrapolation factor for assumed signal decay with distance from the power line is much closer to 20 dB/decade of distance (20 log R) than to the 40 dB/decade of distance (40 log R) adopted by the Commission for frequencies below 30 MHz.

iii. Access BPL has a considerably higher interference potential to licensed radio services than the Commission concluded in the BPL Order if operated at the maximum radiated emission levels permitted by the Commission's part 15 rules (and the BPL rules adopted in the BPL Order ). Specifically, interference to licensed mobile radio receivers is very likely for very long distances along a power line. The presentations also show that systems operating at the part 15 emission limits will be at least 25-35 dB stronger than the median values of man-made noise at 30-meters distance. Extrapolating this to a mobile antenna closer to the lines results in an even higher noise level.

iv. The Commission erred in concluding that mobile Amateur stations would be protected from interference if, in response to an interference complaint, the BPL operator reduced the BPL radiated emission level from the offending portion(s) of the BPL system by 20 dB below the maximum radiated emission level permitted for part 15 devices generally. That remedy falls far short of reducing BPL noise to the level of ambient noise in residential environments found by Commission's technical staff, and falls far short of reducing BPL wideband noise levels to the point that mobile communications can be conducted in areas substantial distances from the power line.

v. Measurement of BPL radiated emissions should be done at heights not lower than in the same horizontal plane as the overhead power line.

14. First, the Commission agrees with ARRL that a BPL system does not behave as a point-source emitter. Neither, however, can it be analyzed as a line emitter. Analysis and prediction of RF propagation in the HF frequency region is extremely complex and difficult, and particularly at locations close to the ground, as the Commission, ARRL and many other commenters have acknowledged throughout this proceeding. The Commission's intent in the BPL Order was not to say that power lines are point-source radiators, but rather simply that the interference potential lessens with distance down the line from the coupler—though this occurs at rates that can vary significantly with power line topology.

15. ARRL points out that one of the video files in the staff materials released by the Commission in July 2009 shows interference to mobile reception of signals in the amateur 20-meter band (14.0-14.35 MHz). Specifically, it states that the video of the Briarcliff Manor system recorded on August 17, 2004 (Briarcliff Video #5) shows in a graphic, compelling manner the severe and constant interference caused by the BPL system to amateur reception over huge geographic areas which obviously precluded essentially all Amateur HF communications in the area. It submits that no objective observer of this video could possibly conclude that the level of BPL radiated emissions permitted by the Commission's Part 15 rules is acceptable. ARRL is correct that the interference that is apparent on Briarcliff Video #5 is not acceptable and would not be permissible under either our part 15 rules or the system operator's experimental license. However, while interference can occur from BPL operations along a stretch of power lines as shown in that and other videos in the preliminary materials released in July 2009, the Commission did not and do not find this example to substantiate a need for more restrictive rules on BPL systems. First, it does not appear that any of the mitigating features that are required in the rules had been applied to this system. In addition, our staff did contact the licensee about interference from that system several times over the course of its operation and the operator took steps first to cease operation on the amateur frequencies and then to install new equipment that had notching capability. Subsequent examination of that system by field agents of the Commission's Enforcement Bureau found no interference, which substantiates the effectiveness of our rules when properly observed. Also, as indicated by the primary and secondary title screens of Briarcliff Video #5, the system was notched only in the 20-meter amateur band, and not in the 15-meter amateur band, for which that video was recorded. Thus, the Commission did not and do not consider the interference that appears in Briarcliff Video #5 to be representative of the performance of a system operating in accordance with the set of rules it set forth for Access BPL systems.

16. The Commission also sees no merit in ARRL's argument that statements on the same presentation slide concerning an interference problem from the Phonex carrier current system to ARINC aeronautical communications and opining that compliant Access BPL “may be worse” should have served as a factor in its decision on protection for the amateur service. In the BPL Order, the Commission recognized the critical nature of aeronautical communications and, given the free space propagation path from a power line to an aircraft, excluded Access BPL systems from operating on frequencies used by that service. With respect to the Phonex case, the Commission also observes that the Phonex system at issue might not have been the source of the interference with ARINC's communications and its performance therefore cannot be used as an empirical basis for establishing any benchmarks with respect to the interference potential of BPL systems.

17. ARRL next observes that another presentation slide in the Briarcliff Manor presentation recommends that the Commission “impose [a] 5 dB height correction [factor]” on measurements and a “20 log R extrapolation factor” if it is going to allow BPL on medium voltage (MV) overhead power lines and should use a 20 dB/decade extrapolation factor for signal decay with distance from the power line. It observes that the presentation states that this “reduces interference [from BPL] to fixed stations.” Basing the BPL emissions limits and measurement procedures on an attenuation rate of 1/R, i.e., 20 dB/decade would, of course, reduce signal levels and thereby provide additional protection to licensed services against interference. The Commission notes that the slide in question does not provide a “recommendation” as claimed by ARRL, rather, it only presented several options for other staff and management to consider in its deliberations. Further, as the Commission concluded previously, it does not believe that such additional protection is needed or warranted, but rather hold that the part 15 “no interference requirement,” the part 15 emissions limit for carrier current systems, and the interference mitigation measures it adopted in the BPL Order collectively provide sufficient protection to licensed services from the potential for harmful interference from Access BPL operations. The Commission also continues to find that the attenuation rate of emissions from power lines is typically higher than 20 dB/decade and varies with location. At distances within 30 meters of the power line and when using the slant-range measurement procedure prescribed in our measurement guidelines, 1/R 2 , i.e., 40 dB/decade, properly describes the expected attenuation rate at frequencies below 30 MHz, and variability around that rate is also expected.

18. It is also important to understand, as the Commission discussed in the RFC/FNPRM and ARRL largely ignores, that RF propagation in the lower frequencies ranges, and particularly at frequencies below 30 MHz, is greatly affected by environmental factors, so that there is significant variability in propagation from place to place. These include ground absorption and conductivity, terrain, vegetation, and the presence of structures and other man-made objects, including additional power lines arrayed on pole/towers in the near-field of emissions from a power line carrying Access BPL transmissions. In some cases, emissions from BPL systems that are expected to be compliant with the rules will attenuate with distance at relatively high rates and be well below the part 15 limits while emissions from other systems, or even from the same system but at a different location, will attenuate at a relatively lower rate and exceed the part 15 limits. The Commission is aware of these variabilities in this complex operating environment and to account for it, has adopted additional provisions for mitigating harmful interference that are set forth in the rules. In addition, recognizing this variability, it did not base our assessment of interference potential on any standard performance factor, such as an attenuation rate by itself, but rather on the successful past performance of our existing standards and the availability of suitable approaches for managing the potential for harmful interference and correcting any harmful interference that may occur.

19. The Commission has also fully considered the issue of how to measure Access BPL emissions, including whether a 5 dB correction factor was needed for Access BPL measurements below 30 MHz. In the BPL Order, it concluded that the existing measurement procedure that provides for measurement of the magnetic field at 1-meter height with no correction factor was appropriate for measurements in that frequency region. There is no additional information in the presentation summaries that leads us to find that this decision should be changed.

20. ARRL points out that slide 20 of the Briarcliff Manor presentation listed options of notching or mandatory advance coordination for protection of low-VHF public safety channels and that the Commission did not adopt either of those options but instead put in place a notification requirement. It also observes that the same slide listed the 50-54 MHz amateur band that is typically used for both mobile and fixed operations and the Commission did not acknowledge the interference potential to amateur operations in that band and offered no remedy for it. In the BPL Order, the Commission determined that public safety systems, because of the often critical and/or safety-of-life nature of the communications they provide, merit the additional protection of advanced notice of BPL operations. The Commission stated that an advance notification would provide a public safety operator with an opportunity to assess whether there are portions of its geographic area of responsibility about which it should make special arrangements with the Access BPL operator in order to avoid interference. The Commission did not address the frequencies used by the amateur service on an individual basis, but rather concluded that amateur radio frequencies generally do not warrant the special protection of frequency exclusion that was afforded frequencies reserved for international aeronautical and maritime safety operations.

21. ARRL observes that slide 21 of the Briarcliff Manor presentation predicts the potential for BPL to cause interference to mobile operations to be “high” to “very high.” It further observes that the same slide has a table indicating that the interference distance to fixed stations would be 62 meters at 2-8 MHz and 400 meters at 8-30 MHz in areas where the noise levels were at the International Telecommunication Union (ITU) “residential” level. It contrasts these statements with our findings in the BPL Order that the potential of Access BPL systems was “low” and observes that in the case of mobile communications where a vehicle is close to the power lines, the potential for interference will indeed be higher. While the Commission again recognize that at some locations (including where nearby antennas are located above the height of the power line) the attenuation rate of Access BPL emissions will be lower and at other locations it will be higher, these levels are consistent with our interpretations that the interference potential is low such that it can be managed adequately with the additional interference mitigation measures and the “no harmful interference provisions” of part 15 that are also in our rules. In this regard, the distances from a power line to an amateur fixed receiver will be sufficiently short that if harmful interference were to occur, the recipient could readily identify its source and request that it be resolved. The Commission observes that International Broadband Electric Communications, Inc. (IBEC), a major operator of Access BPL systems, reports (with confirmation by ARRL in its comments) that it has been communicating with the local amateurs and emergency services in the areas it covers to implement a successful interference resolution process. It states that it has been able to resolve interference complaints, as they arise, under the framework of the existing Access BPL rules. This information provides confirmation of the processes and requirements the Commission established, when used in practice, are adequate to prevent most cases of harmful interference to licensed services, and to resolve quickly any instances of harmful interference that do occur.

22. Spectrum Notching. The rules provide for mitigation of BPL interference where it may occur by notching. In the BPL Order and the BPL Reconsideration Order, the Commission found that, for frequencies below 30 MHz, a 20-dB notch would appropriately address any harmful interference that might occur to mobile operations, given both the low signal levels allowed under the part 15 emission limits and the fact that a mobile transceiver is generally only in one place for a limited period and can readily be re-positioned to provide some separation from the Access BPL operation.

23. In its comments, ARRL argues that slide 13 of the Briarcliff Manor presentation summary references predictions from the NTIA Phase 1 Study that show that the noise floor would rise by more than 20 dB at nearly all points, and by 30 dB at most points, along a 340-meter modeled power line. It also notes that the slide states that in NTIA's measurement activities, NTIA took occasional samples of noise power along the line with the Access BPL system turned off and found noise levels lower than predicted by the ITU for residential areas. ARRL therefore contends that the 20-dB standard for the notching requirement is insufficient. The Commission initially noted that NTIA's sampling of noise power was only at a very limited number of locations and not sufficient to serve as the basis for a conclusion that the noise floor is lower than the levels recognized by the ITU. Further, there is not sufficient information in any of the submissions regarding changes in the noise floor to justify a change from our use of the well-established ITU-recommended levels for the noise floor in different environments.

24. In its November 2010 ex parte submission, ARRL provides additional comments that reference several recent domestic and international industry and governmental reports/standards to support its request for a 35-dB notch of all the amateur frequency bands. These documents include: (1) ITU-R Report SM.2158; (2) ITU-T G.9960; (3) IEEE P1901-2010; and (4) OFCOM Report on In-Home PLT devices. All of these documents mandate or recommend notching of the amateur frequencies. ITU-R Report SM.2158 states that the maximum allowable increase in the noise floor due to BPL emissions should not exceed 0.5 dB, based on the assumption that the fade margin of the amateur service in long distance communications is less than 1 dB. Based on this assumption, ARRL argues that a notch depth of 34 dB would be required if a 20-dB/decade extrapolation of the FCC emission limits is used and a notch depth of 43 dB would be needed if the existing extrapolation factor of 40-dB/decade is used.

25. In re-examining all of the information pertaining to the depth of the notching requirement, the Commission now finds that it would be appropriate to increase the required notching capability to be 5 dB greater than the 20 dB specification it initially adopted. Previously, the Commission observed that when operating with a 20-dB notch below 30 MHz, the maximum allowed emissions from an Access BPL system is 10 dBμV/m at the part 15 measurement distance of 30 meters, a level which is at or only modestly above the noise floor in the HF bands at most locations. The Commission's intention was that Access BPL emissions in a notched bandwidth would not be significantly greater than the background noise at the distances normally used for protection against harmful interference from part 15 unlicensed devices. The Commission also evaluated the potential for interference at closer distances that can occur when conducting mobile communications while traveling adjacent to roadside power lines. It observed that when extrapolated to values for the typical closest distance of a mobile antenna in motion from roadside power lines (approximately 6 meters horizontal distance and 8.5 meters vertical distance, for a slant range of 10.4 meters) and adjusted for the typical quasi-peak to average ratio of 4 dB for BPL devices operating at high duty factor, the part 15 limit corresponds to a root-mean-squared (RMS) field strength of 44 dBμV/m for frequencies at or below 30 MHz. A 20 dB reduction would limit emissions to 24 dBμV/m. The Commission concluded that given the high variability of the noise floor at HF frequencies, where increases of as much as 20 dB or more are common, mobile reception of relatively weak signals under 24 dBμV/m is generally intermittent and not reliable because both the received signal and the ambient noise levels vary up and down (the received signal and noise energy levels generally do not rise and fall together) as the vehicle moves.

26. In carefully reviewing the record on this issue, the Commission acknowledged ARRL's point that the modeling in the NTIA Phase 1 Study predicts that Access BPL emissions on frequencies below 30 MHz that are at the part 15 limit would raise the mobile radio noise floor at 15 MHz and 25 MHz by 30 dB in 59% of residential locations. After a 20-dB notch, the BPL remaining emissions would still produce a noise floor increase of about 10 dB for mobile operations in residential locations at those frequencies. As the Commission observed in the BPL Reconsideration Order, there is considerable variability around the median noise level, such that increases of as much as 20 dB are common and reduce the reliability of signals at the margin of expected reception. While, the Commission continues to believe that the significant variability in background noise levels limits the reliability of HF signals below 30 MHz such that BPL emissions at a level of 24 dBμV/m should not generally be considered harmful interference, it also understand that the 20 dB value for noise increases due to diurnal and seasonal factors is the maximum expected effect and that in many cases the daily variability in the noise floor levels will be somewhat less. The Commission have no specific information on the distribution of the diurnal and seasonal variability of noise floor levels; however, it believes that an increase of 5 dB in the required notching capability, or half the 10-dB current margin of BPL emissions affecting mobile reception above the residential noise floor, according to NTIA's estimates as supported by ARRL, would take a more conservative approach and provide protection for amateur mobile operations in more instances, while continuing to recognize the variability in emissions that limit the service to mobile amateur receivers. Given our understanding supported by the assertions in the record that most BPL operators are already using notches of at least 25 dB, the Commission would expect the cost imposed by this requirement to be minimal or nil. It finds that the benefits of providing additional protection for licensed services outweigh any potential additional costs to BPL providers. Such benefits include a more integrated environment where BPL devices may share spectrum with licensed users, with lesser concerns for potential harmful interference. BPL devices bring expanded benefits to electric utility companies by allowing them to monitor, and thereby more effectively manage their electric power distribution operations. BPL also brings “last-mile” delivery of broadband services to some rural and underserved areas.

27. With respect to the new information in ARRL's November 2010 ex parte submission, first the Commission is not persuaded that a 0.5 dB increase in the noise floor as used in the ITU-R Report SM.2158 is a reasonable assumption for the numerous reasons it stated with respect to the significant variability in background noise levels at HF frequencies. Further, it appears that the 0.5 dB number was used in the ITU Report without any discussion, analysis or other explicit rationale. The Commission further noted that in its June 2011 ex parte submission, ARRL mentions that ITU-R Recommendation SM.1879, which refers to the above report, does recommend that stations operating in the Amateur Service be protected t*** level such that noise at the protected station is not increased by more than 0.5 dB. Although ARRL provided calculations to relate the 0.5 dB increase in the noise floor with the part 15 limits to arrive at its requested 35-dB notch number, it again did not provide a rationale for using a 0.5 dB increase in the noise floor as the protection criterion at HF frequencies. With the exception of ITU-R Report SM.2158, the reports/standards submitted by ARRL in its November 2010 ex parte comments do not include any analysis that shows that 35 dB or some other figure is the proper level of notching needed to protect amateur operations, but rather simply state as their recommendations and requirements a notching depth that existing BPL equipment can meet. The Commission also recognizes the ARRL's observation in its June 2011 ex parte submission that in the IEEE P1901-2010 standard there is a normative requirement for a 30-dB notch depth for the FFT OFDM (HomePlug) technology. While this voluntary industry standard is apparently being used by manufacturers of HomePlug In-House BPL equipment, it is more stringent than is necessary for our regulatory purposes and in any case does not apply to the Access BPL applications at issue herein. The Commission also does not find persuasive ARRL's argument that deeper notching can be implemented without adverse impact on the data rates of BPL technology. In this regard, the testing on which ARRL bases this claim was on In-House rather than Access BPL equipment and in any case our principal concern is with imposing regulation that is more restrictive than necessary rather than simply minimizing the impact that such regulation might have on some aspect of BPL equipment or its operation. While the Commission duly note the Republic of Korea's decision to require permanent notching of the amateur bands, the relevance of that determination by that country's regulatory body at that time to our present consideration is not readily apparent, and ARRL provides no information regarding either the radio environment or the regulatory objectives and standards that informed that decision by which the Commission might consider how those considerations might affect our own decision making.

28. The Commission recognizes that one of the documents referenced by ARRL, IEEE P1901-2010, is an industry standard for both Access and In-House BPL equipment authored by nearly a hundred entities that include BPL service and equipment providers and that this standard describes a 35-dB spectrum notching for compatibility with amateur radio services that can be supported by a type of BPL technology known as wavelet OFDM, as elucidated by UTC. Further, as ARRL submits, its scrutiny of systems listed in the BPL database indicates that existing BPL systems in the U.S. are generally notching the entirety of the HF amateur allocations, using equipment capable of notch depths of at least 35 dB. Thus, it appears that many BPL systems now in operation may be voluntarily observing the notch depth and band avoidances that ARRL is requesting. While those industry practices are consistent with the ARRL's goals in this matter, the Commission nonetheless finds they are more stringent than are justified from a regulatory standpoint. In this regard, the Commission does not find that an increase in the required notching capability to a level above 25 dB is needed to protect against interference to amateur or any other licensed services. To require that all systems adhere to a de facto industry 35-dB notching standard would unnecessarily constrain BPL operators, as stated by UTC, and equipment manufacturers who might choose to design for a different level of operation that would comply with the notching level the Commission has determined will provide adequate protection. Further, to require that all of the amateur bands be notched would unnecessarily restrict BPL operations in areas/locations where no amateur operations are present that could receive interference.

29. The Commission sees no statistically-valid support for ARRL's position that the ambient noise levels have become so low as to contradict our conclusion here that a 25-dB notch is generally sufficient to protect licensed services. Further, for fixed stations, if a 25-dB notch is not sufficient to resolve observed harmful interference or other steps to resolve the interference are not successful, under § 15.5(c) of the rules, the operator is then, upon notification by a representative of the Commission, required to cease operation until the interference is corrected. In such cases, the interference might perhaps be resolved by using new equipment that includes a filter with a notch capability greater than 25 dB. The Commission believes, however, that the new 25-dB notching requirement will be sufficient to resolve the great majority of cases of harmful interference that might occur and therefore do not see a need to require that Access BPL systems routinely use equipment with greater notching capability.

30. In changing the notching level to 25 dB, the Commission is aware that Access BPL operators have already installed equipment with 20-dB notching capability in compliance with the rules and that there is some inventory of equipment built to that standard which has not yet been installed. While it believes that the greater level of protection provided by our rule change is prudent in the long term, it has not observed any cases to date where the notching afforded by existing equipment has not been adequate to resolve interference. Accordingly, given the limited number of devices already deployed and manufactured, the Commission will not require their replacement or prohibit their installation for replacement or in new constructions. In order to afford manufacturers time to redesign their equipment to comply with the new, more conservative 25-dB notching requirement, the Commission will allow an 18-month period from the date this action is published in the Federal Register before the requirement becomes effective.

31. In its reply comments, ARRL submits that IBEC did not resolve interference complaints to amateur fixed stations by doing what the existing BPL rules require, other than compliance with the general part 15 requirement to correct any harmful interference. It states that instead, IBEC has avoided or resolved the interference by doing two of the things that ARRL has requested as modifications to the existing BPL rules: (1) IBEC avoided the use of Amateur bands in its installations, and (2) it has used state-of-the-art notch depths of 35 dB. The Commission observes that avoiding a frequency band where interference could occur is certainly an option that is contemplated under the rules. Using a notching capability with attenuation of greater than that required in the rules where needed is also consistent with the general requirement in part 15 rules that a device not cause harmful interference. The Commission does not, however, find the fact that equipment which can provide 35-dB notching capability is now available and IBEC's choice to use such equipment to be indicative that it should require that level of notching capability in all instances. Rather, while the rules will now require a notching capability of at least 25 dB, that level of attenuation will only be deemed sufficient for resolving harmful interference in the case of mobile operations; the system operator is still responsible for resolving harmful interference to fixed operations if the 25-dB notch capability is used and the interference remains. Under the notching rules the Commission adopted, a BPL system operator has the flexibility to install a notching capability greater than 25 dB or to implement other measures for resolving harmful interference in cases where the 25-dB notch is not sufficient. In this regard, IBEC did, in fact, take the steps required under § 15.611(c) of the rules—it configured its systems to be capable of remotely reducing power by 35 dB and adjusting operating frequencies to avoid site-specific, local use of the same frequencies by licensed radio operations. A different operator might have chosen an alternative approach for complying with this rule.

32. Notwithstanding ARRL's contentions, the Commission did consider the information in the presentations in the BPL Order and in the formulation of our rules for regulating interference from Access BPL emissions. There are no new facts, information, or interpretations in those presentations or in ARRL's comments that are inconsistent with the Commission's previously stated understandings and findings. These presentations, as well as other information in this proceeding, show that Access BPL operations can raise the RF noise level to levels above the noise floor such that they can cause interference to amateur operations in the close vicinity of power lines on which the BPL signals are carried. As the presentations show, the area of interference is essentially limited to distances close to and along the power lines. While some interference is possible at locations close to the power line, the Commission believes that in the great majority of locations, interference will not occur to radio services because either propagation conditions limit the range of the Access BPL emissions or there is no licensed amateur station present and operating on the frequencies on which such emissions appear. The Commission sees no need to require an Access BPL operator to reduce emissions below the part 15 limits where there is no potential for interference. In addition, it requires that a database of Access BPL systems be established to allow amateur operators to identify BPL operations in their area before the systems commence operation so that they have an opportunity to alert the BPL operator of their presence before the system is activated. The Commission addressed specific points in ARRL's arguments in paragraphs 52 through 56 of this Second Report and Order.

33. The Commission also noted that throughout this proceeding and as new equipment that allows BPL operators to better manage their frequency use at specific locations has become available, it observed BPL operators taking active steps to locate and avoid interference to amateur operators. Given that identification and resolution of harmful interference can involve expenditures of staff time and resources for Access BPL providers and possibly the temporary disruption of service to their subscribers, these providers have a strong incentive to take a priori steps to ensure that they avoid causing interference to the local radio services, including amateurs. Notwithstanding the occasional interference that was found by amateurs from the trial systems that were operated during the early phases of BPL development such as those examined in the staff presentations (and which, in some cases, were operating with emissions levels that were found to exceed the part 15 limits by amounts ranging from 1 to 4 dB), the Commission observed, as described by IBEC and CURRENT in their comments, that Access BPL operators are taking effective steps as contemplated in the BPL Order to avoid interference to amateur and other licensed services, including working with local amateur operators. Moreover, our own internal records on enforcement matters show only one complaint of interference from Access BPL to fixed licensed operations; that complaint was submitted recently and is under investigation at this time. In summary, the Commission sees no new information or reasoning in ARRL's submissions or other information regarding the three additional staff presentations in the preliminary materials released in July 2009 that would warrant changing the current rules and, specifically, it sees no need to further restrict the operations of BPL systems to protect licensed services.

34. Overview. In the BPL Order, the Commission set forth guidelines for measurement of the emissions from Access BPL systems. These guidelines, inter alia, specify that emissions from Access BPL devices operating below 30 MHz are to be measured for compliance with the radiated emissions limits in § 15.209 of the rules. Those limits are based on measurements made at 30-meters horizontal (lateral) distance from the device under test. However, for practical reasons associated with measurement in the field, the Access BPL measurement guidelines recommend that measurements should normally be performed at a horizontal separation distance of 10 meters from the overhead power line, and they also indicate that measurements can be performed at 3 meters if necessary because of ambient emissions, safety or practical considerations. The field strength of radiated emissions does, however, decrease with increasing distance from the emitter due to propagation loss. Because of this attenuation with distance, the field strength of emissions from a device measured at the 3-meter or 10-meter distances specified in the guidelines will generally be higher than those measured at the 30-meter distance on which the emission standard is based. In order to apply the emissions standard consistently, the measurement results must be adjusted to account for distance attenuation when measurements are made at a distance other than 30 meters.

35. The Commission specified distance extrapolation factors to convert the BPL emissions measurements for frequencies below and above 30 MHz to appropriate values for tests made at the 3-meter and 10-meter distances recommended in the BPL measurement guidelines. For BPL operations on frequencies below 30 MHz, the frequency range at issue here, some commenters in the initial phase of this proceeding, including ARRL, recommended the use of an extrapolation factor of 20 dB/decade, while others recommended an extrapolation factor of 40 dB/decade. The Commission concluded in the BPL Order that “[g]iven the lack of conclusive experimental data pending large scale Access BPL deployments,” it would “continue the use of the existing part 15 distance extrapolation factors” specified in the rules, i.e., 40 dB/decade for frequencies below 30 MHz and 20 dB/decade for frequencies at or above 30 MHz, but with the distance measured as the slant-range distance from the overhead power line to the center of the measurement antenna rather than horizontal (lateral) distance from the nearest point of the overhead power line carrying the BPL signals to the center of the measurement antenna, as illustrated in Figure 1 of Appendix C, of this Second Report and Order. This is the horizontal (lateral) distance between the center of the measurement antenna and the vertical projection of the overhead power line carrying the BPL signals down to the height of the measurement antenna when measurements are taken at a point that is perpendicular to the power lines. It further stated that “if new information became available that alternative emission limit/distance standards or extrapolation factors would be more appropriate,” it would revisit this issue at another time.

36. ARRL filed a petition for reconsideration of the Commission's decision in the BPL Order to use 40 dB/decade as the extrapolation factor for frequencies below 30 MHz. In support of its argument that an extrapolation factor of 20 dB/decade should be used, ARRL also submitted, through ex parte comments, reports on three studies conducted by the United Kingdom's Office of Communications (OFCOM) and a standard by the Special International Committee on Radio Interference (CISPR) regarding emission measurements for BPL systems and a proposal for a sliding scale extrapolation factor based on a 1996 CISPR standard. The first OFCOM study, “ OFCOM, Ascom PLT Measurements in Winchester (May 11, 2005)” (Winchester Study) reported measurements of an underground Access BPL trial system in Winchester, United Kingdom. In that study, OFCOM concluded that the electromagnetic field attenuates at a rate between 20 dB and 25 dB/decade at this BPL installation. The second OFCOM study, “ OFCOM, DS2 PLT Measurements in Crieff (May 11, 2005)” (Crieff DS2 Study) reported measurements of an Access BPL trial system in Crieff, United Kingdom. That study concentrated only on the benefits of programmable notches in the equipment and did not provide any data on distance extrapolation. The third OFCOM study, “OFCOM, Amperion PLT Measurements in Crieff (May 11, 2005)” (Crieff Amperion Study) reported measurements of an overhead, pole-mounted Access BPL trial system, also in Crieff, United Kingdom. In the Crieff Amperion Study, OFCOM concluded that the emitted field attenuates at a rate of 28 dB/decade.

37. On reconsideration, the Commission found the OFCOM studies and the CISPR standard unpersuasive in that there was no “new” or convincing information not already known, and affirmed its decision to use the existing part 15 distance extrapolation factor of 40 dB/decade attenuation rate in the measurements of BPL emissions on frequencies below 30 MHz.

38. In ARRL v. FCC, supra, the court found that the Commission did not offer a reasoned explanation for its dismissal of empirical data that was submitted ex parte by ARRL, i.e., the three OFCOM studies and additional ARRL analysis intended to suggest that an extrapolation factor of 20 dB/decade may be more appropriate for Access BPL. The court ordered the Commission either to “provide a reasoned justification for retaining an extrapolation factor of 40 dB/decade for Access BPL systems sufficient to indicate that it has grappled with the 2005 studies, or adopt another factor and provide a reasoned explanation for it.”

39. The Commission acted to respond to the court's directive in the RFC/FNPRM. Therein, it provided a more detailed explanation of its reasons for selecting 40 dB/decade as the extrapolation factor for frequencies below 30 MHz and in particular why it does not believe that the studies and technical proposal submitted earlier by ARRL provide convincing information that it should use an extrapolation factor that is different from (and, specifically, less than) 40 dB/decade as required in the second element of the court's directive in ARRL v. FCC. In summary of that explanation, the Commission stated that:

i. There were no significant studies that examined the very large number of measurements that would be needed to address the different site characteristics that affect the attenuation of emissions below 30 MHz;

ii. The studies submitted by ARRL in its 2005 ex parte provided only anecdotal information on two different types of installations (overhead and underground) from two single sites and also had certain methodological shortcomings; and

iii. With respect to its proposal for a sliding scale extrapolation factor, ARRL did not provide an explanation as to how its formula was derived or how to use it to determine the extrapolation factor, nor did it provide a rationale for selecting such a formula or information as to the relationship between the performance of emissions from BPL technology and the specifications for reduction of power line noise adopted in the standard.

40. In the RFC/FNPRM, the Commission also observed that since its adoption of the BPL Reconsideration Order, reports had become available on two new technical studies addressing attenuation of BPL emissions with distance, one by NTIA in October 2007 that described a second phase of its simulation study on the potential for interference from Access BPL systems (NTIA Phase 2 Study) and the other by the Federal Republic of Brazil (Brazil Study) in June 2008 that presented the results of a measurement study of BPL emissions. In addition, it noted that the IEEE working group on power line communications technology electromagnetic compatibility was working on a standard for EMC testing and measurements methodology for BPL equipment and installations (IEEE P1775/D2) that included a provision for determining extrapolation (distance correction) factors on a site-by-site basis using in situ measurements as part of its work on that standard.

41. In view of these new studies and consistent with its stated intention in the BPL Order to revisit the extrapolation factor if new information became available and the opportunity provided by the Court's remand of the extrapolation factor, the Commission decided to conduct further rulemaking to review its decision on the extrapolation factor. It requested that interested parties submit additional comment and information on the BPL extrapolation factor and specifically asked that such comment and information address (1) The three studies and proposal for a sliding scale extrapolation factor submitted previously by ARRL as part of its ex parte filing of July 8, 2005 in this proceeding, (2) the NTIA Phase 2 and Brazil studies with respect to their findings on the extrapolation factor for BPL systems, and (3) the existing slant-range method as it pertains to the effective field attenuation rate in a horizontal distance context. The Commission further requested submission of any other new empirical studies or information that may provide information regarding the BPL distance attenuation extrapolation factor. The Commission stated that its goal in this review is to provide BPL measurement procedures that will adequately ensure compliance with the Section 15.209 emissions standard for emissions at or below 30 MHz without placing unfair or undue compliance burdens on equipment manufacturers and users. In conducting this review, the Commission indicated that initially it continued to believe the existing 40 dB/decade extrapolation factor, in conjunction with the slant-range distance method, was reasonable and appropriate for adjusting measurements of BPL emissions on frequencies below 30 MHz.

42. The Commission also recognized that there is considerable variability around the 40 dB/decade value at different sites. The result of this variability is that the actual attenuation at some sites could be less than 40 dB/decade and using the current extrapolation factor at such sites could produce an adjusted measurement that would be less than the level that would be measured at the standard 30-meter measurement distance specified in § 15.209 of the Commission's rules. The Commission therefore requested comment on whether it would be desirable to modify the value of the BPL extrapolation factor to be 30 dB/decade or some other value. It observed that extrapolated emission levels based on a 30 dB/decade extrapolation factor when applied to slant distance would be comparable to the extrapolated emission levels based on a 20 dB/decade extrapolation factor applied to horizontal (lateral) distance. Recognizing that reliance on a 30 dB/ decade extrapolation factor could increase the compliance burden for BPL equipment and systems that are tested at locations where the attenuation rate is in fact in the range of 40 dB/decade or greater, the Commission clarified that in all cases, measurements of Access BPL equipment and systems will be allowed to be made at the 30-meters distance specified in § 15.209 of the Commission's rules and that where possible, the Commission's staff will make measurements at this distance when testing for compliance.

43. After consideration of the most recent information and comments on this matter and further deliberation on all of the studies and information in the record, the Commission has decided to retain the 40 dB/decade extrapolation factor for frequencies below 30 MHz. There are several reasons that lead us to this conclusion. Initially, the Commission observed that the 40 dB/decade extrapolation for frequencies below 30 MHz has served successfully in our program to control emissions from radio frequency devices for many years. It also observed that, while ARRL contends that 20 dB is the only scientifically correct and valid value for an extrapolation factor, the studies and information before us shows considerable differences in extrapolation factors under various powerline system configurations and usage conditions. The Commission concludes that there is no single “correct” value for an extrapolation for RF emissions from power lines, and instead find that the compelling and reasonable solution is to use the existing part 15 extrapolation factor that both has a scientific basis and has stood the test of time for a wide variety of devices and systems. It also notes that, using the slant range method in performing measurements has the effect of reducing the extrapolation factor to approximately 20 dB. The Commission considers too, that the extrapolation factor used with BPL measurements is only one element in a comprehensive set of rules that are designed and intended to minimize the risk of harmful interference from BPL operations and to put in place appropriate measures to eliminate such interference if it should occur. In that context, the rules require that harmful interference be corrected under any circumstances. Measurements for examination of compliance are important, to be sure, but interference must be corrected even if measurements indicate that the BPL operations at the site are compliant. While ARRL asserts that an extrapolation factor that is too lax will lead to widespread instances of harmful interference that should be corrected ex ante as opposed to ex post, it has seen little evidence of harmful interference being caused under the rules as adopted with a 40-dB extrapolation factor.

44. In addition, the Commission notes that there is no support from any of the commenting parties that modifying the extrapolation factor to 30 dB/decade in order to take a more conservative approach that would compensate for the variability in the attenuation rate would provide a more appropriate extrapolation factor. Therefore, it is not adopting that change. To provide clarity for those conducting measurements for compliance of Access BPL equipment and systems with § 15.209 of the Commission's rules emissions standards, the Commission specifies the extrapolated values of compliant emissions levels at 3-meter and 10-meter horizontal (lateral) distance from the nearest point of the overhead power line carrying the BPL signals for typical heights of medium voltage power lines in the BPL measurement guidelines. The Commission is also adopting its proposal for a new method for determination of site specific extrapolation factors in measurements of emissions from BPL systems.

45. Looking more closely at this issue, the Commission finds that ARRL has not provided convincing information that the value of the measurement distance extrapolation factor for Access BPL should be reduced from 40 dB/decade to 20 dB/decade or some other number close to that value. While ARRL offers detailed and lengthy submissions of information on propagation of RF energy below 30 MHz and critiques of the studies, analyses and information provided by others, including this Commission, that information does not provide any new insights on radio propagation that would alter our decision. Moreover, its arguments for a 40 dB/decade standard do not account for two key factors that affect the significant attenuation of RF energy in this region of the spectrum: Factors in the emissions process (such as ground effects and the presence of multiple power lines and their position on the pole) and the significant variability in attenuation rate across different installation sites.

46. The Commission finds ARRL arguments to be unpersuasive. First, it is important to recognize that there is no “FCC-laboratory recommendation” as characterized by ARRL. The Commission is under no obligation to discuss in a rulemaking proceeding every staff observation or opinion provided during the course of internal deliberations. It observes that the 20 dB/decade extrapolation factor was part of one of three options presented on slide #19. The presentation offered no specific analysis or measurement data supporting this extrapolation factor. Rather, as specified on the slide, the authors offered it as a way to postpone and/or reduce the interference potential of BPL systems. Additionally, as noted by Arkados and HomePlug, none of the five FCC staff presentations actually examined the path loss extrapolation factor, but rather, they examined other technical issues such as the effect of the distance down the power line, differences in radiated field strength due to the detector that was employed, effect of measurement receiver antenna height, audible interference and antenna polarization. The Commission therefore did not (and still do not) consider that the information on which the provided option on slide #19 was based to be sufficient or compelling such that it should override or supersede other information that we also considered in the extrapolation factor decision. As UTC observes, the staff presentations merely included a 20 dB/decade extrapolation factor as one option among many for regulating BPL operations in the HF bands; the presentations did not find that a 20-dB extrapolation factor represented the actual rate of decay, nor did they contain any underlying information or analysis that would support such a finding. Further, with respect to ARRL's assertions regarding our use of new studies in the RFC/FNPRM as ex post facto evidence, it apparently overlooks our quite specific statement therein that the decision to adopt the 40 dB/decade standard was based on information available at the time of the decision, not newly available information.

47. With regard to the new studies identified in the RFC/FNPRM, ARRL contends that the major flaw in the NTIA Phase 2 Study is that the modeling used does not fully account for the way that field strength decays at angles other than 90 degrees. ARRL further argues that with respect to height, the report errs in its attempted justification of the 5 dB height correction above 30 MHz but not below, and it justifies 40 dB/decade by disregarding 20 percent of the data points. On the other hand, CURRENT quotes the NTIA Phase 2 Study as stating: “[a]t or above 10 MHz, the simulation results show good agreement between the rate that field strength decays and the [40 dB/decade] distance extrapolation rate in the part 15 rules.” HomePlug also agrees that the NTIA Phase 2 Study clearly demonstrates that the 40 dB/decade extrapolation factor is the correct value at or above 10 MHz, and much closer below 10 MHz than figures used in the studies submitted by ARRL. The Commission observes that NTIA's modeling in its Phase 2 Study indicates that the field along a complex power line model is highly varied, with areas of greater and lesser field strength produced by cancellation and reinforcement effects. However, there are some regularities, including field strength maxima at multiples of wavelengths along the power line, which is the reason why the Commission adopted the requirement for measurements at multiple points along the power lines in our BPL measurement guidelines. In addition, as discussed above, ARRL's own modeling shows that the magnetic field (measured below 30 MHz) does not vary greatly with height. Further, the Commission agrees with NTIA's position that “the 80th percentile values eliminate the localized peaks that are unlikely to be encountered by a radio receiver randomly located in close proximity to an Access BPL power line.” Thus, the Commission finds that the NTIA Phase 2 Study is not flawed as argued by ARRL.

48. The Commission recognizes the concerns of ARRL and IBEC regarding the Brazil Study. In addition, like the OFCOM studies before it, the Brazil Study would, in the best of circumstances provide only anecdotal information on the attenuation rate of BPL emissions as it only conducted measurements at a single location, rather than the very large number of sites that would be needed to develop a generalized description of that parameter. As it stated in the RFC/FNPRM, these studies do, however, provide an indication that BPL emissions tend to attenuate at rates that vary substantially across different sites, and that those rates can be much higher than the 20 dB/decade suggested by ARRL. In fact, the Brazil Study, while not individually probative, provides support for a much higher extrapolation factor than the similarly insubstantial OFCOM studies provided by ARRL.

49. The Commission agrees with ARRL that emissions radiating upwards from overhead power lines are likely to attenuate at lower rates than emissions radiating horizontally and lower to the ground. In cases where an amateur antenna is located on a tower above the height of the power lines, as is typical of fixed amateur stations, we would expect that the level of any emissions received by that antenna might typically be higher than emissions received by a similar antenna located below the height of the power lines, all other things the same, because the path to the tower-mounted antenna will be less affected by the ground. However, the Commission's Access BPL rules provide for protection of such antennas by the absolute application of the prohibition against causing harmful interference in § 15.5 of the rules. Also the Commission would generally expect that if a BPL installer sees a tower-mounted antenna, the installer would take steps to avoid interference to it before the system commences operation. In any case, for safety reasons, our rules provide for measurement of Access BPL systems from locations relatively close to the ground, where attenuation rates are likely to be higher, rather than at heights similar to power lines.

50. ARRL argues a number of technical points to support using the free-space (or near free-space) 20 dB/decade attenuation rate associated with line sources. Again, the Commission agrees with ARRL on all of these technical points of well-documented RF propagation theory. While it did not explain earlier decisions on Access BPL at the level of detail that involved mentioning these factors (and do not believe that it is routinely necessary to explain propagation considerations which are a matter of accepted electromagnetic physics theory), the Commission did consider them in its decision. In fact, they were an intrinsic element of our deliberations. As a result, the Commission included provisions in the Access BPL measurement guidelines for testing along the power lines at specified intervals where emissions would be expected to be highest. It also considered that ground absorption and other environmental effects present near the surface that limit RF propagation typically result in attenuation of emissions in the MF and HF bands at rates much higher than the 20 dB/decade free space model, especially at the 1 meter height specified in the Access BPL measurement guidelines.

51. ARRL contends it is illogical to conclude that, if a 20 dB/decade extrapolation is appropriate at 30.001 MHz, the extrapolation somehow suddenly jumps to 40 dB/decade at 29.999 MHz. While ARRL is correct with regard to the physics of this issue, as CURRENT observes, “regulation is often a matter of drawing bright lines through gray lines.” The Commission commonly uses “bright line” standards in its rules to provide clarity, simplicity, predictability and ease of applicability. The “bright line” difference in the extrapolation factors for under and over 30 MHz is intended to provide clear guidance in a region of the spectrum where there is considerable variability in the predictability of results. The Commission continues to believe that the current “fixed line” or “bright-line” approach for the different extrapolation factors above and below 30 MHz is appropriate for practical and administrative purposes.

52. The arguments of ARRL and CURRENT concerning the technical validity of using 40 dB/decade as the extrapolation factor for measuring emissions on frequencies below 30 MHz demonstrate the complexity involved in describing and estimating field strengths in the near-field regions of emissions. ARRL is generally correct in its technical presentation of the theory of such fields, i.e., that emissions decay in the reactive near field at a rate of 40 dB/decade within a distance of λ/2π from the source and then in the radiating near field out to 2D 2 /λ at a rate of 20 dB/decade. The very long lengths of typical power line segments therefore would not be expected to affect the decay rate of field strengths relative to reactive near field phenomena and therefore at distances greater than 10 meters all frequencies above 4.78 MHz will generally be outside the reactive near field boundary. However, ARRL's description of the behavior of fields also shows that while the attenuation rate in the radiating near field is generally on the order of 20 dB/decade (in the free-space or near free-space case), there are standing wave patterns and other phenomena that make predictions unreliable. In addition, when measuring relatively close to the ground (at the 1-meter height specified for measurements at frequencies below 30 MHz), the proximity to and variation of ground features and other conditions cause great variability in signal levels. ARRL recognizes these ground effects, but argues that licensed services should not be protected only at ground level and that to do this the extrapolation factor should take into account the normally encountered antenna height of the victim receiver. Given that BPL measurements will be made close to the ground for the safety and practical reasons indicated and the propagation characteristics that are likely to be present in ground environments, the Commission continues to believe that there is justification for presuming that the expected attenuation rate of measured emissions at frequencies below 30 MHz is greater than 20 dB/decade. It also agrees with ARRL that licensed services should be protected in all cases and in this regard, the regime of rules we have established for Access BPL systems, provides that protection.

53. The Commission observes that none of the standards mentioned by ARRL apply to Access BPL equipment and the specific environments in which these devices operate. In particular, even though ARRL insists that the CISPR 18 standard does apply to BPL as it would apply to any source of RF noise, the Commission notes that CISPR has been working on the subject of an emission standard for BPL as far back as 2000 under CISPR Subcommittee G. The work to develop a standard specific to BPL has continued in CISPR Subcommittee I, however, this work has been recently reset to its preliminary stage due to the complex issues surrounding RF emissions at frequencies below 30 MHz, with signal attenuation being highly variable depending on the localized environment. Moreover, the Commission finds that the record in this proceeding has established a substantial body of information that supports the use of 40 dB/decade in conjunction with slant-range distance to adjust the emissions level for test results obtained in accordance with the measurement standards it adopted for Access BPL.

54. In addition, as discussed in the RFC/FNPRM, the slant-range distance method in the Access BPL measurement guidelines works with the 40 dB/decade factor to yield extrapolated emissions level values that have the effect of imposing a more conservative emissions standard than would be derived using the horizontal (lateral) distance from the nearest point of the overhead power line carrying the BPL signals. In this regard, at the relatively short distances at which Access BPL emissions are to be measured, i.e., distances 30 meters or less, applying the slant-range measurement method in the extrapolation of the measurements effectively reduces the compliant emission levels for BPL systems with respect to the horizontal distance from the power line. This reduction results because at any given horizontal distance from the power line, the slant-range distance is longer than the horizontal distance. The relationship is one of basic plane geometry that occurs due to the height of the power line on which the BPL signal injector is installed. When extrapolated values at 40 dB per decade of slant-range distance are plotted against the horizontal distance, the effective extrapolated emission level curve more closely follows the emission level curve based on a 20 dB per decade extrapolation factor at horizontal distances than the emission level curve based on a 40 dB per decade extrapolation factor at horizontal distances. NTIA's modeling results in its Phase 2 Study effectively reflect this observation. Also, given that the Access BPL measurement guidelines require compliance measurements to be taken at 30 meters or less, the effect of the slant-range distance provision is significant at all distances where the extrapolation factor can be used.

55. ARRL and several of the commenting parties addressed the Commission's request for comment on whether it would be desirable to modify the extrapolation factor to be 30 dB/decade or some other value to account for the considerable variability around the 40 dB/decade expected attenuation value at different sites. It was our intent that this lower value would apply a more conservative approach that would compensate for those cases where the actual attenuation is less than 40 dB. In opposing this plan, ARRL asserts that the Commission is not apparently convinced by its own ex post argument justifying use of 40 dB/decade, as it immediately thereafter abandoned that argument and proposed instead to adopt an equally unjustified 30 dB/decade extrapolation factor in what appears to be the “King Solomon” approach rather than a real scientific analysis. ARRL rejects the approach underlying the 30 dB/decade proposal and argues that the Commission is obligated to adopt a scientifically valid extrapolation standard, which it contends is 20 dB/decade. The UTC and CURRENT also oppose such a change, stating that the Commission was correct to select 40 dB/decade as the distance extrapolation and that it should maintain that value. UPLC argues that a 30 dB/decade value would be inappropriate and that a reduced value would impose a significant compliance burden on Access BPL systems. CURRENT argues that the Commission's original selection of 40 dB/decade is well supported by the record and that the mere possibility of other supportable conclusions, especially if based on other studies, does not warrant a change. CURRENT and the UTC further submit that the now-demonstrable lack of interference reports from CURRENT's extensive operations supports not changing the extrapolation standard.

56. It is plain from the record that reducing the extrapolation factor to the more conservative 30 dB/decade level to compensate for those situations in which the actual attenuation is less than 40 dB/decade would not satisfy the concerns of any of the parties to this matter or otherwise provide any benefits that would improve our Access BPL measurement guidelines. Contrary to ARRL's misapprehension, our consideration of a reduction in the extrapolation factor was not intended as a “compromise” approach in consideration of the wide variations in the studies and data before us. Rather, it was a recognition of the uncertainty or inexactness inherent in the information available and the amount of analysis undertaken at the time, and a signal of our openness in reconsidering the issue in that light.

57. Taking into consideration the above evaluations and all of the additional information before us now, the Commission believes that the most compelling path points to retaining the 40 dB extrapolation factor. In this regard, it first observed that it used this extrapolation value successfully with measurements at frequencies below 30 MHz in its program to control emissions from radio frequency devices for many years. This includes not only consumer products, but also industrial, scientific and medical equipment that may use thousands of watts of power and couple radio noise onto power lines that can radiate for significant distances. In addition, while ARRL asserts that there is only one scientifically correct and valid answer of an extrapolation factor of 20 dB, the studies and information before us show considerable differences in extrapolation factors under various system configurations and usage condition. The Commission concludes that there is no single “right” value for the extrapolation factor that accurately reflects environmental conditions in all cases, and instead finds that the most appropriate decision is to use the existing value in the rules that both has a scientific basis and has stood the test of time for a wide variety of devices and systems. The Commission also considers that, as observed in the discussions, using the slant range to perform measurements has the effect of reducing the extrapolation factor to approximately 20 dB. In addition, the attenuation factors that are typically present when making measurements close to the ground, as specified in the BPL rules, tend to increase the signal loss above that which occurs from the spreading of energy in free space propagation. Finally, while one can debate the propriety and scientific validity of any particular extrapolation factor, the Commission must consider that the extrapolation factor is but one element in the context of an overall set of rules that are designed to minimize the risk of harmful interference and to put in place appropriate measures to eliminate such interference if it should occur. Whether the extrapolation factor is 20 dB or 40 dB or somewhere in between is far less important than the fact that harmful interference must be corrected under any circumstances. While ARRL asserts that an extrapolation factor that is too lax will lead to widespread instances of harmful interference that should be corrected ex ante as opposed to ex post, the Commission has seen little evidence of harmful interference being caused. Accordingly, the Commission will not modify the extrapolation factor for the emissions standard for frequencies below 30 MHz to compensate for the variability in the field strength attenuation rate at different locations.

58. The Commission also reiterates here the clarification it issued in the RFC/FNPRM that measurements of BPL equipment and systems should be made at the 30-meters distance specified in § 15.209 of the Commission's rules unless circumstances such as high ambient noise levels or geographic limitations are present, in which case, a 3-meter or 10-meter horizontal distances indicated in the BPL measurement guidelines may be used. The Commission further clarifies that measurements made at the 30-meter distance specified in the § 15.209 of the Commission's rules emissions standard will prevail over measurements made at shorter distances and that where possible and practical, the Commission's staff will make measurements at this distance when testing for compliance. As indicated, to provide additional clarity in our compliance requirements, the Commission also amended the BPL measurement guidelines to specify the extrapolated values of the emissions level for compliance at 3-meter and 10-meter horizontal distances from the nearest point of the overhead power line carrying the BPL signals for typical heights of medium voltage power lines. These clarifications of the existing rules as well as the adoption of the definition for slant-range distance would assist the industry in ensuring compliance of BPL systems without imposing additional regulatory costs.

59. In the RFC/FNPRM, the Commission proposed to allow parties testing BPL systems for compliance with the radiated emissions limits to determine distance correction factors on a site-by-site basis using a new in situ measurement procedure designed specifically for Access BPL. This plan, which was based on a concept under consideration in the IEEE Working Group P1775/D2 effort at that time and which has been finalized since, would allow entities conducting measurements of Access BPL systems and equipment to determine an extrapolation factor specific to a site by fitting a straight line to measurements of field strength in dBµV/m vs. logarithmic distance in meters from the nearest conductor carrying BPL emissions, where the extrapolation factor would be taken as the slope of that line. The Commission indicated that the site-specific extrapolation factor would be an alternative to the extrapolation factor specified in the BPL measurement guidelines and would be replacing the existing method using only two data points for determining site-specific extrapolation factors currently in the rules. The proposed alternative method would only be applicable to Access BPL devices operating on frequencies below 30 MHz.

60. Under the proposal in the RFC/FNPRM, entities conducting measurements would determine an extrapolation factor specific to the site by fitting a straight line to measurements of field strength in dBµV/m vs. logarithmic distance in meters from the nearest conductor carrying BPL emissions, where the extrapolation factor would be taken as ten times the slope, n, of that line. The slope n any point on the straight line in µV/m would be:

The field strength in dBμV/m at any distance D along the best straight line fit is estimated from the value of n as:

The extrapolation factor would be derived from a best straight line fit determined by a linear least squares regression calculation from measurements made at four or more lateral distances from the overhead line, starting at no less than 6 meters from the lateral plane and spaced from each other by at least 3 meters. If these measurements allow a straight line with a negative slope to be calculated or drawn with reasonable fit (the minimum regression coefficient of multiple correlation would be 0.9), the best straight line fit would be used to calculate field strength at the 30-meters standard measurement distance in the rules according to the equation above. If the four measurements do not fall near any straight line or negative slope, measurements at a new distance would be added until a reasonable fit to a straight line is indicated. In addition, measurements that obviously show a “null” or other “outlier” value would be ignored. Parties employing site-specific extrapolation values would be required to provide a record of the measurements under the above procedure and to submit those measurements and their derivation of the in situ values with any measurements with compliance submissions to the Commission.

61. The Commission continues to believe the availability of a site-specific approach for determining values for extrapolation of measurements of Access BPL emissions on frequencies below 30 MHz is a desirable and useful alternative to the fixed extrapolation factor. The option to use site-specific values can substantially alleviate the measurement concerns associated with the standard extrapolation factor and the variability in attenuation rates that may be observed in the field, and particularly where measurements at a site may plainly not appear to conform to the 40 dB/decade standard. It also recognizes ARRL's concerns that a site-specific option could be abused by careful selection of measurement points. However, the Commission finds that the proposed approach that requires four measurements spaced at least 3 meters apart with provisions for additional measurements where a straight line with a negative slope is not approximated by the four initial measurements, is sufficient to develop a reliable indication of the attenuation rate at a site. In particular, it believes the requirement in this new procedure that the measurements used to develop the extrapolation value approximate a straight line with a negative slope as determined through the linear least squares regression method (with a minimum regression coefficient of multiple correlation of 0.9) will adequately guard against the “cherry picking” concern mentioned by ARRL. Where such a line cannot be approximated, the Commission will also require that measurements be made at a different perpendicular position along the power line very nearby or at the same perpendicular position but on the opposite side of the line from the first set of measurements.

62. This new site-specific procedure will replace the existing § 15.31(f)(2) of the Commission's rules alternative for Access BPL that only requires two measurements. This plan conforms substantially to the IEEE P1775-2010 standard which has been developed. The Commission observes that a straight line best fit of multiple data points using the least squares regression technique is not a new idea developed by the IEEE standard, it is a well-established and commonly used statistical method. It notes that in the RFC/FNPRM, it proposed to derive the extrapolation factor from a best straight line fit determined by a linear least squares regression calculation from measurements made at four or more lateral distances from the overhead line, starting at no less than 6 meters from the lateral plane and spaced from each other by at least 3 meters; at that time, the IEEE standard was in a state of transition and we were merely proposing a measurement concept. The Commission now observes the IEEE P1775-2010 has finalized its standard to specify that measurements be made at four or more lateral distances from the overhead line, starting at no less than 3 meters from the lateral plane and spaced from each other by at least 3 meters. The Commission adopted the distances as specified in the IEEE published standard for the new site-specific measurement procedure. This procedure is an improvement over the current procedure for determining site-specific extrapolation factors in § 15.31(f)(2) of the Commission's rules, which requires only two measurement points without any specific separation distance. The Commission cautions parties responsible for certification measurements to bear in mind that the objective of the site-specific procedure is to plot enough data points to draw a valid extrapolation curve; accordingly, in some situations the number of measurement points may need to exceed the recommended minimum for the resulting extrapolation to be valid. Further, as stated in the BPL Order and the BPL Reconsideration Order, operators of Access BPL systems are responsible for eliminating any harmful interference that may occur or must cease operation upon notification by a Commission representative that the device is causing harmful interference. Accordingly, the Commission amended its rules as set forth in Appendix C of this Order to establish a new method for determining site-specific extrapolation values for Access BPL measurements as described herein. Because this is an alternative method intended to facilitate compliance measurements which may be used at the BPL operator's discretion, the requirement provides benefits without imposing additional regulatory costs. The benefits of having this additional method would enable BPL operators to better adjust the operating parameters of BPL devices according to specific installation sites that might not conform to the standard extrapolation value, which could lead to cost savings and reduced interference potential. Additional provisions of this procedure are set forth in the revised Access BPL measurement guidelines in Appendix D of the Order.

63. The Commission will not allow the site-specific procedure to be used at locations within 30 meters of a power pole with a ground conductor where the Access BPL signals devices are carried on a neutral/grounded line of the power system. In this regard, it is concerned that emissions from a grounding conductor mounted on the side of a power line pole could combine with the emissions from the overhead neutral power line to produce false indications of the attenuation rate that would distort the slope of the extrapolation curve. Accordingly, the Commission amended its rules as set forth in Appendix C to establish a new method for determining site-specific extrapolation values for Access BPL measurements as described herein. Additional provisions of this procedure are set forth in the revised Access BPL measurement guidelines in Appendix D of the Order.

64. ARRL contends that the BPL database is virtually useless due to errors, omissions and listings of systems that are not operating any longer and systems that have never been placed in operation. It cites as an example an incident in which it sent an email message to the person listed in the database for the Manassas, VA, BPL system, it found the email contact was invalid and follow-up email messages to the City of Manassas went unanswered. In its reply comments, the City of Manassas submits that when the system operator, Comtek, transferred operation of the system to the city, the contact was not updated immediately but the error was corrected promptly in April 2009 when the city was notified by ARRL that the listing was incorrect. The Commission agrees with ARRL that the database should be maintained with accurate, up-to-date information. The Commission's staff contacted the database manager, UTC, about ARRL's concerns and in its reply comments, UTC affirms that the database has been and is being reviewed periodically to ensure that the information is currently accurate. The Commission does note that while it is important that the database be up-to-date in all respects, it is most important that operating and soon-to-be operating systems not be omitted and it does not have information that such systems were not or are not listed. The Commission therefore encourages UTC to continue to be diligent in its management of the database and other interested parties to work with UTC in providing information to ensure that the records in the database are accurate and up-to-date.

65. As required by the Regulatory Flexibility Act (RFA), 1 an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Request for Comment and Further Notice of Proposed Rulemaking (RFC/FNPRM) in ET Docket Nos. 04-37 and 03-104. 2 The Commission sought written public comment on the proposals in the RFC/FNPRM, including comment on the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

66. The Second Report and Order maintains the existing Access BPL emissions standards and other technical operation rules, as well as the existing extrapolation 40 dB/decade factor prescribed in the rules for use in measurement of emissions from Access BPL systems. In addition, the Second Report and Order modifies the rules to (1) Require a deeper notch filter depth when a notch filter is used to avoid interference to a specific frequency band; (2) adopt a definition for the slant-range distance used in the BPL measurement guidelines to further clarify its application; and (3) establish a new procedure for determining site-specific extrapolation factors.

67. The decisions in the Second Report and Order are consistent with the mandate by the United States Court of Appeals for the District of Columbia in ARRL v. FCC, and will provide regulatory certainty for both manufacturers of Access BPL equipment and systems operators so that development of equipment and construction of facilities can proceed unimpeded by any concerns about the status of the regulations with which equipment and systems must comply. 3

1. In a Second Report and Order (“ Second R &O ”) released on August 10, 2007, FCC 07-132, and published in the Federal Register on August 24, 2007 at 72 FR 48814, the Commission adopted rules which contained information collection requirements subject to the Paperwork Reduction Act (PRA). The Second R&O stated that, upon OMB approval of the information collection requirements, the Commission would publish in the Federal Register a document announcing the effective date of these rules. On October 28, 2011 the OMB approved, for a period of three years, the information collection requirements contained in 47 CFR 27.14(g) through (l), 27.15, 27.50 and 90.176 of the Commission's rules under OMB Control No. 3060-1161.

2. On October 28, 2011, OMB approved the public information collection associated with these rule changes under OMB Control No. 3060-1161.

This is a synopsis of the Commission's Report and Order, MB Docket No. 11-137, adopted November 4, 2011, and released November 9, 2011. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street SW., Washington, DC 20554. This document will also be available via ECFS ( http://fjallfoss.fcc.gov/ecfs/ ). This document may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone 1 (800) 478-3160 or via the company's Web site, http://www.bcipweb.com. 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).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

The Commission will send a copy of this 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 73 as follows:

In 1989, the President's Commission on Federal Ethics Law Reform recommended that individual agency standards of conduct be replaced with a single regulation applicable to all employees of the executive branch. Acting upon that recommendation, President Bush signed Executive Order 12674 on April 12, 1989, which was subsequently modified and restated by Executive Order 12731 (Executive Order), signed by President Bush on October 17, 1990. Section 201(a) of the Executive Order required the OGE to promulgate regulations that “establish a single, comprehensive, and clear set of executive-branch standards of conduct”. Accordingly, OGE published a final rule entitled “Standards of Ethical Conduct for Employees of the Executive Branch” (Standards) on August 7, 1992, with an effective date of February 3, 1993. The Standards, as amended, are codified at 5 CFR part 2635, and established uniform standards of ethical conduct applicable to all executive branch personnel.

Upon the effective date of the Standards, the NTSB's regulations contained in part 805, which relate to employee responsibilities and conduct, were superseded.

By this notice, the NTSB rescinds part 805 in its entirety, reserving such part for future use. The regulations contained in part 805 deal with employee responsibilities and conduct, and have been superseded by the Standards or by 5 CFR part 2634.

The rescission of part 805 is exempt from the notice and comment procedure normally required by the Administrative Procedure Act. See 5 U.S.C. 553(a). Notice and comment before the effective date are being waived because this rule concerns matters of agency organization, practice and procedure.

Because this rule relates to NTSB personnel, it is exempt from the provisions of Executive Orders Nos. 12866 and 12988.

The NTSB has determined, pursuant to the Regulatory Flexibility Act, 5 U.S.C. chapter 6, that this rescission will not have a significant economic impact on a substantial number of small entities because it only affects NTSB employees.

The Paperwork Reduction Act, 44 U.S.C. chapter 35, does not apply to this rescission because it does not involve any collection of information subject to the approval of the Office of Management and Budget.

The NTSB has determined that the rescission of the aforementioned regulations is not a rule as defined in 5 U.S.C. 804, and thus, does not require review by Congress.

In consideration of the foregoing, the National Transportation Safety Board amends chapter 8 of title 49, Code of Federal Regulations, as follows:

We, the U.S. Fish and Wildlife Service, published a final rule in the Federal Register on October 8, 2008 (73 FR 59448), to revise our regulations governing falconry in the United States. These regulations are found in title 50 of the Code of Federal Regulations (CFR) at § 21.29. The regulations provide that, when a State meets the requirements for operating under the regulations, falconry permitting must be delegated to the State.

The States of Indiana, Iowa, Nebraska, New Jersey, New Mexico, North Carolina, Ohio, Oregon, Tennessee, Virginia, and Wyoming have submitted revised falconry regulations and supporting materials and have requested to be allowed to operate under the revised Federal regulations. We have reviewed the regulations administered by these States and have determined that their regulations meet the requirements of 50 CFR 21.29(b). According to the regulations at § 21.29(b)(4), we must issue a rule to add a State to the list at § 21.29(b)(10) of approved States with a falconry program. Therefore, we change the Federal regulations accordingly, and a Federal permit will no longer be required to practice falconry in the States of Indiana, Iowa, Nebraska, New Jersey, New Mexico, North Carolina, Ohio, Oregon, Tennessee, Virginia, and Wyoming beginning January 1, 2012.

In addition, to conform with the provisions of the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668c), we change wording in 50 CFR 21.29(a)(1)(ii) by replacing the word “used” with the words “taken from the wild.”

We also make three nonsubstantive improvements to the falconry regulations in 50 CFR 21.29. Paragraph (c)(1) is not needed because the information in it is presented in paragraph (b)(10). We remove paragraph (c)(1). We also add paragraph (d)(1)(ii)(B)( 3 ) to specify that an eyas raptor need not be kept in an indoor enclosure suitable for a flighted bird. Finally, we amend paragraph (f)(12)(i) to replace “flight feathers” with the more precise “tail feathers and primary and secondary wing feathers.” We also make other nonsubstantive editorial changes to correct minor errors and to clarify the regulations.

In accordance with section 553 of the Administrative Procedure Act (5 U.S.C. 551 et seq. ), we are issuing this final rule without prior opportunity for public comment. Under the regulations at 50 CFR 21.29(b)(1)(ii), the Director of the U.S. Fish and Wildlife Service must determine if a State, Tribal, or territorial falconry permitting program meets Federal requirements. When the Director makes this determination, the Service is required by regulations at 50 CFR 21.29(b)(4) to publish a rule in the Federal Register adding the State, Tribe, or territory to the list of those approved for allowing the practice of falconry. On January 1st of the calendar year following publication of the rule, the Service will terminate Federal falconry permitting in any State certified under the regulations at 50 CFR 21.29.

This is a ministerial and nondiscretionary action that must be enacted shortly to enable the subject States to assume all responsibilities of falconry permitting by January 1, 2012, the effective date of this regulatory amendment. Further, the relevant regulation at 50 CFR 21.29 governing the transfer of permitting authority to these States has already been subject to public notice and comment procedures. Therefore, in accordance with 5 U.S.C. 553(b)(3)(B), we did not publish a proposed rule in regard to this rulemaking action because, for good cause as stated above, we found prior public notice and comment procedures to be unnecessary. In addition, per 5 U.S.C. 553(d)(1), we are making this rule effective in less than 30 days because this rule relieves a restriction: It relinquishes Federal control of the falconry permitting program to the approved States.

The Office of Management and Budget (OMB) has determined that this rule is not significant under Executive Order 12866. OMB bases its determination upon the following four criteria:

a. Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.

b. Whether the rule will create inconsistencies with other Federal agencies' actions.

c. Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

d. Whether the rule raises novel legal or policy issues.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. L. 104-121), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (that is, small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities.

SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide the statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

We have examined this rule's potential effects on small entities as required by the Regulatory Flexibility Act, and have determined that this action will not have a significant economic impact on a substantial number of small entities. This rule delegates authority to States that have requested it, and those States have already changed their falconry regulations. This rule does not change falconers' costs for practicing their sport, nor does it affect businesses that provide equipment or supplies for falconry.

Consequently, we certify that, because this rule will not have a significant economic effect on a substantial number of small entities, a regulatory flexibility analysis is not required.

This rule is not a major rule under the SBREFA (5 U.S.C. 804(2)). It will not have a significant economic impact on a substantial number of small entities.

a. This rule does not have an annual effect on the economy of $100 million or more. There are no costs to permittees or any other part of the economy associated with this regulations change.

b. This rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The practice of falconry does not significantly affect costs or prices in any sector of the economy.

c. This rule will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Falconry is an endeavor of private individuals. Neither regulation nor practice of falconry significantly affects business activities.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we have determined the following:

a. This rule will not “significantly or uniquely” affect small governments in a negative way. A small government agency plan is not required. The eight States affected by this rule applied for the authority to issue permits for the practice of falconry.

b. This rule will not produce a Federal mandate of $100 million or greater in any year. It is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

In accordance with E.O. 12630, the rule does not have significant takings implications. A takings implication assessment is not required. This rule does not contain a provision for taking of private property.

This rule does not have sufficient Federalism effects to warrant preparation of a Federalism assessment under E.O. 13132. The States being delegated authority to issue permits to conduct falconry have requested that authority. No significant economic impacts are expected to result from the State regulation of falconry.

In accordance with E.O. 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

We examined this rule under the Paperwork Reduction Act of 1995. OMB has approved the information collection requirements of the Migratory Bird Permits Program and assigned OMB control number 1018-0022, which expires November 30, 2013. This regulation change does not add to the approved information collection. Information from the collection is used to document take of raptors from the wild for use in falconry and to document transfers of raptors held for falconry between permittees. A Federal agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

We evaluated the environmental impacts of the changes to these regulations, and determined that this rule does not have any environmental impacts. Within the spirit and intent of the Council on Environmental Quality's regulations for implementing the National Environmental Policy Act (NEPA), and other statutes, orders, and policies that protect fish and wildlife resources, we determined that these regulatory changes do not have a significant effect on the human environment.

Under the guidance in Appendix 1 of the Department of the Interior Manual at 516 DM 2, we conclude that the regulatory changes are categorically excluded because they “have no or minor potential environmental impact” (516 DM 2, Appendix 1A(1)). No more comprehensive NEPA analysis of the regulations change is required.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations With Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated potential effects on Federally recognized Indian Tribes and have determined that this rule will not interfere with Tribes' ability to manage themselves or their funds or to regulate falconry on Tribal lands.

E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Because this rule only affects the practice of falconry in the United States, it is not a significant regulatory action under E.O. 12866, and will not significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

Socioeconomic. This action will not have discernible socioeconomic impacts.

Raptor populations. This rule will not change the effects of falconry on raptor populations. We have reviewed and approved the State regulations.

Endangered and threatened species. This rule does not change protections for endangered and threatened species.

Section 7 of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531 et seq. ), requires that “The Secretary [of the Interior] shall review other programs administered by him and utilize such programs in furtherance of the purposes of this chapter” (16 U.S.C. 1536(a)(1)). It further states that the Secretary must “insure that any action authorized, funded, or carried out * * * is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat” (16 U.S.C. 1536(a)(2)). Delegating falconry permitting authority to States with approved programs will not affect threatened or endangered species or their habitats in the United States.

For the reasons stated in the preamble, we amend subpart C of part 21, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows:

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2011 TAC of “other flatfish” in the Bering Sea Subarea is 3,000 metric tons (mt) established by the final 2011 and 2012 harvest specifications for groundfish in the BSAI (76 FR 11139, March 1, 2011) and apportionment of the reserves (76 FR 53840, August 30, 2011).

In accordance with § 679.20(d)(1)(iii), the Administrator, Alaska Region, NMFS, has determined that the TAC of “other flatfish” in the BSAI will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,900 mt, and is setting aside the remaining 100 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for “other flatfish” in the BSAI.

“Other flatfish” includes all flatfish species, except for halibut (a prohibited species), Alaska plaice, arrowtooth flounder, flathead sole, Greenland turbot, Kamchatka flounder, rock sole, and yellowfin sole.

After the effective dates of this closure, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA) finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of the “other flatfish” fishery in the Bering Sea Subarea of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent and relevant data only became available as of November 14, 2011. The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.