        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R05-OAR-2007-0587; FRL-9130-1]
        Approval of Implementation Plans of Wisconsin: Nitrogen Oxides Reasonably Available Control Technology

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:

          EPA is proposing to approve revisions to the Wisconsin State Implementation Plan (SIP) submitted on June 12, 2007 and on September 14, 2009. These revisions incorporate provisions related to the implementation of nitrogen oxides (NOX) Reasonably Available Control Technology (RACT) for major sources in the Milwaukee-Racine and Sheboygan ozone nonattainment areas. EPA is proposing to approve SIP revisions that address the requirements found in section 182(f) of the Clean Air Act (CAA). EPA is also proposing to approve other miscellaneous rule changes that affect NOX regulations that were previously adopted and approved into the SIP.

          DATES:
          Comments must be received on or before April 23, 2010.

          ADDRESSES:
          Submit your comments, identified by Docket ID No. EPA-R05-OAR-2007-0587, by one of the following methods:
          1. http://www.regulations.gov: Follow the on-line instructions for submitting comments.
          2. E-mail:
            damico.genevieve@epa.gov.

          3. Fax: (312) 385-5501.
          4. Mail: Genevieve Damico, Acting Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
          5. Hand Delivery: Genevieve Damico, Acting Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

            Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-2007-0587. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI or otherwise protected. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters and any form of encryption and should be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

            Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Douglas Aburano, Environmental Engineer, at (312) 353-6960, before visiting the Region 5 office.

          FOR FURTHER INFORMATION CONTACT:

          Douglas Aburano, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-6960, aburano.douglas@epa.gov.

        SUPPLEMENTARY INFORMATION:

        Table of Contents

          I. What Action Is EPA Proposing To Take?
          II. W hat Are the NOX RACT Requirements?
          III. Analysis of Wisconsin's NOX RACT Submittal
          IV. Proposed Action
          V. Statutory and Executive Order Reviews

        I. What Action Is EPA Proposing To Take?
        Throughout this document wherever “we,” “us,” or “our” are used, we mean EPA.
        NOX RACT Approval

        EPA is proposing to approve revisions to Wisconsin's SIP, submitted on June 12, 2007 and on September 14, 2009. The CAA amendments of 1990 introduced the requirement for existing major stationary sources of NOX in nonattainment areas to install and operate NOX RACT. Specifically, section 182(b)(2) of the CAA requires States to adopt RACT for all major sources of volatile organic compounds (VOC) in ozone nonattainment areas; section 182(f) extends the RACT provisions to major stationary sources of NOX.
        Wisconsin was not required to adopt NOX RACT rules under the 1-hour ozone standard because all of the ozone nonattainment areas in Wisconsin were covered by a NOX waiver that was approved in the Federal Register on January 26, 1996 (61 FR 2428). This NOX waiver, issued under section 182(f) of the CAA, exempted the affected areas from the RACT and nonattainment New Source Review requirements for major stationary sources of NOX. Wisconsin is, however, required to adopt NOX RACT rules for the 1997 8-hour ozone standard because a NOX waiver has not been issued under this ozone standard. The NOX RACT submittals were due on September 15, 2006.
        Approval of Other Non-RACT NOX Rules

        Additionally, the Wisconsin Department of Natural Resources (WDNR) submitted minor additions and amendments to other non-RACT NOX rules as part of the June 12, 2007 and September 14, 2009 submittals. The non-RACT NOX rules that are being changed were originally approved into Wisconsin's SIP on November 13, 2001 (66 FR 56931). These other NOX rules were submitted as part of Wisconsin's reasonable further progress SIP for the 1-hour ozone standard.
        II. What Are the NOX RACT Requirements?

        The CAA amendments of 1990 introduced the requirement for existing major stationary sources of NOX in nonattainment areas to install and operate NOX RACT. Specifically, section 182(b)(2) of the CAA requires States to adopt RACT for all major sources of VOC in ozone nonattainment areas, and section 182(f) requires the RACT provisions for major stationary sources of oxides of nitrogen. “RACT” is defined as the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility (44 FR 53762).

        Section 302 of the CAA defines major stationary source as any facility which has the potential to emit 100 tons per year of any air pollutant. For serious ozone nonattainment areas, a major source is defined by section 182(c) as a source that has the potential to emit 50 tons of NOX per year. For severe ozone nonattainment areas, a major source is defined by section 182(d) as a source that has the potential to emit 25 tons per year.
        These requirements can be waived under section 182(f) of the CAA. See EPA memo dated December 16, 1993 from John Seitz, Director, Office of Air Quality Planning and Standards to Air Division Directors entitled, “Guideline for Determining the Applicability of Nitrogen Oxide Requirements Under Section 182(f).” Waivers can be granted if the Administrator determines that any one of the following tests is met:

        1. In any area, the net air quality benefits are greater in the absence of NOX reductions from the sources concerned;

        2. In nonattainment areas not within an ozone transport region, additional NOX reductions would not contribute to ozone attainment in the area; or

        3. In nonattainment areas within an ozone transport region, additional NOX reductions would not produce net ozone air quality benefits in the transport region.
        Wisconsin received a NOX waiver under the 1-hour ozone standard on January 26, 1996 and, therefore, was not required to adopt NOX RACT regulations for that standard. However, there are areas in Wisconsin that are nonattainment for the 1997 8-hour ozone standard. These areas were designated nonattainment on June 15, 2004 (69 FR 23947). Because Wisconsin does not have a waiver for the NOX requirements for the 1997 8-hour ozone standard, NOX RACT rules are required in the areas that are classified as moderate or above.

        Since the only areas in Wisconsin that are required to adopt NOX RACT are classified as moderate for the 1997 8-hour ozone standard, the rules that have been adopted only need to address sources with the potential to emit 100 tons per year. The NOX RACT rules were to have been submitted September 15, 2006.
        III. Analysis of Wisconsin's NOX RACT Submittal
        A. Nature of Wisconsin's Submittal

        On June 12, 2007, Wisconsin submitted rules and supporting material for addressing the NOX RACT requirements. WDNR held a public hearing for these rules on March 15, 2007. WDNR also provided a comment period that was announced on February 2, 2007 and ended on March 19, 2007.

        On September 14, 2009, Wisconsin submitted a supplemental SIP revision and additional supporting material for addressing the NOX RACT requirements. WDNR held a public hearing for these rules on December 5, 2008. WDNR also provided a comment period that was announced on October 30, 2008 and ended on December 10, 2008.
        B. Summary of Wisconsin's Rules
        June 12, 2007 Submittal

        Chapter NR 428 of the Wisconsin Administrative Code Environmental Protection Air Pollution Control, entitled, “Control of Nitrogen Compound Emissions,” includes provisions limiting the emissions of NOX from stationary sources in Wisconsin. While Ch. NR 428 contains many sections, Wisconsin submitted only a portion of them to address the NOX RACT requirements. Specifically, Wisconsin submitted rules 428.02(7m), 428.04(2)(h)1. and 2., 428.05(3)(e)1. to 4., 428.20 through 428.26, 484.04(13), 484.04(15m) and (16m), and 484.04(21m), (26m)(bm), (26m)(d), and (27) for Federal approval.
        The RACT rules establish NOX emission limitations for major sources in the moderate ozone nonattainment areas of Wisconsin, which include the counties of Kenosha, Milwaukee, Ozaukee, Racine, Sheboygan, Washington, and Waukesha. Major sources in those counties were required to be in compliance with the NOX RACT program by May 1, 2009. The RACT rules have been adopted and passed by all necessary State law-making bodies, and the rules became effective on August 1, 2007.

        The RACT rules require individual emission units at a major source to be in compliance with specific emission limitations defined by source category and fuel types. The NOX emission limitations are defined based on available control technologies and cost-effectiveness of up to $2,500 per ton of controlled NOX. However, the emission limits are not applicable if the unit operates below an ozone season threshold level that is related to cost-effectiveness of control. Once a unit exceeds the threshold during any ozone season after the effective date of the rule, it is always subject to the RACT requirements. A phased compliance schedule is specified for electric utility coal fired boilers to account for installation and electric reliability needs. All emission limitations across the source categories are expressed on a 30-day rolling basis and are to be met on a year-round basis.

        The rules require compliance monitoring, record keeping, and reporting specified for each source category. For units already required to do so, emissions are to be measured according to 50 CFR Part 75 CEMs monitoring requirements. Remaining units are specified by source category to either install and operate continuous NOX emission monitors according to 40 CFR Part 60 methods or perform stack testing every two years. The rules specify the methods and calculations used to tabulate emissions under each requirement. Units are required to have a malfunction and abatement plan for the monitoring system.
        The rules establish a number of default exemptions from the emission limits for units meeting certain conditions. The exemptions streamline compliance by identifying sources for which control cost-effectiveness is beyond that considered in the rules. These sources otherwise would likely qualify for a variance to the RACT requirement. The rules identify minimal recordkeeping requirements to ensure continued qualification under the applicable exemption. There are generally two bases for the exemptions: (1) unit types or applications with low operation levels; and (2) units which are meeting the emission limit and have sufficient monitoring requirements in place or are well controlled and for which the incremental control to meet the RACT emission limit is significantly more costly.
        Alternative compliance methods in the rule include emissions averaging, a case-by-case RACT determination, and a Clean Air Interstate Rule (CAIR) equivalency provision. These programs have been structured to meet EPA's guidance for economic incentive programs, public notification, and review requirements.
        Lastly, to address utility reliability issues, the rules allow an entity to request a temporary waiver of an emission limit. This provision establishes a process to evaluate an emission limit exceedance due to an uncontrollable or unforeseeable event during the course of which service must be maintained to un-interruptible customers. The request for a waiver is after the event and is subject to review and approval of both WDNR and EPA.
        The major provisions of the RACT rules are:

        NR 428.02 Definitions
        NR 428.20 Applicability and purpose.
        NR 428.21 Emission unit exceptions.
        NR 428.22 Emission limitation requirements.
        NR 428.23 Demonstrating compliance with emission limitations.
        NR 428.24 Record keeping and reporting.
        NR 428.25 Alternative compliance methods and approaches.
        NR 428.26 Utility reliability waiver.
        Provisions related to the RACT rule are:

        NR 400 Air pollution control definitions
        NR 439 Reporting, recordkeeping, testing, inspection, and determination of compliance requirements
        NR 484.04 Incorporation by reference.

        Several non-substantive modifications are included in this package addressing the units of applicable emission limitations for reciprocating engines under existing NR 428 requirements.
        September 14, 2009 Submittal

        The Wisconsin Natural Resources Board adopted an order to: renumber and amend 428.22(1)(d); amend NR 428.04(1) and (3)(b), 428.05(1) and (4)(b)2., 428.07(intro.), (1)(a) and (b)1. and 3., (3) and (4)(c), 428.08(title) and (2)(title), 428.09(2)(a), 428.20(1), 428.22(2)(intro.), 428.23(1)(b)1., 428.24(1)(b)(intro.) and 428.25(1)(a)1.a. and c. and (3)(b); and to create NR 428.02(7e), 428.08(2)(f), 428.12, 428.22(1)(d)2., and 428.23(1)(b)9., relating to modification of existing rules for control of NOX emitted by stationary sources in the ozone nonattainment area in southeastern Wisconsin. The proposed revisions relate to issues for SIP approvability and miscellaneous implementation issues.
        The rule revisions address two areas: (1) Incorporating the term and a definition of “maximum theoretical emissions” in place of “potential to emit” in order to adequately identify major sources; and (2) revisions identified by the department and stakeholders which clarify and facilitate implementation of requirements within ch. NR 428.
        There are a number of non-substantive revisions in the rule that address clarification and implementation issues, which are consistent with the original intent of the rules. These revisions include:
        1. Removal of the reference to the Federal CAIR and usage of standard terms in identifying the appropriate units.
        2. Allowance of additional time for sources to submit an application for an alternative emission limit or compliance schedule.
        3. Allowance for a source with an approved alternative RACT requirement to participate in emissions averaging for purposes of demonstrating compliance with the original RACT limitation or schedule.
        4. The revision avoids triggering new source NOX limits under rule NR 428.04 when the modification is made solely to comply with existing source NOX control requirements under rules NR 428.05 or 428.22.
        5. Clarification and simplification of monitoring and reporting requirements.
        6. Removal of the reference to “modified” sources in the applicability statement in rule NR 428.05(1).

        7. Identification of limited periods when the current form of the emission limitation for glass furnaces is not appropriate. During these periods the numerical emission limit does not apply. Instead, the source is required to minimize NOX emissions through combustion optimization techniques described in rule NR 439.096.
        There are no changes from the June 12, 2007 submittal that alter the primary emission limitations or that alter those individual emissions units subject to emission requirements.
        C. Review of Wisconsin Submittal
        NOX RACT Portion of June 12, 2007 and September 14, 2009 Submittals
        The WDNR created Subchapter IV entitled “NOX Reasonably Available Control Technology Requirements” to address the NOX RACT requirements of the CAA. Subchapter IV consists of rules 428.20 through 428.26.

        Rule 428.20 “Applicability and Purpose” establishes the geographic scope of the rule and the sources that are subject to the rule. The rules apply in the nonattainment areas that are classified as moderate under the 1997 8-hour ozone standard. There are no nonattainment areas with a classification higher than moderate in Wisconsin. Therefore, the rules apply in the Milwaukee-Racine area (Kewaunee County, Milwaukee County, Ozaukee County, Racine County, Washington County, and Waukesha County) and Sheboygan County. The requirements apply to the owner or operator of a NOX emissions unit which is located at a facility with a combined total potential to emit for all NOX emissions units of 100 tons per year or more. This is consistent with the CAA and EPA guidance. Rule 428.20 refers to Wisconsin's definition of “Maximum theoretical emissions” found in Wisconsin rule NR 428.02(7e). These two rules, in combination, satisfy the requirements for adequate applicability.

        NR 428.02 “Definitions” adds the definition of “maximum theoretical emissions,” rule NR 428.02(7e). This addition is acceptable. It is referred to under NR 428.20, the “Applicability and purpose” section of the NOX RACT rules.

        NR 428.21 “Emission unit exceptions” exempts certain units from emission limits but still requires monitoring emissions and keeping records for these units. Should these units no longer qualify for an exemption, emission limits will then apply. The rule establishes a number of default exemptions from the emission limits for units meeting certain conditions. The rule identifies minimal recordkeeping requirements to ensure continued qualification under the applicable exemption. There are generally two bases for the exemptions: (1) Unit types or applications with low operation levels; and (2) units which are meeting the emission limit and have sufficient monitoring requirements in place or are well controlled and for which the incremental control to meet the RACT emission limit is significantly more costly. Wisconsin has justified these exemptions based on cost-effectiveness. The technical support document found in the docket associated with this action has more details on the justification for these exemptions.

        The one exemption not based on cost-effectiveness but rather on a technical basis is the exemption under rule NR 428.21(g) for a “gaseous fuel fired unit used to control VOC emissions”. The primary consideration in design and operation of such an emissions unit is for the efficient destruction of VOC emissions and not to minimize NOX emissions. For this reason this exemption is appropriate.
        NR 428.22 “Emission limitation requirements” establishes NOX emission rate limits by source category applicable to emission units operating above the applicability threshold. The source categories, operating levels, and emission limitations are presented in Table 1. The emission limits contained in the rule are a 30-day rolling average requirement applicable on a year-round basis. A unit subject to an emission limitation must demonstrate compliance on an individual basis by May 1, 2009. These limits are consistent with EPA guidance for the various categories for which Alternative Control Technology documents have been issued and with more recent State and Federal NOX control programs.

          Table 1—NOX RACT Categorical Emission Limits 1

            Source category
            Capacity threshold
            NOX emission limitation(30 day rolling average)

            Solid Fuel-Fired Boiler
            =>1000 mmBtu/hr
            Tangential-fired, 0.10 lbs/mmBtu.

            Wall-fired, 0.10 lbs/mmBtu.

            Cyclone-fired, 0.10 lbs/mmBtu.

            Fluidized bed-fired, 0.10 lbs/mmBtu.

            Arch-fired, 0.18 lbs/mmBtu.

            =>500-999 mmBtu/hr
            Tangential-fired, 0.15 lbs/mmBtu.

            Wall-fired (low heat release), 0.15 lbs/mmBtu.

            Wall-fired (high heat release), 0.17 lbs/mmBtu.

            Cyclone-fired, 0.15 lbs/mmBtu.

            Fluidized bed-fired, 0.10 lbs/mmBtu.

            Arch-fired, 0.18 lbs/mmBtu.

            =>250-495 mmBtu/hr
            Tangential-fired, 0.15 lbs/mmBtu.

            Wall-fired (low heat release), 0.15 lbs/mmBtu.

            Wall-fired (high heat release), 0.17 lbs/mmBtu.

            Cyclone-fired, 0.15 lbs/mmBtu.

            Fluidized bed-fired, 0.10 lbs/mmBtu.

            Arch-fired, 0.18 lbs/mmBtu.

            Stoker-fired, 0.20 lbs/mmBtu.

            50-249 mmBtu/hr
            Tangential-fired, 0.15 lbs/mmBtu.

            Wall-fired (low heat release), 0.15 lbs/mmBtu.

            Wall-fired (high heat release), 0.17 lbs/mmBtu.

            Cyclone-fired, 0.15 lbs/mmBtu.

            Fluidized bed-fired, 0.10 lbs/mmBtu.

            Arch-fired, 0.18 lbs/mmBtu.

            Stoker-fired, 0.25 lbs/mmBtu.

            Gaseous or Liquid Fuel-Fired Boiler
            =>100 mmBtu/hr
            Gaseous fuel, 0.08 lbs/mmBtu.

            =>100 mmBtu/hr
            Distillate oil, 0.10 lbs/mmBtu.

            =>65 mmBtu/hr
            Residual or waste oil, 0.15 lbs/mmBtu.

            Lime Kiln (manufacturing)
            =>50 mmBtu/hr
            Gaseous fuel, 0.10 lbs/mmBtu.

            Distillate oil, 0.12 lbs/mmBtu.

            Residual oil, 0.15 lbs/mmBtu.

            Coal, 0.60 lbs/mmBtu.

            Coke, 0.70 lbs/mmBtu.

            Glass Furnace 2

            =>50 mmBtu/hr
            2.0 lbs/ton of glass.

            Metal Reheat, Galvanizing, and Annealing Furnace
            =>75 mmBtu/hr
            0.08 lbs/mmBtu.

            Asphalt Plants
            =>65 mmBtu/hr
            Gaseous fuel, 0.15 lbs/mmBtu.

            Distillate oil, 0.20 lbs/mmBtu.

            Residual or waste oil, 0.27 lbs/mmBtu.

            Process Heating
            =>100 mmBtu/hr
            Gaseous fuel, 0.10 lbs/mmBtu.

            =>100 mmBtu/hr
            Distillate oil, 0.12 lbs/mmBtu.

            =>65 mmBtu/hr
            Residual or waste oil, 0.18 lbs/mmBtu.

            Simple Cycle Combustion Turbine
            =>50 MW
            Natural gas, 25 ppmdv @ 15% O2.

            Distillate oil, 65 ppmdv @ 15% O2.

            Biologically derived fuel, 35 ppmdv @ 15% O2.

            25-49 MW
            Natural gas, 42 ppmdv @ 15% O2.

            Distillate oil, 96 ppmdv @ 15% O2.

            Biologically derived fuel, 35 ppmdv @ 15% O2.

            Combined Cycle Turbine
            =>25 MW
            Natural gas, 9 ppmdv @ 15% O2.

            Distillate oil, l42 ppmdv @ 15% O2.

            10-24 MW
            Natural gas, 42 ppmdv @ 15% O2.

            Distillate oil, 42 ppmdv @ 15% O2.

            =>25 MW
            Biologically derived fuel, 35 ppmdv @ 15% O2.

            Reciprocating Engine
            =>500 horsepower
            Rich-burn units, 3.0 gr/bhp-hr.

            Lean-burn units, 3.0 gr/bhp-hr.

            Distillate-fuel units, 3.0 gr/bhp-hr.

            Natural Gas/Dual fuel, 3.0 gr/bhp-hr.

          (1) The compliance deadline for most sources was May 1, 2009. However, electric generating units have interim emission limits and extended compliance time frames. See Table 2.

          (2) During periods when the furnace is operating for purposes other than producing glass, NOX emissions must be minimized.

        For electric utility coal-fired boilers the rule sets a phased compliance schedule with interim emission limits for May 1, 2009 and final RACT emission limits by May 1, 2013. The purpose of the phased compliance schedule is to allow the electric utilities the necessary time to install post combustion controls while maintaining a reliable electric supply. Some control technologies, like selective catalytic reduction equipment, can take up to two years to install for an individual project. This is compounded by the fact that utilities are subject to limited installation windows that further restrict the installation schedule. On this basis, multiple installations cannot be fully accomplished on all electric utility boilers within the moderate nonattainment area by 2009. The schedule of phased limitations is provided in Table 2.

          Table 2—Compliance Schedule for Electric Utility Coal-Fired Boilers

            Compliance date
            Emission limits (lbs/mmbtu)
            Coal-fired boilers >1000 mmbtu/hr
            Coal-fired boilers >500 and <1000 mmbtu/hr

            May 1, 2009
            wall fired = 0.15
            wall fired = 0.20.

            tangential fired = 0.15
            tangential fired = 0.15.

            cyclone = 0.15
            cyclone = 0.20.

            fluidized bed = 0.15
            fluidized bed = 0.15.

            arch fired = 0.18
            arch fired = 0.18.

            May 1, 2013
            wall fired = 0.10
            wall fired = 0.17.

            tangential fired = 0.10
            tangential fired = 0.15.

            cyclone = 0.10
            cyclone = 0.15.

            fluidized bed = 0.10
            fluidized bed =0.10.

            arch fired = 0.18
            arch fired = 0.18.

        The emission limits for 2009 reflect NOX controls which can be installed within the intervening timeframe including combustion modifications and selective non-catalytic reduction systems. The final 2013 compliance date reflects the timing necessary for anticipated installations of selective catalytic reduction systems. The phased approach is also consistent with operating generating units on a system-wide basis and utilization of a multi-facility averaging program. In this manner, the phased emission limits set forth a RACT level of NOX control across utilities boilers on a schedule which is expeditious as practicable.
        Since the RACT emission limits are implemented on a schedule which is as expeditious as practicable the proposed phasing of electric utility boiler emission limits is acceptable.
        NR 428.23 “Demonstrating compliance with emission limitations” requires most sources subject to emission limitations to demonstrate compliance using continuous emissions monitoring. For electric generating unit sources this monitoring is based on 40 CFR part 75 methods, and for industrial sources monitoring is based on 40 CFR part 60 methods. For a few source categories with low variability in operations or emission rates, compliance is demonstrated by periodic stack testing. The emission monitoring requirements are consistent with existing State and EPA programs. The rule will also allow a source to request approval of an alternative monitoring method. Any alternative monitoring method must be approved by both WDNR and EPA. These compliance methods are acceptable.
        NR 428.24 “Record keeping and reporting” requires all affected unit owners and operators to maintain records and submit reports to the WDNR. These records and reports will be used to determine compliance, instances of noncompliance and also to determine if exempt units continue to remain exempt by staying below specific thresholds. These provisions are acceptable.
        NR 428.25 “Alternative compliance methods and approaches” provides affected units with several compliance options:

          1. Emissions from one or more units subject to a RACT emission limitation may be averaged with other similar units at an affected facility. Except for “new units”, which are excluded from averaging, all similar units, both RACT and non-RACT affected units, at a facility must be included in the averaging program. This is to eliminate a potential shift in generation/production to any unit not subject to the RACT requirements.

          2. Emissions averaging applies the current applicable emission limit of each unit on a heat input weighted basis to determine an average facility or system emission limit. EPA requires that averaging programs like the system averaging in the rule have an additional emission reduction applied to the facility or system emission limit as an environmental benefit in lieu of the provided flexibility. (See Improving Air Quality with Economic Incentive Programs, EPA-452/R-01-001, Jan. 2001.) Under facility averaging, the environmental benefit is the implementation of an annual and ozone season mass cap.

          3. Emissions units may participate in an emission averaging program across multiple units and facilities. Each unit can only participate in one type of averaging program on an annual basis (facility or system-wide). The environmental benefit is the EPA default of 10% reduction in the emission rate on an annual and an ozone season basis.
          4. An individual source may request an alternative emission limitation or compliance schedule, with a determination made on a case-by-case basis by the WDNR. An alternative emission limit may be the result of an engineering assessment that demonstrates RACT controls are not economically or technically feasible for that unit. Any determination of an alternative limit or schedule must also account for a unit's ability to participate in either a facility or system-wide emissions averaging program. These alternative RACT determinations must also have written EPA approval.

        As mentioned above, these alternative compliance methods must meet the requirements found in EPA's Economic Incentive Policy or guidance (Improving Air Quality with Economic Incentive Programs, EPA-452/R-01-001, Jan. 2001).

        Rule 428.25(3) allows sources that are subject to CAIR under 40 CFR Part 97 to demonstrate compliance with NOX RACT requirements by complying with CAIR requirements. EPA is not acting on this portion of Wisconsin's rules. At the time these rules were adopted, EPA guidance allowed approval of these provisions. On December 23, 2008, the D.C. Circuit Court remanded CAIR to the EPA. Until EPA issues a replacement rule for CAIR, EPA cannot approve any NOX RACT rules making a claim of “CAIR equals RACT.” Once a replacement rule for CAIR is issued, EPA can revisit the “CAIR equals RACT” provisions and evaluate them for approvability.
        NR 428.26 “Utility reliability waiver ” contains a provision that allows an electric or steam utility or natural gas transmission facility to request a waiver from an applicable emission limit for a period of time due to reliability issues. This provision acknowledges that these facilities serve non-interruptible customers and uncontrollable events may occur which result in an increase in emissions. Facilities generating steam for process and manufacturing purposes are not eligible for the waiver.
        Non-RACT Portion of June 12, 2007 and September 14, 2009 Submittals
        A number of NOX regulations were approved into the Wisconsin SIP on November 13, 2001 (66 FR 56931). They were approved as part of fulfilling the reasonable further progress requirements for the Milwaukee-Racine and Sheboygan County 1-hour ozone nonattainment areas. Proposed changes to these “non-RACT” portions of ch. NR 428 are as follows.
        NR 428.02 “Definitions” adds the definition of “process heater,” rule NR 428.02(7e). This addition is acceptable.
        NR 428.04(2)(h)1. and 2., 428.05(3)(e)1. to 4, have been corrected to use the units of “grams per brake horsepower-hour” from “grams per brake horsepower.” These corrections are acceptable.
        The revision avoids triggering new source NOX limits under ch. NR 428.04 when the modification is made solely to comply with existing source NOX control requirements under rules NR 428.05 or 428.22. This modification does not alter the original intended emission limitation of the rule and therefore is acceptable.
        The revisions make a number of clarifications and simplifications to the monitoring and reporting requirements under 428.23(1)(b)1., 428.23(1)(b)9, and 428.24(1)(b)(intro.). These changes are not substantive in nature nor do they eliminate dual requirements. Therefore these modifications are acceptable.
        The applicability statement in rule NR 428.05(1) is being revised to remove the reference to “modified” sources. The use of the term “modified” in this case identified a source modified before February 1, 2001 as an existing source. Some inferred this meant a source existing prior to that date but modified afterwards is not subject to an emission limit. The applicability language is altered to clearly identify units subject to an existing source emission limitation. This correction is acceptable.
        IV. Proposed Action

        EPA is proposing to approve revisions to the Wisconsin SIP submitted on June 12, 2007 and September 14, 2009. These revisions incorporate provisions related to the implementation of NOX RACT for major sources in the Milwaukee-Racine and Sheboygan ozone nonattainment areas. The only rule that EPA is not acting on in the Wisconsin submittals is the “CAIR equals RACT” provision found in 428.25(3). This rule is separable from the rest of the NOX RACT rules and the rest of the submittal will not be affected if this rule is not acted on.
        The SIP revisions that EPA is proposing to approve address the requirements found in section 182(f) of the CAA.
        V. Statutory and Executive Order Reviews
        Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
        • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

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

        • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
        • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
        • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
        • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
        • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
        • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
        • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
        In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

          List of Subjects in 40 CFR part 52
          Environmental protection, Air pollution control, Electric utilities, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide.

          Dated: March 11, 2010.
          Walter W. Kovalick, Jr.,
          Acting Regional Administrator, Region 5.

      [FR Doc. 2010-6519 Filed 3-23-10; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF JUSTICE
        Drug Enforcement Administration
        21 CFR Part 1308
        [Docket No. DEA-382]
        Schedules of Controlled Substances: Temporary Placement of Three Synthetic Phenethylamines Into Schedule I

          AGENCY:
          Drug Enforcement Administration, Department of Justice.

          ACTION:
          Notice of Intent.

          SUMMARY:

          The Deputy Administrator of the Drug Enforcement Administration (DEA) is issuing this notice of intent to temporarily schedule three synthetic phenethylamines into the Controlled Substances Act (CSA) pursuant to the temporary scheduling provisions of 21 U.S.C. 811(h). The substances are 2-(4-iodo-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine (25I-NBOMe; 2C-I-NBOMe; 25I; Cimbi-5), 2-(4-chloro-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine (25C-NBOMe; 2C-C-NBOMe; 25C; Cimbi-82), and 2-(4-bromo-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine (25B-NBOMe; 2C-B-NBOMe; 25B; Cimbi-36) [hereinafter 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe]. This action is based on a finding by the Deputy Administrator that the placement of these synthetic phenethylamines into Schedule I of the CSA is necessary to avoid an imminent hazard to the public safety. Any final order will be published in the Federal Register and may not be issued prior to November 12, 2013. Any final order will impose the administrative, civil, and criminal sanctions and regulatory controls applicable to Schedule I substances under the CSA on the manufacture, distribution, possession, importation, exportation, research, and conduct of instructional activities of these synthetic phenethylamines.

          FOR FURTHER INFORMATION CONTACT:
          Ruth A. Carter, Chief, Policy Evaluation and Analysis Section, Office of Diversion Control, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152, Telephone (202) 598-6812.

        SUPPLEMENTARY INFORMATION:
        Background
        Section 201 of the CSA, 21 U.S.C. 811, provides the Attorney General with the authority to temporarily place a substance into Schedule I of the CSA for two years without regard to the requirements of 21 U.S.C. 811(b) if he finds that such action is necessary to avoid imminent hazard to the public safety. 21 U.S.C. 811(h). In addition, if proceedings to control a substance are initiated under 21 U.S.C. 811(a)(1), the Attorney General may extend the temporary scheduling for up to one year. 21 U.S.C. 811(h)(2).
        Where the necessary findings are made, a substance may be temporarily scheduled if it is not listed in any other schedule under section 202 of the CSA, 21 U.S.C. 812, or if there is no exemption or approval in effect under section 505 of the Federal Food, Drug, and Cosmetic Act (FD&C Act), 21 U.S.C. 355, for the substance. 21 U.S.C. 811(h)(1). The Attorney General has delegated his authority under 21 U.S.C. 811 to the Administrator of the DEA, who in turn has delegated her authority to the Deputy Administrator of the DEA. 28 CFR 0.100, 0.104.
        Section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), requires the Deputy Administrator to notify the Secretary of the Department of Health and Human Services (HHS) of his intention to temporarily place a substance into Schedule I of the CSA.1
           As 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe are not currently listed in any schedule under the CSA, the DEA believes that the conditions of 21 U.S.C. 811(h)(1) have been satisfied. Any comments submitted by the Assistant Secretary in response to this notification shall be taken into consideration before a final order is published. 21 U.S.C. 811(h)(4).

            1 Because the Secretary of the HHS has delegated to the Assistant Secretary for Health of the HHS the authority to make domestic drug scheduling recommendations, for purposes of this Notice of Intent, all subsequent references to “Secretary” have been replaced with “Assistant Secretary.” As set forth in a memorandum of understanding entered into by HHS, the Food and Drug Administration (FDA), and the National Institute on Drug Abuse (NIDA), FDA acts as the lead agency within HHS in carrying out the Assistant Secretary's scheduling responsibilities under the CSA, with the concurrence of NIDA. 50 FR 9518, Mar. 8, 1985.

        To make a finding that placing a substance temporarily into Schedule I of the CSA is necessary to avoid an imminent hazard to the public safety, the Deputy Administrator is required to consider three of the eight factors set forth in section 201(c) of the CSA, 21 U.S.C. 811(c): The substance's history and current pattern of abuse; the scope, duration and significance of abuse; and what, if any, risk there is to the public health. 21 U.S.C. 811(c)(4)-(6). Consideration of these factors includes actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution. 21 U.S.C. 811(h)(3).
        A substance meeting the statutory requirements for temporary scheduling may only be placed in Schedule I. 21 U.S.C. 811(h)(1). Substances in Schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. 21 U.S.C. 812(b)(1). Available data and information for 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe indicate that these three synthetic phenethylamines have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision.
        Synthetic Phenethylamines

        The 2-methoxybenzyl series of 2C phenethylamine substances, such as 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe, has been developed over the last 10 years for use in mapping and investigating the serotonin receptors in the mammalian brain. 25I-NBOMe and 25B-NBOMe were first described by legitimate research laboratories in 2003. Subsequent studies involving these two substances appeared in the scientific literature starting in 2006. 25C-NBOMe first appeared in the scientific literature in 2011. No approved medical use has been identified for these synthetic phenethylamines, nor have they been approved by the FDA for human consumption. Synthetic 2C phenethylamine substances, of which 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe are representative, are so-termed for the two-carbon ethylene group between the phenyl ring and the amino group of the phenethylamine and are substituted with methoxy groups at the 2 and 5 positions of the phenyl ring. Numerous blotter papers and food items have been analyzed, and combinations of one or more of 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe have been identified as adulterants. Bulk quantities of these substances have been encountered as powders and liquid solutions.
        From November 2011 through June 2013, according to the System to Retrieve Information from Drug Evidence 2
           (STRIDE) data, there are 54 exhibits involving 27 cases for 25I-NBOMe; 27 exhibits involving 12 cases for 25C-NBOMe; and 3 exhibits involving 3 cases for 25B-NBOMe. From June 2011 through March 2013, the National Forensic Laboratory Information System 3
           (NFLIS) registered 689 reports containing these synthetic phenethylamines (25I-NBOMe-582 reports; 25C-NBOMe-94 reports; 25B-NBOMe-13 reports) across 33 states. No instances involving 25I-NBOMe, 25C-NBOMe, or 25B-NBOMe were reported in NFLIS prior to June 2011.

            2 STRIDE includes data on analyzed samples from DEA laboratories.

            3 NFLIS is a database that collects scientifically verified data on analyzed samples in state and local forensic laboratories.

        Factor 4. History and Current Pattern of Abuse
        One or more 2-methoxybenzyl analogues of the 2C compounds described here have been available over the Internet since 2010. The first identified domestic law enforcement encounter with 25I-NBOMe occurred in June 2011 in Milwaukee, Wisconsin.
        Information from published studies and law enforcement reports, supplemented with discussions on Internet Web sites and personal communications, document abuse of 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe by nasal insufflation of powders, intravenous injection or nasal absorption of liquid solutions, sublingual or buccal administration of blotter papers, and consumption of food items laced with these substances. These sources also report that 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe are often purported to be Schedule I hallucinogens like lysergic acid diethylamide (LSD). Reports document that the abuse of these substances can cause severe toxic reactions, including death.
        According to United States Customs and Border Protection data, bulk quantities of powdered 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe have been seized from shipments originating overseas, particularly from Asia. Given the relatively small quantity of these substances predicted to produce a hallucinogenic effect in humans, single seizures of these substances are capable of producing hundreds of thousands to millions of dosage units. Large seizures of these substances prepared on blotter papers have also been reported. Abuse of 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe has been characterized with acute public health and safety issues domestically and abroad. In response, a number of states and foreign governments have controlled these substances.
        Factor 5. Scope, Duration and Significance of Abuse
        According to forensic laboratory reports, the first law enforcement encounter with 25I-NBOMe in the United States occurred in June 2011. According to NFLIS, 689 exhibits involving 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe were submitted to forensic laboratories between June 2011 and March 2013 from a number of states including Alabama, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Iowa, Indiana, Illinois, Kansas, Kentucky, Louisiana, Maryland, Maine, Minnesota, Missouri, New Hampshire, New Jersey, New Mexico, North Dakota, Nebraska, Nevada, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Wisconsin, and Wyoming. The number of reports submitted to NFLIS involving 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe has increased in each of the last five quarters where data is available. According to STRIDE, there are 84 records that identify 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe in evidence submitted to DEA laboratories between November 2011 and June 2013.
        Factor 6. What, if Any, Risk There Is to the Public Health
        In 2012 and 2013, emergency department physicians and toxicologists published and presented numerous case reports of patients treated for exposure to 25I-NBOMe. The adverse health effects reported include tachycardia, hypertension, agitation, aggression, visual and auditory hallucinations, seizures, hyperpyrexia, clonus, elevated white cell count, elevated creatine kinase, metabolic acidosis, rhabdomyolysis, and acute kidney injury.
        Medical examiner and postmortem toxicology reports from 11 states implicate some combination of 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe in the death of at least 14 individuals. These reports suggest that 11 individuals died of acute toxicity, and 3 individuals died of unpredictable or violent behavior due to 25I-NBOMe toxicity. 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe have each been detected in postmortem blood toxicology for cases of acute toxicity.
        Since abusers obtain these drugs through unknown sources, the identity, purity, and quantity of these substances is uncertain and inconsistent, thus posing significant adverse health risks to users. There are no recognized therapeutic uses of these substances in the United States and possible deadly drug interactions between 25I-NBOMe and FDA approved medications have been noted.
        Finding of Necessity of Schedule I Placement To Avoid Imminent Hazard to Public Safety
        Based on the above data and information, the continued uncontrolled manufacture, distribution, importation, exportation, and abuse of 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe pose an imminent hazard to the public safety. The DEA is not aware of any currently accepted medical uses for these synthetic phenethylamines in the United States. A substance meeting the statutory requirements for temporary scheduling, 21 U.S.C. 811(h)(1), may only be placed in Schedule I. Substances in Schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. Available data and information for 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe indicate that these three synthetic phenethylamines have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. As required by section 201(h)(4) of the CSA, 21 U.S.C. 811(h), the Deputy Administrator through a letter dated September 3, 2013, notified the Assistant Secretary of the intention to temporarily place these three synthetic phenethylamines in Schedule I.
        Conclusion

        This notice of intent initiates an expedited temporary scheduling action and provides the 30-day notice pursuant to section 201(h) of the CSA, 21 U.S.C. 811(h). In accordance with the provisions of section 201(h) of the CSA, 21 U.S.C. 811(h), the Deputy Administrator considered available data and information, herein set forth the grounds for his determination that it is necessary to temporarily schedule three synthetic phenethylamines, 2-(4-iodo-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine (25I-NBOMe; 2C-I-NBOMe; 25I; Cimbi-5), 2-(4-chloro-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine (25C-NBOMe; 2C-C-NBOMe; 25C; Cimbi-82) and 2-(4-bromo-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine (25B-NBOMe; 2C-B-NBOMe; 25B; Cimbi-36), in Schedule I of the CSA, and finds that placement of these synthetic phenethylamines into Schedule I of the CSA is warranted in order to avoid an imminent hazard to the public safety.

        Because the Deputy Administrator hereby finds that it is necessary to temporarily place these synthetic phenethylamines into Schedule I to avoid an imminent hazard to the public safety, any subsequent final order temporarily scheduling these substances will be effective on the date of publication in the Federal Register, and will be in effect for a period of two years, with a possible extension of one additional year, pending completion of the permanent or regular scheduling process. 21 U.S.C. 811(h)(1) and (2). It is the intention of the Deputy Administrator to issue such a final order as soon as possible after the expiration of 30 days from the date of publication of this notice. 25I-NBOMe, 25C-NBOMe, and 25B-NBOMe will then be subject to the regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, possession, importation, exportation, research, and conduct of instructional activities of a Schedule I controlled substance under the CSA.
        The CSA sets forth specific criteria for scheduling a drug or other substance. Regular scheduling actions in accordance with 21 U.S.C. 811(a) are subject to formal rulemaking procedures done “on the record after opportunity for a hearing” conducted pursuant to the provisions of 5 U.S.C. 556 and 557. 21 U.S.C. 811. The regular scheduling process of formal rulemaking affords interested parties with appropriate process and the government with any additional relevant information needed to make a determination. Final decisions that conclude the regular scheduling process of formal rulemaking are subject to judicial review. 21 U.S.C. 877. Temporary scheduling orders are not subject to judicial review. 21 U.S.C. 811(h)(6).
        Regulatory Matters

        Section 201(h) of the CSA, 21 U.S.C. 811(h), provides for an expedited temporary scheduling action where such action is necessary to avoid an imminent hazard to the public safety. As provided in this subsection, the Attorney General may, by order, schedule a substance in Schedule I on a temporary basis. Such an order may not be issued before the expiration of 30 days from (1) the publication of a notice in the Federal Register of the intention to issue such order and the grounds upon which such order is to be issued, and (2) the date that notice of a proposed temporary scheduling order is transmitted to the Assistant Secretary of HHS. 21 U.S.C. 811(h)(1).
        Inasmuch as section 201(h) of the CSA directs that temporary scheduling actions be issued by order and sets forth the procedures by which such orders are to be issued, the DEA believes that the notice and comment requirements of section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553, do not apply to this notice of intent. In the alternative, even assuming that this notice of intent might be subject to section 553 of the APA, the Deputy Administrator finds that there is good cause to forgo the notice and comment requirements of section 553, as any further delays in the process for issuance of temporary scheduling orders would be impracticable and contrary to the public interest in view of the manifest urgency to avoid an imminent hazard to the public safety.
        Although the DEA believes this notice of intent to issue a temporary scheduling order is not subject to the notice and comment requirements of section 553 of the APA, the DEA notes that in accordance with 21 U.S.C. 811(h)(4), the Deputy Administrator will be taking into consideration any comments submitted by the Assistant Secretary with regard to the proposed temporary scheduling order.
        Further, the DEA believes that this temporary scheduling action is not a “rule” as defined by 5 U.S.C. 601(2), and, accordingly, is not subject to the requirements of the Regulatory Flexibility Act (RFA). The requirements for the preparation of an initial regulatory flexibility analysis in 5 U.S.C. 603(a) are not applicable where, as here, the DEA is not required by section 553 of the APA or any other law to publish a general notice of proposed rulemaking.
        Additionally, this action is not a significant regulatory action as defined by Executive Order 12866 (Regulatory Planning and Review), section 3(f), and, accordingly, this action has not been reviewed by the Office of Management and Budget (OMB).
        This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132 (Federalism) it is determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

          List of Subjects in 21 CFR Part 1308
          Administrative practice and procedure, Drug traffic control, Reporting and recordkeeping requirements.

        Under the authority vested in the Attorney General by section 201(h) of the CSA, 21 U.S.C. 811(h), and delegated to the Deputy Administrator of the DEA by Department of Justice regulations (28 CFR 0.100, Appendix to Subpart R), the Deputy Administrator hereby intends to order that 21 CFR Part 1308 be amended as follows:

          PART 1308—SCHEDULES OF CONTROLLED SUBSTANCES

        1. The authority citation for Part 1308 continues to read as follows:

          Authority:
          21 U.S.C. 811, 812, 871(b), unless otherwise noted.

        2. Section 1308.11 is amended by adding new paragraphs (h)(12), (13), and (14) to read as follows:

          § 1308.11
          Schedule I.

          (h) * * *
          (12) 2-(4-iodo-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine, its optical, positional, and geometric isomers, salts and salts of isomers—7538 (Other names: 25I-NBOMe; 2C-I-NBOMe; 25I; Cimbi-5)
          (13) 2-(4-chloro-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine, its optical, positional, and geometric isomers, salts and salts of isomers—7537 (Other names: 25C-NBOMe; 2C-C-NBOMe; 25C; Cimbi-82)
          (14) 2-(4-bromo-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine, its optical, positional, and geometric isomers, salts and salts of isomers—7536 (Other names: 25B-NBOMe; 2C-B-NBOMe; 25B; Cimbi-36)

          Dated: October 4, 2013.
          Thomas M. Harrigan,
          Deputy Administrator.

      [FR Doc. 2013-24432 Filed 10-9-13; 8:45 am]
      BILLING CODE 4410-09-P


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 15
        [ET Docket No. 18-295, GN Docket No. 17-183; FCC 20-51; FRS 16739]
        Unlicensed Use of the 6 GHz Band

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:
          In this document, the Commission proposes to expand unlicensed use of the 5.925-7.125 GHz band (6 GHz band) while protecting the incumbent licensed services that operate in this spectrum. The proposed rules would allow a new class of unlicensed devices to operate throughout the entire 6 GHz band at power levels that are low enough to prevent the occurrence of harmful interference to licensed services. The Commission seeks comment on permitting unlicensed access points that are restricted to indoor operation in the 6 GHz band to operate at a power spectral density of 8 dBm/MHz with a maximum permissible equivalent isotropically radiated power (EIRP) of 33 dBm, an increase of 3 dB over the current rules. The Commission also seeks comment on permitting access points that operate under the control of an automated frequency coordination (AFC) system in the 5.925-6.425 GHz and 5.512-6.875 GHz sub-bands to be used for mobile applications. In addition, the document seeks comment on allowing access points that operate under AFC control to transmit with more power than the 36 dBm EIRP currently permitted.

          DATES:
          Comments are due June 29, 2020. Reply comments are due July 27, 2020.

          ADDRESSES:

          Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated in the DATES section of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
          • Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.

          • Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing.
          • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
          • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.

          • Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.

          • During the time the Commission's building is closed to the general public and until further notice, if more than one docket or rulemaking number appears in the caption of a proceeding, paper filers need not submit two additional copies for each additional docket or rulemaking number; an original and one copy are sufficient.

          FOR FURTHER INFORMATION CONTACT:

          Nicholas Oros, Office of Engineering and Technology, 202-418-0636, Nicholos.Oros@fcc.gov.

        SUPPLEMENTARY INFORMATION:

        This is a summary of the Commission's Notice of Proposed Rulemaking, ET Docket No. 18-295, GN Docket No. 17-183, FCC 20-51, adopted April 23, 2020, and released April 24, 2020. 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 full text may also be downloaded at: https://www.fcc.gov/edocs/search-results?t=advanced&fccNo=18-147. 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).
        Synopsis
        1. Discussion. The Commission proposes rules to expand unlicensed use of the 5.925-7.125 GHz band (6 GHz band). These proposals build upon the rules the Commission adopted for unlicensed use of the 6 GHz band in a Report and Order adopted on April 23, 2020, FCC 20-51 (85 FR 31390, May 26, 2020). In those rules the Commission permitted standard-power access points to operate under the control of an automated frequency coordination (AFC) system in the 5.925-6.425 GHz and 5.512-6.875 GHz sub-bands. Those rules also permitted low-power access points to operate indoors throughout the entire 6 GHz band. In this further notice of proposed rulemaking (FNPRM), the Commission seeks comment on options for further expanding unlicensed operations in the 6 GHz band. First, the Commission proposes to authorize operations that are not limited to indoor use—and, thus, must be very low power to protect incumbents. Second, the Commission seeks comment on increasing the power spectral density EIRP for low-power indoor operations from 5 dBm/MHz to 8 dBm/MHz. In addition, the Commission seeks comment on permitting mobile AFC controlled standard-power access point operation and on whether to allow higher power levels for AFC controlled standard power access points used in fixed point-to-point applications
        2. Very Low Power Operation. Apple, Broadcom et al. have requested that the Commission permit very low-power unlicensed devices to operate in portions of the 6 GHz band with no requirements that the devices be kept indoors or be under the control of an AFC system. Apple, Broadcom et al. claim that this device class will be critical for supporting indoor and outdoor portable use cases such as wearable peripherals including augmented reality/virtual reality and other personal-area-network applications as well as in-vehicle applications. Apple, Broadcom et al. have requested that these very low-power devices be permitted to transmit with 14 dBm EIRP and −8 dBm/MHz power spectral density EIRP.
        3. The Commission proposes to permit very low power devices to operate across the entirety of the 6 GH band, both indoors and outdoors, without using an AFC. This would make a contiguous 1200-megahertz spectrum block available for new and innovative high-speed, short range devices. The Commission seeks comment on this proposal. What are the benefits that these devices can bring to the American public? What use cases are envisioned for these devices? What form factors will be most useful for performing everyday activities? Will very low power functionality be built into existing devices such as cell phones or will they be standalone devices? What data rates are necessary to enable the enhanced applications envisioned for these devices? Over what distances will transmissions to very low power devices be necessary? Where are these devices most anticipated to be used and for what applications? The answers to these questions will drive additional comment and decisions on these devices as the fundamental decision that must be determined is how much power can these very lower power devices be permitted so that the potential of causing harmful interference to incumbent 6 GHz band users is minimized.
        4. The Commission seeks comment on the appropriate power level for very low power unlicensed devices in the 6 GHz band. In examining what power levels the Commission should authorize, there are many factors that need to be considered, including body loss (as many use cases will be for body worn devices), use of transmit power control, antenna type and radiation pattern, use of a contention-based protocol and projected activity factor. As a threshold matter, similar to the requirements for low power indoor devices, the Commission proposes to require that 6 GHz band very low power unlicensed devices incorporate an integrated antenna. The Commission seeks comment on these proposals. Using an integrated antenna will ensure that users are unable to swap out the antenna for a higher gain antenna that could increase the potential for interference. The Commission assumes that the antennas will be omnidirectional and have minimum gain. Is that a good assumption? Are there other antennas anticipated for these devices?
        5. As the Commission has found for indoor low power devices, should the Commission require a contention-based protocol that requires devices to sense or listen to the spectrum prior to transmitting to ensure all unlicensed devices have an equal opportunity to transmit as well as to protect incumbent users? Commenters should address whether protocols such as Wi-Fi's current carrier sense multiple access with collision avoidance (CSMA/CA) would be used or are there other protocols that may work here too. Apple, Broadcom et al. contend that such a protocol will protect mobile Broadcast Auxiliary Service Incumbents in the U-NII-6 and U-NII-8 bands. The Commission seeks comment on the viability of relying on a contention-based protocol to protect these uses. Can this protocol also be used to protect Fixed Service microwave incumbents? What sensing levels are necessary to reliably detect incumbent services to protect them? Wideband and ultrawideband unlicensed devices operate in the 6 GHz band. Can the contention-based protocol be used to enable co-existence between various unlicensed device types? Commenters should provide detailed technical information on the contention-based protocol and how it can be used to protect existing 6 GHz band users (and whether a requirement to include a contention-based protocol would materially affect the spectrum very low power devices could use as well as the relevant power levels in order to protect incumbent services).
        6. In determining the proper power level for very low power unlicensed devices using 160-megahertz channels, the Commission first notes that it authorized low power indoor devices to operate with 5 dBm/MHz power spectral density (PSD) EIRP and a maximum 27 dBm EIRP. This decision is based on an extensive record replete with multiple studies—both Monte Carlo and static link budgets. A major contributing factor to those analyses was consideration of building entry loss and the effect such propagation loss would have on protecting incumbent licensees from harmful interference. Building attenuation is a function of building construction type (traditional or thermally efficient) and the elevation angle of the signal path at the building façade. Because the major difference between low power indoor unlicensed devices and very low power unlicensed devices is that, for the latter devices, outdoor use would not be subject to building entry loss, how should the Commission evaluate the interference potential of these devices as many may be operating outdoors? Can the analyses performed for indoor low power devices inform how the Commission proceeds here? The Commission notes that for many anticipated use cases, use will occur near the ground and in the presence of buildings and other objects further subjecting potentially interfering emissions to clutter losses. Accounting for clutter losses would infer that more power could be permitted without increasing the potential for harmful interference. How should the Commission account for clutter losses? What types of clutter losses would affect low power device signals? Because clutter losses, like building attenuation, is statistical, the Commission seeks information on clutter loss statistical distributions that would be appropriate to use in any analyses. What information is available? What are the minimum, maximum, and mean values that can be expected for various locations? How have these distributions been validated? Commenters should provide detailed information and reference material to support their claims regarding appropriate clutter losses to consider.
        7. Other factors that must be considered when evaluating very low power unlicensed devices is body loss and transmit power control. The Commission anticipates that most of the devices contemplated for such operation will be body worn and subject to such losses. In their filings with technical analyses, Apple, Broadcom et al. assume that there will be at least 18 dB signal attenuation from body loss and transmit power control. Is this assumption realistic? The Commission seeks comment on the correct value to consider for body loss and transmit power control for these devices. Commenters should provide detailed technical analysis supporting the value(s) they believe the Commission should rely on to determine the maximum power level for very low power devices.

        8. The Commission also asks commenters to address some specific technical solutions and use situations that it believes are likely to arise through typical operation. First, cell phones typically employ proximity or other sensors to determine if they are close to a body to adjust power to meet the Commission's radio frequency (RF) exposure rules. Could such a sensor be used in conjunction with these very low power devices as a way of adjusting their power based on how much body loss might be expected? How would such a system work to both ensure the ability of devices to close their links as well as avoiding causing harmful interference to incumbent licensees? Should such sensors be required on these devices? If so, what parameters are essential and what algorithms would ensure proper power level tuning? How would interference to incumbent operations be protected when a very low power unlicensed device must use higher power when facing maximum body loss in the direction of its intended receiver, but no similar losses in other directions? For example, a cell phone in a backpack may be transmitting to a body worn device where the intended signal encounters a person's full mass in that intended direction, but no losses in other directions. Is this a reasonable scenario? What are the potential consequences of such operation?
        9. Alternatively, in use cases where an unlicensed device may not encounter much body loss, how would transmit power control be implemented to protect incumbent licensees? For example, if a device is mounted on a bicycle handlebar and communicating with a body worn device, there would be no body loss and little clutter. The Commission seeks comment on other use cases and whether proximity sensors could be used and how transmit power control would provide sufficient power for the application and at the same time protect incumbent licensees. How does the expected geometry between these unlicensed devices, which presumably will generally be used close to the ground and fixed service microwave links which are generally high off the ground and employ directional antennas affect the power level the Commission can allow? What about the interaction for Broadcast Auxiliary Services?
        10. The Commission seeks comment on how all these factors should be considered in analyses and the various technical solutions can work together to authorize very low power unlicensed devices across the 6 GHz band. The Commission seeks comment on the appropriate factors that should be incorporated into a link budget. The Commission also seeks comment on the appropriate way to model the potential interactions between unlicensed devices and incumbent operations. Should the Commission rely on Monte Carlo analysis, link budget analysis, link-level simulations that take into account detailed physical layer implementations of unlicensed devices as well as incumbent devices, or a combination of these methods? Regardless of which type of analysis commenters submit, all assumptions should be fully explained and supported and all methodologies explained in detail. The Commission also seeks comment on what technological measures can be incorporated into a very low-power device to support the operations at the requested power limits and mitigate the potential for harmful interference to incumbent services?
        11. In contemplating the various factors discussed, the Commission seeks comment on what power level the Commission should authorize for very low power unlicensed devices across the 6 GHz band. In this regard, the Commission notes that, similar to the rules the Commission adopted for indoor low power devices in a Report and Order adopted on April 23, 2020, FCC 20-51 (85 FR 31390, May 26, 2020), the Commission anticipates requiring devices to meet a power spectral density requirement, which inherently places a maximum on radiated power. Do commenters support this approach? Apple, Broadcom et al. contend that 14 dBm EIRP and −8 dBm/MHZ PSD EIRP is necessary to enable the applications they anticipate for these devices. The Commission seeks comment on the power level and other technical or operational rules the Commission should consider to maximize the utility of the 6 GHz band and protect incumbent licensees. The Commission encourages commenters to also conduct testing and measurements of protype devices to support whatever rules they advocate for. Such testing can be done under an experimental license to the extent needed. What technical measures will be effective in meeting the Commission's goals of balancing new devices against the need to protect incumbent licensees?
        12. Power Spectral Density Increase for Low Power Indoor Operation. The Commission seeks comment in this FNPRM on whether to allow low power indoor devices to operate at a higher power spectral density of 8 dBm/MHz with a maximum permissible EIRP of 33 dBm when a device uses a bandwidth of 320 megahertz in the U-NII-5 through U-NII-8 bands. The Commission adopts 5 dBm/MHz in the Report and Order considering the analyses in the record based on limited measurements, Monte Carlo simulations and static link budgets, none of which fully capture a future deployment scenario involving a very large number of unlicensed devices operating in a complex interference environment. Analyses that can incorporate realistic environments, including accurate link-level and system level simulations or measurements which take into account the physical layer characteristics of both unlicensed and incumbent devices would be more convincing in determining whether a higher PSD such as 8 dBm/MHz should be adopted. For devices operating with bandwidths other than 320 megahertz, the maximum allowable total power would scale accordingly (e.g., 30 dBm with a bandwidth of 160 megahertz, 27 dBm with a bandwidth of 80 megahertz, 24 dBm with a bandwidth of 40 megahertz, and 21 dBm with a bandwidth of 20 megahertz). The Commission believes that these rules would be useful for many indoor devices that require high data rate transmissions such as indoor access points communicating with clients like high-performance video game controllers, and wearable video augmented reality and virtual reality devices.
        13. Would the proposed power levels be useful for low power indoor devices? What are the specific benefits to consumers and users of unlicensed operations of a higher power spectral density limit? Are the proposed power limits appropriate for preventing interference to authorized users in the U-NII-5 through U-NII-8 bands? Do the mobile uses of these bands present challenges to adjusting the power limits? Should the Commission adopt any other requirements in addition to power density and total EIRP limits to protect services in these bands? The Commission seeks specific comment on how a higher power spectral density limit would impact the analysis of Examples 1B, 4, and 5 from the AT&T study submitted to the Commission on November 12, 2019 in ET Docket No. 18-295, as well as how common those scenarios are. Proponents of low-power indoor operations have convincingly shown that even in these examples the likelihood of harmful interference to fixed microwave services will be insignificant with a power spectral density limit of 5 dBm/MHz. Is the risk materially higher at 8 dBm/MHz? Is so, is such risk still low (or even insignificant)? And how common are such scenarios? The Commission seeks specific comment from fixed service incumbents on what fraction of their operations do each of these scenarios represent. And is the Commission correct to surmise that these are worst case scenarios (as would be suggested by the incentives of those introducing these scenarios into the record) or do they actually represent a significant number of operations? Finally, the Commission seeks comment on the benefits and costs of the proposal. How should the Commission quantify the potential economic benefits of authorizing higher power spectral density for low power indoor devices and the potential cost to incumbent operations should interference occur?
        14. Mobile Standard-Power Access Point Operation. The Commission seeks comment on whether to allow standard-power access points, under AFC control, to be used in mobile applications under rules similar to those for personal/portable white space devices. Such usage would expand the area over which unlicensed 6 GHz devices can operate to deliver additional benefits to the American public. Mobile use at higher power levels than what the Commission is proposing, or very low power unlicensed devices could also enable new innovative applications. The Commission seeks comment on what benefits such usage could provide. What new applications are envisioned for higher power mobile operation?

        15. The white space device rules limit personal/portable devices to a lower power level than fixed white space devices. Under the rules a personal/portable white space device must determine its geographic coordinates using an incorporated geo-location capability prior to its initial service transmission, each time the device is activated from a power-off condition, and at least once every 60 seconds while in operation. In addition, it must access a database to obtain a list of available channels for its location and must access the database for an updated channel list if it changes location by more than 100 meters from the location at which it last obtained its channel list. Also, a personal/portable white space device must re-check its location and access the database daily to verify that the operating channel(s) continue to be available. Further, it may load channel availability information for multiple locations, (i.e., in the vicinity of its current location) and use that information to define a geographic area within which it can operate on the same available channels at all locations.
        16. The Commission seeks comment on whether the Commission should allow mobile standard-power access point operation in the 6 GHz band, and if so, what technical requirements should apply? Are the personal/portable white space device rules an appropriate model to follow in developing rules for mobile standard-power access points? Which of those rules could be adopted for 6 GHz standard-power devices? Which of the white space rules would need to be modified for devices operating in the 6 GHz band? What other changes or requirements would be needed? Should the Commission define a separate device category for mobile standard-power devices? If so, how should these differ from fixed standard-power access points? For example, the Commission believes such devices would need an integrated geolocation capability and have an integrated connectorized antenna. The Commission seeks comment on these requirements and any others that need to be placed on these devices.

        17. What power limit would be appropriate for mobile standard-power access points? Could mobile standard-power access points operate at the same power as fixed devices or should they have a lower maximum power? How should the protection distances be calculated for mobile devices? What factors need to be considered to ensure that incumbent operations are protected from harmful interference? How often would mobile devices need to update their position? Should it be the same requirement as for white space devices which require updates every 60 seconds or when the location changes by more than 100 meters? Or, are other requirements more appropriate? Should the Commission allow devices to preload a list of cleared channels over an area (e.g., create a geo-fenced area) and operate without updating location with the AFC system so long as they stay within the cleared area? Should mobile operation be permitted in both the U-NII-5 and U-NII-7 bands?
        18. What effect would permitting mobile standard-power access point operation have on the AFC? Would allowing standard-power access points to operate while in motion make the AFC system overly complicated as it would need to continuously update available frequency lists for such devices? Would mobile applications add substantial congestion to links connecting devices to the AFC system as a moving device may need to be in near constant contact with the database, potentially degrading the quality of service for the expected predominant fixed access point use? Would the added complexity of mobile operation delay the AFC system development and prevent the American public from reaping the benefits of expanded unlicensed use soon? What costs would be involved with adding this capability? And, what additional requirements would be needed for 6 GHz unlicensed devices? Would additional information need to be communicated to the AFC system to identify whether a device is fixed or mobile? Would fixed devices need to be updated to send additional data too? How would this impact development of devices and the timeline for getting them into the marketplace? Are there additional security concerns associated with mobile operation? What are the costs that might be involved with permitting mobile standard-power device operation?
        19. The Commission seeks comment on all technical and operational aspects associated with mobile standard-power device operation. Commenters should provide detailed technical analysis to support comments advocating technical limits and methods of protecting incumbent users from harmful interference. In addition, commenters should provide detailed support for any operational rules they believe could be adopted to expand 6 GHz unlicensed use to mobile standard-power operations while protecting incumbent operations from harmful interference.
        20. Higher Power Limits and Antenna Directivity for Standard-Power Access Points. The Commission also seeks comment on whether to allow standard-power access points used in fixed point-to-point applications to operate at power levels greater than 36 dBm EIRP. In the Report and Order, the Commission limits standard power access points to a maximum 36 dBm EIRP power level to limit the range at which harmful interference could potentially occur. That approach deviates from the U-NII-1 and U-NII-3 band rules which permit higher power point-to-point operations, because of the different incumbent licensee environment in the 6 GHz band as compared to 5 GHz. To explore whether similar flexibility can be permitted in the 6 GHz band, the Commission seeks comment on whether to allow power levels greater than 36 dBm EIRP for standard-power access points operating in the U-NII-5 and U-NII-7 bands when configured as point-to-point links. As a threshold matter, the Commission believes that any flexibility provided for higher power should be used for targeted applications that would benefit from point-to-point operations, such as backhaul and not for point-to-multipoint use or as a scheme for providing more wide area service through multiple antennas aimed to cover larger areas. Thus, if the Commission allows higher power for point-to-point links, the Commission seeks comment on replicating the U-NII-1 and U-NII-3 band requirement on such links that would exclude the use of point-to-multipoint systems, omnidirectional applications, and multiple collocated transmitters transmitting the same information.

        21. The Commission seeks comment on the appropriate technical parameters and limits that would be associated with 6 GHz point-to-point operation. How would the Commission ensure that incumbent operations will be protected from unlicensed devices operating at higher power levels? For example, should there be a limit on the maximum conducted transmitter power as is done in other U-NII bands to encourage parties to use higher gain, highly directional antennas? If so, what is the appropriate power limit? Should there be specific antenna requirements for standard-power access points operating at power levels above 36 dBm EIRP, such as a minimum gain or maximum beamwidth requirement? To limit the maximum EIRP and thus the distance over which stations could be potentially affected, the U-NII-1 band requires a 1 dB reduction in maximum conducted output power and maximum power spectral density for each 1 dB of antenna gain in excess of 23 dBi. Would a similar requirement be needed for the 6 GHz band? If so, what should be the antenna gain threshold for triggering the power reduction? Are any other requirements necessary to protect incumbent services? What modifications to the AFC system would be required to accommodate higher power point-to-point operations? Would any corresponding changes be needed for standard-power access points related to the information they exchange with the AFC? If so, how quickly could changes be made to the AFC and equipment? What costs are involved?
        22. Regarding unlicensed point-to-point applications in the 6 GHz band, the Commission also seeks comment on whether the AFC system should be permitted to take the directivity of a standard-power access point's antenna into account when determining the available frequencies and power levels at a location, rather than assuming an omnidirectional antenna. The directional pattern of an access point's antenna could affect the identification of available frequencies at a location, because when the transmit antenna points away from a microwave receiver, the effect would be that the access point has a lower EIRP in the direction of the receiver. Under such situations, the required separation distance between the access point and microwave receiver would be shorter, which could increase the number of locations where a device could operate. Would taking access point transmit antenna directivity into account result in any significant increase in the amount of spectrum available to unlicensed devices?
        23. If the AFC system considers access point transmit antenna directivity, how would the Commission assure the accuracy of antenna pattern and orientation information? Would the Commission need to rely on a professional installer requirement as the Commission does for certain stations in the Citizens Broadband Radio Service? If so, how would such a requirement be implemented? Are there other ways to ensure reporting accuracy of this information? How could this information be supplied to the AFC system? Should there be an automated system, or could the Commission allow for a manual system or both? Should the Commission require the AFC system to store detailed information, such as the antenna gain at one-degree intervals, or could the Commission define several simpler generic antenna patterns that approximate commonly used antennas? What other criteria would the Commission need to specify to ensure that incumbent services are protected? Would the benefits of such an approach outweigh the increased costs and complexity of the AFC system and the risk that inaccurate antenna pattern information might result in harmful interference to incumbent services? If the Commission were to permit a change, what specific changes are needed to the AFC system? Are corresponding changes needed to the standard-power access points' software or hardware? How long would it take to make such changes? What costs would be associated with such changes?
        24. Procedural Matters. Paperwork Reduction Act Analysis. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified 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).
        25. Initial Regulatory Flexibility Analysis. As required by the RFA, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities of the proposals addressed in this FNPRM. The Full IRFA is found in Appendix C at https://www.fcc.gov/edocs/search-results?t=advanced&fccNo=18-147. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines for comments on the FNPRM, and they should have a separate and distinct heading designating them as responses to the IRFA. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of this FNPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with the RFA.
        26. 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).
        27. Availability of Documents. Comments, reply comments, and ex parte submissions will be publicly available online via ECFS. These documents will also be available for public inspection during regular business hours in the FCC Reference Information Center, which is located in Room CY-A257 at FCC Headquarters, 445 12th Street SW, Washington, DC 20554. The Reference Information Center is open to the public Monday through Thursday from 8:00 a.m. to 4:30 p.m. and Friday from 8:00 a.m. to 11:30 a.m.
        28. Ex Parte Presentations. The proceedings shall be treated as “permit-but-disclose” proceedings in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule § 1.1206(b). In proceedings governed by rule § 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in these proceeding should familiarize themselves with the Commission's ex parte rules.
        Ordering Clauses
        29. It is ordered, pursuant to the authority found in Sections 4(i), 201, 302, and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 201, 302a, 303, and § 1.411 of the Commission's Rules, 47 CFR 1.411, that this FNPRM is hereby adopted.

        30. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this FNPRM, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.
        31. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this FNPRM, including the Initial Regulatory Flexibility Analysis, to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

          Federal Communications Commission.
          Cecilia Sigmund,
          Federal Register Liaison Officer.

      [FR Doc. 2020-11320 Filed 5-27-20; 8:45 am]
      BILLING CODE 6712-01-P