Discussion

The FAA received reports that cracks were found in the rotating air HPT front seal on CFM56-5B model turbofan engines during a scheduled shop visit. After further analysis, CFM determined that when a single rotating air HPT front seal is mated to more than one HPT disk some seals develop microcracks. These cracks resulted from variations in the geometry of the parts being mated.

This AD pertains to the highest risk engines and therefore addresses certain CFM CFM56-5B, CFM56-5C, and CFM56-7B model turbofan engines with an affected rotating air HPT front seal that has a specified number of cycles since being reconfigured. The FAA expects to propose future rulemaking for additional CFM CFM56-5B, CFM56-5C, and CFM56-7B model turbofan engines with this same rotating air HPT front seal that have fewer cycles since being reconfigured. These engines have the same unsafe condition as the engines affected by this AD but represent a lower safety risk due to the lower number of cycles since being reconfigured on the affected rotating air HPT front seal.

This condition, if not addressed, could result in the uncontained release of the rotating air HPT front seal, damage to the engine, and damage to the airplane. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA reviewed CFM Service Bulletin (SB) CFM56-5B S/B 72-1074, Revision 01, dated December 5, 2018; CFM SB CFM56-5C S/B 72-0794, Revision 01, dated January 2, 2019; and CFM SB CFM56-7B S/B 72-1042, Revision 01, dated January 2, 2019. CFM SB CFM56-5B S/B 72-1074, Revision 01, describes procedures for replacement of the affected rotating air HPT front seal on CFM CFM56-5B turbofan engines. CFM SB CFM56-5C S/B 72-0794, Revision 01, describes procedures for replacement of the affected rotating air HPT front seal on CFM CFM56-5C turbofan engines. CFM SB CFM56-7B S/B 72-1042, Revision 01, describes procedures for replacement of the affected rotating air HPT front seal on CFM CFM56-7B turbofan engines.

The FAA is issuing this AD because it evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This AD requires replacement of the affected rotating air HPT front seal with a part eligible for installation.

No domestic operators use the affected higher risk CFM CFM56-5B, CFM56-5C, and CFM56-7B model turbofan engines. Therefore, the FAA finds good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reason stated above, the FAA finds that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, the FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2019-0212 and Product Identifier 2019-NE-05-AD at the beginning of your comments. The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this final rule. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

The FAA will post all comments received, without change, to http://www.regulations.gov, including any personal information you provide. The FAA will also post a report summarizing each substantive verbal contact received about this final rule.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects no engines installed on airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority.

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

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.

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

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866, and

(2) Will not affect intrastate aviation in Alaska.

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A319-113 and -114 airplanes, and Model A320-211 and -212 airplanes. The NPRM published in the Federal Register on February 7, 2019 (84 FR 2465). The NPRM was prompted by a report that a life-limit of 64,000 flight cycles has been established for certain titanium crossbeams of the forward engine mount. The NPRM proposed to require repetitive replacements of all affected crossbeams of the forward engine mount.

The FAA is issuing this AD to address failure of a crossbeam of the forward engine mount, which could result in detachment of the engine and consequent reduced controllability of the airplane.

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0212R1, dated March 28, 2019 (“EASA AD 2018-0212R1”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A319-113 and -114 airplanes, and Model A320-211 and -212 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-1068.

The FAA gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment.

Donovan Twiddle, Jr., agreed that the proposed AD should be implemented.

Delta Air Lines (DAL) asked that the proposed AD include an exception to the language in paragraph (2) of EASA AD 2018-2012, which specifies “Replacing on an aeroplane any affected crossbeam with crossbeam having P/N 642-2002-503 in accordance with instructions provided by Airbus is an acceptable alternative method to comply with the requirements of paragraph (1) of this [EASA] AD, provided that, following modification, no affected crossbeam is installed on that aeroplane.” DAL stated that omitting the language “provided that, following modification, no affected crossbeam is installed on that aeroplane” would allow for the crossbeam having P/N 642-2002-503 to be managed like any other CFM56 life-limited engine component, while continuing to prohibit installing a crossbeam that has been modified to have P/N 642-2002-503.

DAL pointed out that, since the NPRM was published, the EASA has issued EASA AD 2018-0212R1, which addresses its original request (described previously) and, therefore, requested that the NPRM be revised to refer to EASA AD 2018-0212R1 as the appropriate source of information for complying with the proposed AD.

The FAA agrees that this final rule should refer to EASA AD 2018-0212R1 for accomplishing the required actions. As noted by the commenter, paragraph (2) of EASA AD 2018-0212R1 does not contain the language “provided that, following modification, no affected crossbeam is installed on that aeroplane.” The agency determined that no additional work is required for airplanes that have accomplished the actions as required by EASA AD 2018-0212, dated September 28, 2018 (“EASA AD 2018-0212”). Therefore, the agency has revised all applicable sections in this final rule to also specify EASA AD 2018-0212R1.

DAL asked that the FAA revise the proposed AD to include a revised definition of crossbeam accumulated life. DAL stated that it received information from Airbus indicating that the data contained in the life estimation tables of EASA AD 2018-0212 and EASA AD 2018-0212R1, and in Airbus Service Bulletin A320-71-1073, dated June 8, 2018, and Revision 01, dated January 3, 2019, was generated using 2015 fleet utilization data. DAL noted that Airbus has received updated fleet utilization data from 2017 that better estimates the flight cycle count for operators, and substantiates a compliance window later than the January 31, 2019 date required by EASA AD 2018-0212 and EASA AD 2018-0212R1, and the referenced service information. DAL added that there are operators that have the ability to trace the actual accumulated mount assembly and crossbeam flight cycles from dates earlier than “Life estimation done on” date of the life estimation tables included in Appendix 01 of EASA AD 2018-0212 and EASA AD 2018-0212R1. DAL explained that Airbus has been able to provide operators with an accumulated life estimation that takes Airbus's updated fleet utilization Monte Carlo counting method and the operator's actual flight cycle data into account. DAL went on to explain that the updated Monte Carlo counting method also includes crossbeams where the date of manufacture was not explicitly known and was assumed to be before January 1, 1988. For crossbeams where the date of manufacture was not identified, DAL stated that it believes the use of Airbus data and maintenance records, while still assuming a date of manufacture before January 1, 1988, would not adversely affect the level of safety of the airplane. By still assuming the worst case scenario for the date of manufacture, DAL asserted that the most conservative estimate for crossbeam accumulated life is still being used. DAL provided a revised definition of crossbeam accumulated life, and stated that the proposed definition would allow operators to use the updated Monte Carlo counting method from Airbus and maintenance records for all crossbeams, as well as also taking into account the fact that the final rule should require the use of “total flight cycles.”

The FAA does not agree with the commenter's request. The agency has not received any new life estimation data either from EASA or Airbus, other than that referenced in EASA AD 2018-0212R1. After the NPRM comment period closed, the FAA contacted EASA; EASA confirmed that the life estimation table in Appendix 1 of EASA AD 2018-0212R1 is based on the latest data received from Airbus. In addition, the agency does not have access to the latest data referenced by DAL. In order to calculate flight cycles based on new fleet utilization information received from Airbus, which would allow DAL to continue operation with the affected part later than EASA's estimation, DAL may request approval of an alternative method of compliance (AMOC) under the provisions of paragraph (i)(1) of this AD. The FAA has not changed this AD regarding this issue.

The FAA reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the changes described previously and minor editorial changes. The FAA has determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

The FAA has also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.

EASA ADs 2018-0212 and 2018-0212R1 describe procedures for repetitive replacements of all affected crossbeams of the forward engine mount and an optional replacement as an acceptable method of compliance for the required replacement. These documents are distinct since AD 2018-0212R1 includes updated requirements and definitions, and references updated service information. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 59 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

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

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.

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

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

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

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

Discussion

The FAA issued AD 2017-16-10, Amendment 39-18987 (82 FR 39513, August 21, 2017) (“AD 2017-16-10”), for all The Boeing Company Model 777 airplanes. AD 2017-16-10 required repetitive inspections of the left and right side underwing longerons for any crack, and related investigative and corrective actions if necessary. AD 2017-16-10 resulted from reports of cracks on the underwing longerons. The FAA issued AD 2017-16-10 to address cracks in the underwing longerons, which could result in fuel leakage into the forward cargo area and consequent increased risk of a fire or, in a more severe case, could adversely affect the structural integrity of the airplane.

Since we issued AD 2017-16-10, the FAA has determined that it is necessary to reduce certain compliance times for certain airplanes to address the unsafe condition. The FAA has also determined that it is necessary to remove certain airplanes from the applicability because the unsafe condition has been addressed in production on line numbers 1523, and 1525 and subsequent. The FAA is issuing this AD to address cracks in the underwing longerons, which could result in fuel leakage into the forward cargo area and consequent increased risk of a fire or, in a more severe case, could adversely affect the structural integrity of the airplane.

The FAA reviewed Boeing Alert Service Bulletin 777-53A0081, Revision 2, dated March 29, 2019. This service information describes procedures for repetitive detailed inspections, ultrasonic inspections, high frequency eddy current (HFEC) inspections of the left and right side underwing longerons, a surface HFEC inspection of the external surface of the fuselage skin, and applicable on-condition actions. On condition actions include replacement of the left or right underwing longeron, as applicable. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA is issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

Although this AD does not explicitly restate the requirements of AD 2017-16-10, this AD retains all of the requirements of AD 2017-16-10. Those requirements are referenced in the service information identified previously, which, in turn, is referenced in paragraph (g) of this AD. This AD reduces certain compliance times for certain airplanes and removes airplanes from the applicability. This AD also requires accomplishment of the actions identified as “RC” (required for compliance) in the Accomplishment Instructions of Boeing Alert Service Bulletin 777-53A0081, Revision 2, dated March 29, 2019, described previously.

For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2019-0407.

There are currently no U.S. operators affected by the new reduced compliance times required by this AD. Therefore, we find good cause that notice and opportunity for prior public comment are unnecessary. In addition, for the reason(s) stated above, the FAA finds that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, the FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2019-0407 and Product Identifier 2019-NM-075-AD at the beginning of your comments. The agency specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this final rule. The agency will consider all comments received by the closing date and may amend this final rule because of those comments.

The FAA will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact the agency receives about this final rule.

The FAA estimate that this AD affects 214 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

The new requirements of this AD (reduced compliance times) do not currently affect U.S. operators and, therefore, add no additional economic burden.

The FAA estimates the following costs to do any necessary replacements that would be required based on the results of the inspections. The agency has no way of determining the number of aircraft that might need these replacements:

The FAA has received no definitive data that would enable us to provide cost estimates for the on-condition actions, other than the replacement, specified in this AD.

According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage for affected individuals. As a result, the FAA has included all known costs in our cost estimate.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

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

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.

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

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

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

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

The Railroad Retirement Board (Board) amends its regulations in regard to the Board's policy on internal organization. The regulations amended are all contained in § 200.1(b). In § 200.1(b)(1) of the Board's regulations, the Board removes the language that states “the General Counsel also serves as the Senior Executive Officer,” and increases the number of members of the Executive Committee from six to seven members by adding as a member the Director of Field Service. A description of the Director of Field Service's responsibilities is added to § 200.1(b)(2). Finally, under § 200.1(b)(3), the office name of the Washington/Legislative Office is changed to the Office of Legislative Affairs. Section 200.1(b)(3) of the regulation also removes the Office of Planning, and renames the Bureau of Quality Assurance to the Program Evaluation and Management Services (PEMS).

This change was published as a proposed rule on April 27, 2017, and comments were invited to be submitted by June 26, 2017. See 82 FR 19330 (April 27, 2017). No comments were submitted, and the final rule is essentially the same as the proposed rule.

The Board, with the concurrence of the Office of Management and Budget, has determined that this is not a significant regulatory action under Executive Order 12866, as amended. Therefore, no regulatory impact analysis is required. There are no changes to the information collections associated with § 200.1(b).

For the reasons set out in the preamble, the Railroad Retirement Board amends title 20, chapter II, subchapter A, part 200 of the Code of Federal Regulations as follows:

We are announcing the availability of a guidance for industry entitled “The Declaration of Added Sugars on Honey, Maple Syrup, Other Single-Ingredient Sugars and Syrups, and Certain Cranberry Products.” We are issuing this guidance consistent with our good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.

This guidance provides clarification on the labeling requirements for single-ingredient packages and/or containers of pure honey, pure maple syrup, and other pure sugars and syrups, which are not required to bear the words “Includes Xg Added Sugars” but must still include the percent Daily Value for added sugars on their labels. This guidance is also intended to advise food manufacturers of our intent to exercise enforcement discretion related to use of a “†” symbol on single-ingredient packages and/or containers of pure honey, pure maple syrup, and other pure sugars and syrups immediately following the percent Daily Value for the contribution of added sugars to the diet obtained from these products. This would lead the consumer to a statement that is truthful and not misleading in a footnote at the bottom of the Nutrition Facts label. We also intend to exercise our enforcement discretion with respect to the use of a “†” symbol immediately after the added sugars percent Daily Value information that would lead the consumer to a statement outside of the Nutrition Facts label on certain dried cranberry and cranberry beverage products that are made up of cranberry juice sweetened with added sugars and that contain total sugars at levels no greater than comparable products with endogenous (inherent) sugars, but no added sugars.

In the Federal Register of May 27, 2016, FDA issued a final rule entitled “Food Labeling: Revision of the Nutrition and Supplement Facts Labels” (81 FR 33742; the “Nutrition Facts label final rule”). The Nutrition Facts label final rule amended the regulations for the nutrition labeling of conventional foods and dietary supplements to provide updated nutrition information and to improve how the nutrition information is presented to consumers. The Nutrition Facts label final rule also revised the Nutrition Facts label to replace “sugars” with “total sugars” and to include the declaration of added sugars. The Nutrition Facts label final rule defines “added sugars,” in part, to include sugars that are either added during the processing of foods or are packaged as such. The definition includes free sugars (free mono- and disaccharides), sugars from syrups and honey, and sugars from concentrated fruit or vegetable juices that are in excess of what would be expected from the same volume of 100 percent fruit or vegetable juice of the same type. The Nutrition Facts label final rule requires added sugars to be declared on the food label by stating “Includes Xg Added Sugars” indented directly below “Total Sugars,” where X represents the amount, in grams, of added sugars (see 21 CFR 101.9(c)(6)(ii)).

On December 20, 2018, the President signed into law the Agriculture Improvement Act of 2018 (Pub. L. 115-334) (“the Farm Bill”). Section 12516 of the Farm Bill states that the food labeling requirements under section 403(q) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 343(q)) shall not require that the Nutrition Facts label of any single-ingredient sugar, honey, agave, or syrup, including maple syrup, that is packaged and offered for sale as a single-ingredient food bear the declaration “Includes Xg Added Sugars.” Therefore, single-ingredient sugars, honey, agave, and syrups, including maple syrup, do not need to have the statement “Includes Xg Added Sugars” on their label. At the same time, the Farm Bill did not change the requirement under the final rule to include the percent Daily Value for the contribution of added sugars to the diet obtained from these products.

In the Federal Register of March 2, 2018 (83 FR 8953), we made available a draft guidance for industry entitled “The Declaration of Added Sugars on Honey, Maple Syrup, and Certain Cranberry Products” (hereafter referred to as “the draft guidance”) and gave interested parties an opportunity to submit comments by May 1, 2018. In response to requests for more time to comment on the draft guidance, we issued a notice in the Federal Register of April 25, 2018 (83 FR 17961) extending the comment period to June 15, 2018. We received over 3,600 comments to the draft guidance from industry, consumer advocacy groups, trade associations, members of Congress, State governments, and private citizens.

After consideration of the comments to the draft guidance, as well as Public Law 115-334, we have made changes in the final guidance to clarify the requirements for the labeling of added sugars on packages and/or containers of single ingredient honey, maple syrup, and other single ingredient sugars and syrups. The final guidance clarifies that the line representing added sugars on the Nutrition Facts label, as well as the percent Daily Value on that line, are retained for single-ingredient sugars and syrup, however these products do not need to have the statement “Includes Xg Added sugars” on that line. The final guidance also explains our intent to exercise enforcement discretion for all single ingredient sugars and syrups with respect to the inclusion of a “†” symbol after the percent Daily Value, which leads the reader to a truthful and not misleading statement within a footnote at the bottom of the Nutrition Facts label that includes a description of the gram amount of sugar added to the diet by one serving of the product and its contribution to the percent Daily Value for added sugars in the diet.

We are finalizing the guidance without any changes with respect to our intent to exercise enforcement discretion for the use of a “†” symbol that would direct consumers to truthful and not misleading statements on the package outside the Nutrition Facts label on certain cranberry products sweetened with added sugars that provide an amount of total sugars in a serving that does not exceed the level of total sugars in a serving of a comparable product with no added sugars.

At this time, we are not aware of products, other than the cranberry products discussed in the guidance document, for which the addition of sugars is intended to increase palatability, and for which the amount of total sugars per serving is at a level that does not exceed the amount of total sugars in a comparable product with no added sugars. Therefore, at this time we do not intend to exercise enforcement discretion with respect to the use of the “†” that would direct consumers to truthful and not misleading statements on the package outside the Nutrition Facts label on products, including dairy products and whole grain products, other than the cranberry products discussed in the guidance document. We specifically note that we do not intend to exercise enforcement discretion with respect to beverages made from açaí berries because it appears that açaí berry beverages are made, at least in part, from açaí berries combined with water. Therefore, we do not consider açaí berry beverages to be a comparable product to other naturally sweet juices. Furthermore, we do not have sufficient evidence to show that sugars are added to açaí berries to increase palatability like the naturally tart fruit described in the 2015-2020 Dietary Guidelines for Americans (available at https://www.dietaryguidelines.gov/current-dietary-guidelines ). We note that we would consider whether the same type of enforcement discretion discussed with respect to certain cranberry products might be warranted for other products for which the addition of sugars is intended to increase palatability, such as naturally tart fruits, and for which the amount of total sugars per serving is at a level that does not exceed the amount of total sugars in a comparable product with no added sugars.

Further, the final guidance announces our intent to exercise enforcement discretion, until July 1, 2021, regarding the compliance with the Nutritional Facts Label final rule and Serving Size final rule (81 FR 33742 and 81 FR 34000 (May 27, 2016)) requirements for single-ingredient packages and/or containers of pure honey, pure maple syrup, and other pure sugars and syrups, as well as certain dried cranberry and cranberry beverage products. We recognize the importance of giving manufacturers of such products additional time to make appropriate label changes consistent with the Farm Bill and this final guidance. With respect to our enforcement discretion policy pertaining to compliance with updated Nutrition Facts label and serving size requirements, this part of the guidance is being implemented without prior public comment because we have determined that prior public participation is not feasible or appropriate (21 CFR 10.115(g)(2)).

This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in 21 CFR part 101 have been approved under OMB control number 0910-0813.

Persons with access to the internet may obtain the guidance at either https://www.fda.gov/FoodGuidances or https://www.regulations.gov. Use the FDA website listed in the previous sentence to find the most current version of the guidance.

The Coast Guard will enforce the special local regulations listed in 33 CFR 100.100 Table 1 on the specified dates and times:

Under the provisions of 33 CFR 100.100, the events listed above are established as special local regulations. During the enforcement period, persons and vessels are prohibited from entering into, transiting through, mooring, or anchoring within these regulated areas unless they receive permission from the COTP or designated representative.

This notice of enforcement is issued under authority of 33 CFR 100 and 5 U.S.C. 552 (a). In addition to this notice of enforcement in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners or marine information broadcasts. If the COTP determines that these special local regulations need not be enforced for the full duration stated in this notice of enforcement, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

On March 29, 2019 we published a notice of proposed rulemaking entitled “Drawbridge Operation Regulation; Duwamish Waterway, Seattle, WA” in the Federal Register (84 FR 11912). This notice of proposed rulemaking was preceded by a six month test deviation published in the Federal Register (83 FR 10785) on March 13, 2018. The test deviation ran from March 22, 2018 to September 17, 2018. We received three comments on this rule during the deviation. Those comments and the response to the comments can be found in the NPRM, “Drawbridge Operation Regulation; Duwamish Waterway, Seattle, WA” in the Federal Register (84 FR 11912). We received no comments on the NPRM.

The Coast Guard is issuing this rule under authority 33 U.S.C. 499. The Duwamish Waterway provides no alternate route to pass around the South Park Bridge. The subject bridge provides 34 feet in the center of the span and 27 feet at the sides of the span above mean high water. King County, WA, owns the South Park Bridge, but the Seattle Department of Transportation (SDOT) operates the bridge per 33 CFR 117.1041(a)(2).

On behalf of SDOT, King County requested a permanent change to the existing operating regulation of the South Park Bridge. Due to infrequent bridge opening requests from 11 p.m. to 7 a.m., King County proposed to eliminate the nighttime bridge operator. This rule will remove SDOT's bridge operator from 11 p.m. to 7 a.m. unless a 12 hours' notice has been received prior to an opening request. If emergency responders require a bridge opening between 11 p.m. and 7 a.m., the South Park Bridge will open within 45 minutes from initial notification to the Fremont Bridge operator. Vessels engaged in sea-trials or dredging activities may request a standby drawtender to open the bridge, on demand, during sea-trials and/or dredging operations, if at least a 24 hour notice is given to the South Park Bridge drawtender. This rule reasonably accommodates waterway users while reducing SDOT's burden in operating the subject bridge. Vessels operating on the Duwamish Waterway range from small pleasure craft, small tribal fishing boats, large size pleasure motor vessels and large commercial vessels and barges.

During the 30 day comment period ending April 30, 2019 no comments were received. The South Park Bridge will require a 12 hour notice given by telephone to the bridge operator (SDOT) between 7 a.m. and 11 p.m., and for emergencies between 11 p.m. to 7 a.m. call the Fremont Bridge operator. The phone numbers to use for a bridge opening is posted at the subject bridge, and the Coast Guard will publish the phone numbers and this rule in the Local Notice to Mariners (LNM) for six months after the approval date. In addition to the LNM, phone numbers for the two bridge operators will be added to the Coast Pilot. This rule adds 33 CFR 117.1041(a)(3) to provide specific requirements for the operation of the South Park Bridge.

We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analysis based on these statutes and Executive Orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance, it is exempt from the requirements of Executive Order 13771. This regulatory action determination is based on the ability that vessels can still transit the bridge given advanced notice. This rule also applies to emergency openings.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit under the bridge may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owners or operators.

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

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

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. We have not received any comments for this rule change.

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule simply promulgates the operating regulations or procedures for drawbridges. This action is categorically excluded from further review, under figure 2-1, paragraph (32) (e), of the Instruction. A Record of Environmental Consideration and a Memorandum for the Record are not required for this rule.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. This safety zone must be established by June 22, 2019 and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the safety zone until after the date of the building demolition and compromise public safety.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying this rule would be contrary to the public interest because immediate action is necessary to respond to the potential safety hazards associated with the shoreside building demolition.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Marine Safety Unit Pittsburgh (COTP) has determined that potential hazards associated with shoreside demolition activities will be a safety hazard for anyone within a one-mile stretch of the Ohio River. The rule is needed to protect persons, vessels, and the marine environment on the navigable waters within the safety zone before, during, and after the building demolition.

This rule establishes a temporary safety zone from 6 a.m. through noon on one day between June 22, 2019 and June 30, 2019. The rule will be enforced from 6 a.m. through noon on one day between June 22, 2019 and June 30, 2019. The safety zone will cover all navigable waters of the Ohio River, from mile 110.5 to mile 111.5. The duration of the zone is intended to protect persons, vessels, and the marine environment on these navigable waters before, during, and after the building demolition. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Marine Safety Unit Pittsburgh. Persons and vessels seeking entry into this safety zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM Channel 16 or by telephone at (412) 221-0807. Persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful instructions of the COTP or a designated representative. The COTP or a designated representative will inform the public of the enforcement period for the safety zone as well as any changes in the schedule through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, duration, and location of the safety zone. This rule will impact a one-mile stretch of the Ohio River for 6 hours. Moreover, the Coast Guard will issue Local Notices to Mariners (LNMs), Marine Safety Information Bulletins (MSIBs), and BNMs via VHF-FM marine channel 16 about the zones and the rule allows vessels to seek permission to enter the zones.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the temporary safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a temporary safety zone lasting one hour and prohibiting entry on a one-mile stretch of the Ohio River. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish these security zones by June 15, 2019 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest because immediate action is needed to provide for the security of the vessel.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Corpus Christi (COTP) has determined that potential hazards associated with Liquefied Natural Gas Carrier (LNGC) CORCOVADO between June 15, 2019 and June 19, 2019 will be a security concern while the vessel is moored at the receiving facility and within a 500-yard radius of the vessel while the vessel is loaded with cargo.

This rule establishes two security zones around LNGC CORCOVADO from June 15, 2019 through June 19, 2019. A fixed security zone will be in effect in the mooring basin bound by 27°52′53.38″ N, 097°16′20.66″ W on the northern shoreline; thence to 27°52′45.58″ N, 097°16′19.60″ W; thence to 27°52′38.55″ N, 097°15′45.56″ W; thence to 27°52′49.30″ N, 097°15′45.44″ W; thence west along the shoreline to 27°52′53.38″ N, 097°16′20.66″ W, while LNGC CORCOVADO is moored. A moving security zone will cover all navigable waters within a 500-yard radius of the LNGC CORCOVADO while the vessel transits outbound with cargo through the La Quinta Channel and Corpus Christi Ship Channel. No vessel or person will be permitted to enter the security zones without obtaining permission from the COTP or a designated representative.

Entry into these security zones is prohibited unless authorized by the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Corpus Christi. Persons or vessels desiring to enter or pass through the zones must request permission from the COTP or a designated representative on VHF-FM channel 16 or by telephone at 361-939-0450. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative. The COTP or a designated representative will inform the public through Broadcast Notices to Mariners (BNMs) of the enforcement times and dates for these security zones.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, duration, and location of the security zone. This rule will impact a small designated area of the Corpus Christi Ship Channel and La Quinta Channel while the vessel is moored at the receiving facility and during the vessel's transit while loaded with cargo. Moreover, the Coast Guard will issue BNMs via VHF-FM marine channel 16 about the zones and the rule allows vessels to seek permission to enter the zones.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the temporary moving security zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a temporary fixed security zone while LNGC CORCOVADO is moored at the receiving facility mooring basin bound by 27°52′53.38″ N, 097°16′20.66″ W on the northern shoreline; thence to 27°52′45.58″ N, 097°16′19.60″ W; thence to 27°52′38.55″ N, 097°15′45.56″ W; thence to 27°52′49.30″ N, 097°15′45.44″ W; thence west along the shoreline to 27°52′53.38″ N, 097°16′20.66″ W, and a temporary moving security zone while the vessel transits with cargo within the La Quinta Channel and Corpus Christi Ship Channel, that will prohibit entry within 500-yard radius of LNGC CORCOVADO. It is categorically excluded from further review under paragraph L[xxx] in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Sector Lower Mississippi River DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking §  Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. Increasing high water in this area requires immediate action to protect persons, property and power plant infrastructure from the potential safety hazards associated with vessels transiting this area during high water. This safety zone must be established immediately to protect people and vessels associated with and resulting from the high water and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be contrary to public interest because immediate action is needed to protect personnel, vessels, and the marine environment from potential hazards created by the increasing high water.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Lower Mississippi River (COTP) has determined that there are potential hazards associated with increasing high water, including possible emergency operations to repair damage to power distribution infrastructure taking place on the left descending bank of the Lower Mississippi River between Mile Marker (MM) 405 and 408 in the vicinity of the Entergy Grand Gulf Nuclear Power Facility, in Port Gibson, MS. Loss of the power distribution lines system would be catastrophic to large areas of Louisiana and Mississippi. This rule is needed to protect persons, property, and infrastructure from potential damage and safety hazards associated with vessels transiting this safety zone during high water.

The Coast Guard is establishing a temporary safety zone for all navigable waters of the Lower Mississippi River, extending the entire width of the river, from MM 405 to MM 408. Transit into and through this area is prohibited for all traffic beginning on June 7, 2019 to continue through June 30, 2019. The COTP will terminate the enforcement of this safety zone before June 30, 2019, if the high water event ceases. Entry into this safety zone is prohibited unless specifically authorized by the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Lower Mississippi River.

Requests for entry will be considered and reviewed on a case-by-case basis. The COTP may be contacted by telephone at 1-866-777-2784 or can be reached by VHF-FM channel 16. Persons and vessels permitted to transit this safety zone shall not meet, pass, or overtake any vessel currently transiting, shall maintain slowest speed for safe navigation, and shall comply with all lawful directions issued by the COTP or the designated representative.

This safety zone may include closures and/or navigation restrictions and requirements that are vital to maintaining safe navigation on the Lower Mississippi River during the high water. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, and duration of the safety zone. This emergency safety zone will restrict vessel traffic from entering or transiting through a three-mile section of the navigable waterways of the Lower Mississippi River from MM 405 to MM 408, in the vicinity of Port Gibson, MS, from May 31, 2019 through June 30, 2019.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the temporary safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves an emergency safety zone lasting approximately one month that will prohibit entry into a three-mile stretch of the Lower Mississippi River during a hazardous high-water event. It is categorically excluded from further review under paragraph L60(d) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration (REC) supporting this determination will be made available in the docket where indicated under ADDRESSES .

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

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

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Sector Upper Mississippi River DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking §  Section USACE United States Army Corps of Engineers U.S.C. United States Code UMR Upper Mississippi River WAP Waterways Action Plan II. Background Information and Regulatory History

The Coast Guard is extending this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. It is impracticable because we must establish this safety zone immediately and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the safety zone and compromise public safety.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying this rule would be contrary to public interest because immediate action is necessary to respond to the potential safety hazards associated with floodwaters and high flow of the river.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The COTP has determined that potential hazards associated with flood waters threaten to overtop levees along the river due to reports that vessel traffic in the affected area is causing water to overtop levees resulting in increased damage to the levees and flooding impacts to local communities and residential areas. This rule is necessary to ensure the safety of persons, vessels, and the marine environment on these navigable waters due to the flood impacts to USACE levees.

This rule extends a current temporary safety zone due to unanticipated longevity and geographic scope of flooding conditions and establishes a temporary safety zone from June 1, 2019 through July 1, 2019, or until cancelled by the COTP, whichever occurs first. The safety zone will cover all navigable waters of the Upper Mississippi River from MM 109.9 to MM 647.8 unless reduced in scope by the COTP as flood conditions warrant to prevent damage to residential areas and the overtopping of levees.

No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard (USCG) assigned to units under the operational control of USCG Sector Upper Mississippi River. To seek permission to enter, contact the COTP or a designated representative via VHF-FM channel 16, or through USCG Sector Upper Mississippi River at 314-269-2332. Persons and vessels permitted to enter the safety zone must comply with all lawful orders or directions issued by the COTP or designated representative. The COTP or a designated representative will inform the public of the effective period for the safety zone as well as any changes in the dates and times of enforcement, as well as reductions in size of the safety zone as flood conditions improve, through Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the emergency nature of the action and the increasing flow rates and river height. When the Upper Mississippi River gauge in St. Louis, MO reaches 38 feet above zero, increased flow rates and vertical clearances associated with bridges in the St. Louis area between MM 179 and MM 184 result in difficulty with making safe approaches to the bridges and increase the potential for bridge strikes. When the Upper Mississippi River gauge at St. Louis, MO reaches 45 feet above zero, increased flow rates and river heights coupled with passing vessels will threaten overtopping or failure of levees between MM 109.9 and MM 179. Additionally, above St. Louis, MO, between MM 184 to 647.8, increased flow rates and river heights coupled with passing vessels will threaten overtopping or failure of levees and as levees fail or are overtopped potentially cause destructive wake effects to residents and other structures in the inundated areas. Moreover, the Coast Guard will issue a BNM via VHF-FM marine channel 16 about the zones, and the rule allows vessels to seek permission to enter the zone on a case-by-case basis.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a temporary safety zone prohibiting entry on a 538 mile stretch of the Upper Mississippi River that is experiencing significant flooding. It is categorically excluded from further review under paragraph L60 (d) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking §  Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. It would be impracticable to complete the full NPRM process for this safety zone because we need to establish it by July 27, 2019 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Marine Safety Unit Pittsburgh (COTP) has determined that a safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created from a land based firework display.

This rule establishes a safety zone on July 27, 2019, from 8:30 p.m. through 10:30 p.m. The safety zone will cover all navigable waters on the Ohio River from mile 90.8 to mile 91.4. The duration of the safety zone is intended to protect personnel, vessels, and the marine environment from potential hazards created by a land based firework display.

No vessel or person is permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard (USCG) assigned to units under the operational control of the COTP. To seek permission to enter, contact the COTP or a designated representative via VHF-FM channel 16, or through Marine Safety Unit Pittsburgh at 412-221-0807. Persons and vessels permitted to enter the safety zone must comply with all lawful orders or directions issued by the COTP or designated representative. The COTP or a designated representative will inform the public of the effective period for the safety zone as well as any changes in the dates and times of enforcement through Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, and duration of the safety zone. This safety zone impacts a one half-mile stretch of the Ohio River for a limited duration of two hours. Vessel traffic will be informed about the safety zone through local notices to mariners. Moreover, the Coast Guard will issue LNMs, MSIBs, and BNMs via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to transit the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the temporary safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting less than two hours that will prohibit entry on the Ohio River from mile 90.8 to mile 91.4, during the land based firework event. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

The Coast Guard is issuing this temporary rule without prior notice and an opportunity to comment, pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and an opportunity to comment when the agency, for good cause, finds that those procedures are impracticable, unnecessary, or contrary to the public interest. Pursuant to 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. The final details of the specific dates, vessel names, and safety zone distances concerning the safety zones were not finalized within a sufficient time to allow for notice and a subsequent 30-day comment period before the commencement of geotechnical sampling operations. Delaying this rule to allow for a notice and comment period would be impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect the public from the potential hazards associated with geotechnical sampling.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . For the same reasons discussed in the preceding paragraph, delaying the effective date of this rule would be impracticable and contrary to public interest because immediate action is needed to respond to the potential safety hazards associated with geotechnical sampling.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sault Sainte Marie (COTP) has determined that potential hazards associated with geotechnical sampling starting June 17, 2019, will be a safety concern for anyone within a 500-yard radius of all U.S. navigable waters of the Tug Nancy Anne, Jack-Up Barge JUB-100, and the Motor Vessel (M/V) Highland Eagle conducting bore hole drilling. This rule is needed to protect personnel and vessels in the navigable waters within the safety zones while geotechnical sampling is conducted.

This rule establishes two safety zones from June 17, 2019 through September 30, 2019. The safety zones will cover all navigable waters within 500 yards of the Tug Nancy Anne, Jack-Up Barge JUB-100, and M/V Highland Eagle. The duration of the zone is intended to protect personnel and vessels in these navigable waters while vessels conduct geotechnical sampling. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below, we summarize our analyses based on a number of these statutes and Executive Orders, and we also discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size and location of the safety zones. Vessel traffic will be able to safely transit around this safety zone which would impact a small designated area of the Straits of Mackinac. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Coast Guard Environmental Planning Policy, COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that does not individually or cumulatively have a significant effect on the human environment. This rule involves two safety zones that will prohibit entry within 500 yards of U.S. navigable waters of vessels, barges, and machinery being used by personnel to conduct geotechnical sampling. It is categorically excluded from further review under paragraph L60[a] in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

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

On September 29, 2017, the Illinois Environmental Protection Agency (IEPA) submitted a request to EPA for approval of its infrastructure SIP for the 2012 annual PM 2.5 NAAQS. On February 14, 2019, EPA proposed to approve the portion of the submission dealing with requirements one and two (otherwise known as “prongs” one and two) of the provision for interstate pollution transport under CAA section 110(a)(2)(D)(i), also known as the “good neighbor” provision. 1

The September 29, 2017 IEPA submittal included a demonstration that Illinois' SIP contains sufficient major programs related to the interstate transport of pollution. Illinois' submittal also included a technical analysis of its interstate transport of pollution relative to the 2012 PM 2.5 NAAQS. This analysis demonstrated that current controls are adequate for Illinois to show that it meets prongs one and two of the “good neighbor” provision. After review, EPA proposed to approve Illinois' request relating to prongs one and two of the “good neighbor” provision.

EPA's February 14, 2019 proposed rule provided a 30-day review and comment period (84 FR 4025). The comment period closed on March 18, 2019. EPA received one anonymous submission with supportive comments and one anonymous submission with adverse comments. The adverse comments and EPA's responses are addressed below.

Comment: The commenter asserts that EPA's approach to using only monitoring data to identify receptors for the purposes of evaluating interstate transport of PM 2.5 is “long standing” but is arbitrary and, thus, impermissible because EPA's approach ignores the fact that direct emissions of PM 2.5 can cause high local ambient concentrations in areas where there are no operating monitors.

Response: As described in the proposal, EPA has developed a consistent framework for addressing the prong one and two interstate transport requirements with respect to the PM 2.5 NAAQS in several previous Federal rulemakings. The four basic steps of that framework include: (1) Identifying downwind receptors that are expected to have problems attaining or maintaining the NAAQS; (2) identifying which upwind states contribute to these identified problems in amounts sufficient to warrant further review and analysis; (3) for states identified as contributing to downwind air quality problems, identifying upwind emissions reductions necessary to prevent an upwind state from significantly contributing to nonattainment or interfering with maintenance of the NAAQS downwind; and (4) for states that are found to have emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS downwind, reducing the identified upwind emissions through adoption of permanent and enforceable measures. Regarding identifying potential nonattainment and/or maintenance receptors ( i.e. step one of the framework), EPA relies primarily on existing monitoring sites and modeling to project PM 2.5 concentrations in future years. This approach to identifying potential receptors is consistent with how EPA determines whether an area is attaining or not attaining the PM 2.5 NAAQS. For the PM 2.5 NAAQS, determinations of attainment are based primarily on ambient data measured at ambient PM 2.5 Federal reference method (FRM) and Federal equivalent method (FEM) monitors. Although EPA sometimes considers other information for purposes of evaluating areas with sources that may contribute to monitored violations, the fundamental basis for evaluating attainment/nonattainment for a PM 2.5 NAAQS is the presence of one or more FRM or FEM monitors with data showing violations of the NAAQS. Similarly, for evaluating interstate PM 2.5 transport, the determination of whether there are downwind receptors that are expected to have problems attaining or maintaining the NAAQS is based on future year projections of ambient data measured at the FRM and FEM monitors in the area in question. To develop data that may be useful for analyzing interstate transport with respect to the 2012 PM 2.5 NAAQS, EPA examined recent modeling analyses developed in support of other EPA rules to identify potential PM 2.5 nonattainment and maintenance receptors. The modeling was used to project design values for the 2012 annual PM 2.5 NAAQS to several future years for each ambient monitoring site. EPA believes this is a reasonable and consistent approach for addressing interstate transport for the 2012 PM 2.5 NAAQS, and the commenter has not provided any information that would cause EPA to change the approach in this action.

Comment: The commenter asserts that EPA guidance regarding interstate transport of PM 2.5 does not cite any AERMOD modeling of the impacts of direct emissions of PM 2.5, and thus does not justify EPA's longstanding approach of ignoring this possibility. The commenter asserts that EPA should apply EPA's approach for evaluating interstate transport for the 1-hour SO 2 NAAQS, which the commenter states has in some cases examined the evidence regarding specific large, near-border sources of SO 2 emissions, to PM 2.5 .

Response: The commenter asserts that EPA should apply EPA's approach for evaluating interstate transport for the 1-hour SO 2 NAAQS, which may include dispersion modeling using a model such as AERMOD. As described in the proposal, EPA has established a consistent framework for addressing the prong one and two interstate transport requirements with respect to the PM 2.5 NAAQS in several previous Federal rulemakings. As discussed in EPA's 2016 memorandum entitled “Information on the Interstate Transport `Good Neighbor' Provision for the 2012 Fine Particulate Matter National Ambient Air Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I)” (2016 memorandum), EPA and states have used a weight-of-evidence approach to assess PM 2.5 transport from a given state to a given downwind receptor location. A state's submission for this requirement should provide the technical information that the state deems appropriate to support its conclusions. Prior guidance and EPA SIP actions suggest that suitable information might include, but is not limited to, information concerning emissions in the state, meteorological conditions in the state and in potentially impacted states, monitored ambient pollutant concentrations in the state and in potentially impacted states, distances to the nearest areas not attaining the NAAQS in other states, and air quality modeling. In contrast, SO 2 is not a regional pollutant and does not commonly contribute to widespread nonattainment over a large (and often multi-state) area. Therefore, unlike for PM 2.5, determinations of attainment or nonattainment for the SO 2 NAAQS may be based on monitoring data or dispersion modeling data (from air quality models such as AERMOD) or a combination of both. Therefore, EPA has adopted a different weight-of-evidence approach for SO 2 transport, which, when available, may include air dispersion modeling such as AERMOD in addition to other factors such as ambient monitoring data and source specific analyses. The fact that EPA has adopted an approach that has a different focus for purposes of evaluating SO 2 transport does not mean that approach is appropriate for evaluating interstate transport of a regional pollutant like PM 2.5 . For these reasons, EPA believes its approach for addressing the good neighbor provision for the 2012 PM 2.5 NAAQS is reasonable and consistent with the nature of the interstate transport of PM 2.5 and its precursors. The commenter has not provided any information that would cause EPA to change its approach in this action.

Comment: The commenter asserts that EPA should disapprove Illinois' submission because the state has failed to provide any analysis to support the implicit assertion that no large sources of direct PM 2.5 emissions in Illinois and close to the border with another state are not causing or contributing to PM 2.5 NAAQS violations in the neighboring state. The commenter asserts that in the absence of any evidence there is transport problem due to direct emissions of PM 2.5, EPA should not be applying a presumption of innocence. This is particularly true for Illinois, which has many sources that emit direct PM 2.5 (unlike some other states that mostly have sources that emit only PM 2.5 precursors).

Response: The EPA did not apply a presumption of innocence in evaluating Illinois' obligations under CAA section 110(a)(2)(D)(i)(I). Rather, EPA has used a weight-of-evidence approach to assess PM 2.5 transport from a given upwind state to a given downwind receptor location. The modeling discussed in the 2016 memorandum and referenced in the Illinois SIP considers both primary (directly emitted) PM 2.5 and precursor emissions, the different processes ( e.g., transport and deposition) that affect primary and secondary ( i.e. formed by atmospheric processes) pollutants at scales and potential receptor locations that are consistent with determinations of attainment and nonattainment. Therefore, considering the weight of evidence, EPA has determined that the Illinois analysis is adequate for their transport SIP for the 2012 PM 2.5 NAAQS. The commenter does not provide any information that indicates inconsistency or inadequacy of EPA's approach in this action, nor of Illinois' submission, which EPA is approving through this action.

In this action, EPA is approving the portion of Illinois' September 29, 2017 submission certifying that the current Illinois SIP is sufficient to meet the required infrastructure requirements under CAA section 110(a)(2)(D)(i)(I), specifically prongs one and two, as set forth above.

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 Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

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

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under CAA section 307(b)(1), petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 19, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)

40 CFR part 52 is amended as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Publishing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2018-0845 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before August 19, 2019. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2018-0845, by one of the following methods.

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of March 18, 2019 (84 FR 9735) (FRL-9989-90), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the receipt of a pesticide petition (PP IN-11260) filed by BASF Corporation, 26 Davis Drive, Research Triangle Park, NC 27709. The petition requested that 40 CFR 180.960 be amended by establishing an exemption from the requirement of a tolerance for residues of formaldehyde, reaction products with melamine (CAS Reg. No. 94645-56-4); 1,3,5-triazine-2,4,6-triamine, polymer with formaldehyde (CAS Reg. No. 9003-08-1); formaldehyde reaction products with melamine and methanol (CAS Reg. No. 94645-53-1); 1,3,5-triazine-2,4,6-triamine, polymer with formaldehyde, methylated (CAS Reg. No. 68002-20-0). That document included a summary of the petition prepared by the petitioner and solicited comments on the petitioner's request. One comment was received on the notice of filing. EPA's response to these comments is discussed in Unit VIII.B.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and use in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing an exemption from the requirement of a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . .” and specifies factors EPA is to consider in establishing an exemption.

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers expected to present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d). Melamine formaldehyde polycondensate resin conforms to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low-risk polymers.

1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.

2. The polymer does contain as an integral part of its composition at least two of the atomic elements carbon, hydrogen, nitrogen, oxygen, silicon, and sulfur.

3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).

4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.

5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.

6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.

7. The polymer does not contain certain perfluoroalkyl moieties consisting of a CF3- or longer chain length as listed in 40 CFR 723.250(d)(6).

Additionally, the polymer also meets as required the following exemption criteria specified in 40 CFR 723.250(e).

8. The polymer's number average MW of 10,000 is greater than or equal to 10,000 daltons. The polymer contains less than 2% oligomeric material below MW 500 and less than 5% oligomeric material below MW 1,000.

Thus, melamine formaldehyde polycondensate resin meet the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to melamine formaldehyde polycondensate resin.

For the purposes of assessing potential exposure under this exemption, EPA considered that melamine formaldehyde polycondensate resin could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of melamine formaldehyde polycondensate resin is 10,000 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since melamine formaldehyde polycondensate resin conform to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.

Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found melamine formaldehyde polycondensate resin to share a common mechanism of toxicity with any other substances, and melamine formaldehyde polycondensate resin does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that melamine formaldehyde polycondensate resin does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www.epa.gov/pesticides/cumulative.

Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of melamine formaldehyde polycondensate resin, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of melamine formaldehyde polycondensate resin.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

One comment was received in response to the Notice of Filing, generally stating that exposure to pesticides needs to be decreased. The Agency recognizes that some individuals believe that pesticides should be limited or banned on agricultural crops. However, the existing legal framework provided by section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA) states that tolerances may be set when persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by that statute. This citizen's comment appears to be directed at the underlying statute and not EPA's implementation of it; the citizen has provided no information that would support a conclusion that these exemptions are not safe.

Accordingly, EPA finds that exempting residues of melamine formaldehyde polycondensate resin from the requirement of a tolerance will be safe.

This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

This is a summary of the Auction 100 Procedures Public Notice, released April 17, 2019. The complete text of the Auction 100 Procedures Public Notice, including attachments and any related document, is available for public inspection and copying from 8:00 a.m. to 4:30 p.m. Eastern Time (ET) Monday through Thursday or from 8:00 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445 12th Street SW, Room CY-A257, Washington, DC 20554. The Auction 100 Procedures Public Notice and related documents also are available on the internet at the Commission's website: www.fcc.gov/auction/100, or by using the search function for AU Docket No. 17-329 on the Commission's Electronic Comment Filing System (ECFS) web page at https://www.fcc.gov/ecfs /.

1. Each applicant listed in Attachment A of the Auction 100 Procedures Public Notice previously filed a short-form application (FCC Form 175) during the initial filing window January 25-31, 2018, as an AM broadcaster seeking new cross-service FM translator construction permits. These applicants were previously given opportunities to eliminate their mutual exclusivity with other applicants' engineering proposals by settlement or technical modification to their proposals.

2. Construction Permits and Entities Eligible to Participate in Auction 100. Auction 100 will resolve by competitive bidding the remaining groups of mutually exclusive (MX) engineering proposals for FM translator construction permits. A list of the locations and channels of these proposed stations is included as Attachment A of the Auction 100 Procedures Public Notice . Attachment A also sets forth the names of applicants in each MX group, along with a minimum opening bid and an upfront payment amount for each construction permit in Auction 100.

3. Auction 100 is a closed auction; only those individual or entities listed in Attachment A of the Auction 100 Procedures Public Notice are eligible to complete the remaining steps to become qualified to bid in this auction. An applicant listed in Attachment A may become qualified to bid only if it conforms with the additional filing, qualification, and payment requirements, and otherwise complies with applicable rules, policies and procedures. Each listed applicant may become a qualified bidder only for those construction permits specified for that applicant in Attachment A of the Auction 100 Procedures Public Notice . Each of the engineering proposals within each MX group are directly mutually exclusive with one another; therefore, no more than one construction permit will be awarded for each MX group identified in Attachment A. Once mutually exclusive auction applications are accepted, and thus mutual exclusivity exists for auction purposes, an applicant cannot obtain a construction permit without placing a bid, even if no other applicant for that particular construction permit becomes qualified to bid or in fact places a bid.

4. Relevant Authority. Auction 100 applicants must familiarize themselves thoroughly with the Commission's general competitive bidding rules, including Commission decisions in proceedings regarding competitive bidding procedures (47 CFR part 1, subpart Q), application requirements, and obligations of Commission licensees. Broadcasters should also familiarize themselves with the Commission's FM translator service and competitive bidding requirements contained in 47 CFR parts 73 and 74, as well as Commission orders concerning competitive bidding for broadcast construction permits. Applicants must also be thoroughly familiar with the procedures, terms and conditions contained in the Auction 100 Procedures Public Notice and any future public notices that may be released in this proceeding.

5. The terms contained in the Commission's rules, relevant orders, and public notices are not negotiable. The Commission may amend or supplement the information contained in our public notices at any time and will issue public notices to convey any new or supplemental information to applicants. It is the responsibility of each applicant to remain current with all Commission rules and with all public notices pertaining to Auction 100.

6. Prohibited Communications. Starting at the deadline for filing a Form 175 on January 31, 2018, the rules prohibiting certain communications set forth in 47 CFR 1.2105(c) and 73.5002(d), (e) apply to each applicant that filed a Form 175 in Auction 100. Subject to specified exceptions, 47 CFR 1.2105(c)(1) provides that all applicants are prohibited from cooperating or collaborating with respect to, communicating with or disclosing, to each other in any manner the substance of their own, or each other's, or any other applicant's bids or bidding strategies (including post-auction market structure), or discussing or negotiating settlement agreements, until after the down payment deadline.

7. Thus, public disclosure of information relating to bids, bidding strategies, or to post-auction market structures may violate 47 CFR 1.2105(c). In accordance with 47 CFR 73.5002(e), the Wireless Telecommunications and Media Bureaus suspended for Auction 100 application of the prohibitions of 47 CFR 1.2105(c) and 73.5002(d) during specified periods for the limited purpose of allowing settlement discussions. Discussion of information covered by these rules outside of the settlement period would violate the rules.

8. Entities Subject to Section 1.2105. An applicant for purposes of this rule includes all officers and directors of the entity submitting the Form 175, all controlling interests in that entity, as well as all holders of interests amounting to 10% or more of that entity. A party that submits an application becomes an applicant under the rule at the application deadline and that status does not change based on subsequent developments. Thus, an Auction 100 applicant that does not correct deficiencies in its application, fails to submit a timely and sufficient upfront payment, or does not otherwise become qualified to bid, remains an applicant for purposes of 47 CFR 1.2105(c) and remains subject to the prohibition on certain communications until the applicable down payment deadline.

9. Scope of Prohibition on Communications; Prohibition on Joint Bidding Agreements. The Commission in 2015 amended 47 CFR 1.2105(c) to extend the prohibition on communications to cover all applicants for an auction regardless of whether the applicants seek permits or licenses in the same geographic area or market. The Commission also now prohibits a joint bidding arrangement, including arrangements relating to the permits or licenses being auctioned that address or communicate, directly or indirectly, bids, bidding, or bidding strategies, including arrangements regarding price or the specific permits or licenses on which to bid, and any such arrangements relating to the post-auction market structure. The revised rule provides limited exceptions for a communication within the scope of any arrangement consistent with the exclusion from the Commission's rule prohibiting joint bidding, provided such arrangement is disclosed on the applicant's auction application. An applicant may continue to communicate pursuant to any pre-existing agreements, arrangements, or understandings that are solely operational or that provide for a transfer or assignment of license, provided that such agreements, arrangements or understandings do not involve the communication or coordination of bids (including amounts), bidding strategies, or the particular permits or licenses on which to bid and provided that such agreements, arrangements or understandings are disclosed on its application.

10. In recognition of the specific eligibility restrictions and filing procedures established by the Commission for the Auction 100 filing window, however, in the Auction 100 Filing Instructions Public Notice, the Bureaus waived for Auction 100 the provisions of section 1.2105(a)(3) to allow entities controlled by the same individual or set of individuals to file separate Forms 175. Some Auction 100 applicants under common control filed separate Forms 175 relying on the waiver of section 1.2105(a)(3).

11. In this public notice, Auction 100 applicants were reminded that the Commission presumes, due to the definition of an auction applicant contained in 47 CFR 1.2105(c), that bidding strategies are communicated between entities that share a common officer or director. Moreover, current rules bar most kinds of joint bidding agreements, including agreements for certain communication between commonly controlled entities or other auction applicants. Further, when there is a disclosable interest holder or holders for more than one Form 175 in the same auction, section 1.2105(a)(2)(x) requires that each such Form 175 include a certification that internal controls have been implemented that preclude any individual acting on behalf of an Auction 100 applicant from possessing information about the bids or bidding strategies, including post-auction market structure, of more than one Auction 100 applicant or communicating such information to anyone possessing such information regarding another Auction 100 applicant.

12. Section 1.2105(c) Certification. By electronically submitting its Form 175, each applicant in Auction 100 certified its compliance with 47 CFR 1.2105(c) and 73.5002(d). However, the mere filing of a certifying statement as part of an application will not outweigh specific evidence that a prohibited communication has occurred, nor will it preclude the initiation of an investigation when warranted. Any applicant found to have violated these communication prohibitions may be subject to sanctions.

13. Reporting Requirements. According to 47 CFR 1.2105(c)(4), any applicant that makes or receives a communication that appears to violate 47 CFR 1.2105(c) must report such communication in writing to the Commission immediately, and in no case later than five business days after the communication occurs. Each applicant's obligation under 47 CFR 1.2105(c)(4) to report any such communication continues beyond the five-day period after the communication is made, even if the report is not made within the five-day period.

14. Procedures for Reporting Prohibited Communications. Any report required by 47 CFR 1.2105(c) must be filed consistent with the instructions set forth in the Auction 100 Procedures Public Notice . For Auction 100, a party must file only a single report concerning a prohibited communication and the report must be filed with the Chief of the Auctions Division, Office of Economics and Analytics (OEA), by the most expeditious means available. Any such report should be submitted by email to Margaret W. Wiener at the following email address: auction100@fcc.gov. Any such report submitted in hard copy must be delivered only to: Margaret W. Wiener, Chief, Auctions Division, OEA, FCC, 445 12th Street SW, Washington, DC 20554.

15. A party reporting any communication pursuant to 47 CFR 1.65, 1.2105(a)(2), or 1.2105(c)(4) must take care to ensure that any report of a prohibited communication does not itself give rise to a violation of 47 CFR 1.2105(c). For example, a party's report of a prohibited communication could violate the rule by communicating prohibited information to other applicants through the use of Commission filing procedures that would allow such materials to be made available for public inspection, such as, a submission to the Commission's Office of the Secretary or ECFS. A party seeking to report such a prohibited communication should consider submitting its report with a request that the report or portions of the submission be withheld from public inspection by following the procedures specified in 47 CFR 0.459. Such parties also are encouraged to coordinate with the Auctions Division staff about the procedures for submitting such reports.

16. Winning Bidders Must Disclose Terms of Agreements. Each applicant that is a winning bidder will be required to disclose in its long-form application the specific terms, conditions, and parties involved in any agreement it has entered into. This applies to any bidding consortia, joint venture, partnership, or agreement, understanding, or other arrangement entered into relating to the competitive bidding process, including any agreement relating to the post-auction market structure. Failure to comply with the Commission's rules can result in enforcement action.

17. Compliance with Antitrust Laws. Conduct that is permissible under the Commission's rules may be prohibited by antitrust laws. Regardless of compliance with the Commission's rules, applicants remain subject to the antitrust laws. Compliance with the disclosure requirements of 47 CFR 1.2105(c) will not insulate a party from enforcement of the antitrust laws. To the extent the Commission becomes aware of specific allegations that suggest that violations of the federal antitrust laws may have occurred, the Commission may refer such allegations to the U.S. Department of Justice for investigation. If an applicant is found to have violated the antitrust laws or the Commission's rules in connection with its participation in the competitive bidding process, it may be subject to forfeiture of its upfront payment, down payment, or full bid amount and may be prohibited from participating in future auctions, among other sanctions.

18. Due Diligence. Each potential bidder is solely responsible for investigating and evaluating all technical and marketplace factors that may have a bearing on the value of the cross-service FM translator construction permits that it is seeking in Auction 100. The FCC makes no representations or warranties about the use of this spectrum or these construction permits for particular services. Applicants should be aware that an FCC auction represents an opportunity to become an FCC permittee in a broadcast service, subject to certain conditions and regulations. An FCC auction does not constitute an endorsement by the FCC of any particular service, technology, or product, nor does an FCC construction permit or license constitute a guarantee of business success.

19. An applicant should perform its due diligence research and analysis before proceeding, as it would with any new business venture. In particular, each potential bidder is strongly encouraged to perform technical analyses and/or refresh its previous analyses to assure itself that, should it become a winning bidder for any Auction 100 construction permit, it will be able to build and operate facilities that will fully comply with all applicable technical and legal requirements. Each applicant is strongly encouraged to inspect any prospective transmitter sites located in, or near, the service area for which it plans to bid, confirm the availability of such sites, and to familiarize itself with the Commission's rules regarding the National Environmental Policy Act, 47 CFR part 1, subpart I.

20. Each applicant is strongly encouraged to continue to conduct its own research throughout Auction 100 in order to determine the existence of pending or future administrative or judicial proceedings that might affect its decision on continued participation in Auction 100. Each Auction 100 applicant is responsible for assessing the likelihood of the various possible outcomes and for considering the potential impact on construction permits available in Auction 100. These due diligence considerations do not comprise an exhaustive list of steps that should be undertaken prior to participating in Auction 100. As always, the burden is on the potential bidder to determine how much research to undertake, depending upon specific facts and circumstances related to its interests.

21. Applicants are solely responsible for identifying associated risks and for investigating and evaluating the degree to which such matters may affect their ability to bid on, otherwise acquire, or make use of the construction permits available in Auction 100. Each potential bidder is responsible for undertaking research to ensure that any permits won in Auction 100 will be suitable for its business plans and needs. Each potential bidder must undertake its own assessment of the relevance and importance of information gathered as part of its due diligence efforts.

22. The Commission makes no representations or guarantees regarding the accuracy or completeness of information in its databases or any third party databases, including, for example, court docketing systems. Furthermore, the Commission makes no representations or guarantees regarding the accuracy or completeness of information that has been provided by incumbent licensees and incorporated into its databases. To the extent the Commission's databases may not include all information deemed necessary or desirable by an applicant, it must obtain or verify such information from independent sources or assume the risk of any incompleteness or inaccuracy in said databases.

23. Use of Auction Systems. The Commission makes no warranty whatsoever with respect to the FCC auction application system and the auction bidding system. In no event shall the Commission, or any of its officers, employees, or agents, be liable for any damages whatsoever (including, but not limited to, loss of business profits, business interruption, loss of business information, or any other loss) arising out of or relating to the existence, furnishing, functioning, or use of the FCC auction systems that are accessible to qualified bidders in connection with Auction 100. Moreover, no obligation or liability will arise out of the Commission's technical, programming, or other advice or service provided in connection with the FCC auction systems.

24. Maintaining Current Information in Forms 175. Each Auction 100 applicant has a duty pursuant to 47 CFR 1.65 and 1.2105(b) to continuously maintain the accuracy and completeness of all information furnished in its pending application and in competitive bidding proceedings to furnish additional or corrected information to the Commission within 5 days of a significant occurrence, or to amend a Form 175 no more than 5 days after the applicant becomes aware of the need for the amendment.

25. Minor Modifications to Forms 175. After the initial application filing deadline on January 31, 2018, an Auction 100 applicant is permitted to make only minor changes to its application consistent with the Commission's rules. Permissible minor changes include, among other things, deletion and addition of authorized bidders (to a maximum of three) and revision of addresses and telephone numbers of the applicant, its responsible party, or its contact person. Pursuant to 47 CFR 1.2105(b), minor amendments include any changes that are not major, such as correcting typographical errors or supplying and correcting information as requested to support certifications made in the application.

26. In this context, major amendments to a Form 175 include a change of technical proposal, change in control of the applicant ( e.g., certain changes in ownership or control that would constitute an assignment or transfer of control of the applicant), change in claimed bidding credit eligibility to a higher percentage of bidding credit, change in required certifications, change in the applicant's legal classification that results in a change of control, or change in the identification of the application's proposed facilities as noncommercial educational after the initial application filing deadline. If revised or updated information constitutes a major amendment as defined by section 1.2105, such changes will not be accepted and may result in dismissal of the application. Even if an applicant's Form 175 is dismissed, the applicant would remain subject to the prohibitions on certain communications of 47 CFR 1.2105(c) until the down payment deadline for Auction 100.

27. Submission of Updates to Forms 175. Updates to Forms 175 should be made electronically using the FCC auction application system whenever possible. For the change to be submitted and considered by the Commission, be sure to click on the SUBMIT button.

28. An applicant should not use the auction application system outside of the initial and resubmission filing windows to make changes to its Form 175 for other than administrative changes ( e.g., changing contact information). After the filing window has closed, the system will not permit applicants to modify information in most of the application's data fields.

29. If changes need to be made outside of the initial and resubmission filing windows for other than the minor administrative changes as described, the applicant must submit a letter briefly summarizing the changes and subsequently update its Form 175 in the auction application system once it is available. Any letter describing changes to an applicant's Form 175 must be addressed to Margaret W. Wiener, Chief, Auctions Division, OEA, and submitted by email to auction100@fcc.gov . The email summarizing the changes must include a subject or caption referring to Auction 100 and the name of the applicant, for example, “Re: Changes to Auction 100 Short-Form Application of ABC Corp.” Parties should format any attachments to email as Adobe® Acrobat® (pdf) or Microsoft® Word documents. Questions about Form 175 amendments should be directed to the Auctions Division at (202) 418-0660.

30. Applicants must not submit application-specific material through the Commission's ECFS.

31. Submission of a Form 175 (and any amendments thereto) constitutes a representation by the person certifying the application that he or she is an authorized representative of the applicant with authority to bind the applicant, that he or she has read the form's instructions and certifications, and that the contents of the application, its certifications, and any attachments are true and correct. Submission of a false certification to the Commission is a serious matter that may result in severe penalties, including monetary forfeitures, license revocations, exclusion from participation in future auctions, and/or criminal prosecution.

32. Provisions Regarding Former and Current Defaulters. Current defaulters or delinquents are not eligible to participate in Auction 100, but former defaulters or delinquents can participate so long as they are otherwise qualified and make upfront payments that are 50% more than would otherwise be necessary. An applicant is considered a current defaulter or a current delinquent when it, any of its affiliates (as defined in 47 CFR 1.2110), any of its controlling interests (as defined in 47 CFR 1.2105(a)(4)(i)), or any of the affiliates of its controlling interests, is in default on any payment for any Commission construction permit or license (including a down payment) or is delinquent on any non-tax debt owed to any Federal agency as of the filing deadline for Forms 175 in that auction.

33. Thus, an auction applicant must certify under penalty of perjury on its Form 175 that it, its affiliates, its controlling interests, and the affiliates of its controlling interests, were not in default on any payment for a Commission construction permit or license (including down payments) and not delinquent on any non-tax debt owed to any Federal agency. Accordingly, if an applicant had an outstanding non-tax debt to the Commission or any other Federal agency, including any debt that resulted in a listing of the applicant on the Commission's Red Light Display System, the applicant would have been unable to make the required certification that it is not currently in default; if so, such applicant will not be eligible to participate in the bidding for Auction 100.

34. An applicant is considered a former defaulter or a former delinquent when the applicant or any of its controlling interests has defaulted on any Commission construction permit or license or has been delinquent on any non-tax debt owed to any Federal agency, but has since remedied all such defaults and cured all of the outstanding non-tax delinquencies prior to the Form 175 filing deadline in Auction 100. Each Auction 100 applicant must certify under penalty of perjury whether it, along with any of its controlling interests (as defined in 47 CFR 1.2105(a)(4)(i)), has ever been in default on any payment for a Commission construction permit or license (including a down payment) or has ever been delinquent on any non-tax debt owed to any Federal agency. If an applicant or any controlling interest is a former defaulter or former delinquent, the applicant may participate further in Auction 100 so long as it is otherwise qualified and that applicant makes an upfront payment that is 50% more than would otherwise be required.

35. In 2015, the Commission narrowed the scope of the individuals and entities to be considered a former defaulter or a former delinquent. For purposes of the certification under 47 CFR 1.2105(a)(2)(xii), the applicant may exclude from consideration any cured default on a Commission construction permit or license or any cured delinquency on a non-tax debt owed to a Federal agency for which any of the following criteria are met: (1) The notice of the final payment deadline or delinquency was received more than seven years before the Form 175 filing deadline; (2) the default or delinquency amounted to less than $100,000; (3) the default or delinquency was paid within six months after receiving the notice of the final payment deadline or delinquency; or (4) the default or delinquency was the subject of a legal or arbitration proceeding and was cured upon resolution of the proceeding.

36. Applicants are encouraged to review previous guidance on default and delinquency disclosure requirements in the context of the auction Form 175 process. For example, it has been determined that, to the extent that Commission rules permit late payment of regulatory or application fees accompanied by late fees, such debts will become delinquent for purposes of 47 CFR 1.2105(a) and 1.2106(a) only after the expiration of a final payment deadline. Therefore, with respect to regulatory or application fees, the provisions of 47 CFR 1.2105(a) and 1.2106(a) regarding default and delinquency in connection with competitive bidding are limited to circumstances in which the relevant party has not complied with a final payment deadline. Parties are encouraged to consult with the Auctions Division staff if they have any questions about default and delinquency disclosure requirements.

37. The FCC considers outstanding debts owed to the U.S. Government, in any amount, to be a serious matter. The FCC adopted rules that implement its obligations under the Debt Collection Improvement Act of 1996, including a provision referred to as the red light rule. The FCC's competitive bidding rules with regard to current and former defaults or delinquencies, including the provisions and certifications of 47 CFR 1.2105 and 1.2106, are not affected by the red light rule.

38. The FCC's Red Light Display System, which provides information regarding debts currently owed to the FCC, may not be determinative of an auction applicant's ability to comply with the default and delinquency disclosure requirements of 47 CFR 1.2105. Thus, while the red light rule ultimately may prevent the processing of long-form applications by auction winners, an auction applicant's lack of current red light status is not necessarily determinative of its eligibility to participate in an auction (or whether it will have an increased upfront payment obligation).

39. Moreover, applicants in Auction 100 should note that any long-form applications filed after the close of bidding will be reviewed for compliance with the Commission's red light rule, and such review may result in the dismissal of a winning bidder's long-form application. Each applicant is strongly encouraged to carefully review all records and other available federal agency databases and information sources to determine whether the applicant, or any of its affiliates, or any of its controlling interests, or any of the affiliates of its controlling interests, currently owes or was ever delinquent in the payment of non-tax debt owed to any federal agency. An applicant that has its long-form application dismissed will be deemed to have defaulted and will be subject to default payments under 47 CFR 1.2104(g) and 1.2109(c).

40. Tutorial. A bidding procedures tutorial is available in the Education section of the Auction 100 website and will remain accessible for reference.

41. Correction of Application Deficiencies. An applicant whose application is found to contain deficiencies will be provided with a limited opportunity to bring its application into compliance with the Commission's competitive rules during a resubmission window, the dates for which will be announced in a future public notice. Commission staff will communicate only with an applicant's contact person or certifying official, as designated on the Form 175, unless the applicant's certifying official or contact person notifies the Commission in writing that applicant's counsel or other representative is authorized to speak on its behalf. Authorizations may be sent by email to auction100@fcc.gov .

42. Deadline for Upfront Payments. In order to become eligible to bid in Auction 100, a sufficient upfront payment must be submitted by wire transfer to the FCC's account for Auction 100 at the U.S. Treasury before 6:00 p.m. ET on May 23, 2019, following the instructions in Attachment B to the Auction 100 Procedures Public Notice, together with submission to the FCC of a complete and accurate FCC Remittance Advice Form (FCC Form 159). After completing its short-form application, an applicant will have access to an electronic version of the Form 159. This Form 159 can be printed, and the completed form must be sent by fax to the FCC at (202) 418-2843, or by email to RROGWireFaxes@fcc.gov .

43. Upfront Payments and Bidding Eligibility. Applicants must make upfront payments sufficient to obtain bidding eligibility on the construction permit(s) on which they will bid. The amount of the applicant's upfront payment will determine a bidder's initial bidding eligibility, the maximum number of bidding units on which a bidder may place bids in any single round. In order to bid on a particular construction permit, otherwise qualified bidders that are designated in Attachment A of the Auction 100 Procedures Public Notice for that construction permit, must have a current eligibility level that meets or exceeds the number of bidding units assigned to that construction permit. At a minimum, therefore, an applicant's total upfront payment must be enough to establish eligibility to bid on at least one of the construction permits designated for that applicant in Attachment A of the Auction 100 Procedures Public Notice, or else the applicant will not be eligible to participate in the auction. An applicant does not have to make an upfront payment to cover all construction permits designated for that applicant in Attachment A of the Auction 100 Procedures Public Notice, but only enough to cover the maximum number of bidding units that are associated with construction permits on which they wish to place bids and hold provisionally winning bids in any given round. The total upfront payment does not affect the total dollar amount the bidder may bid on any given construction permit.

44. In Auction 100, the upfront payment amount determines a bidder's initial bidding eligibility, The specific upfront payment amount and bidding units for each construction permit are set forth in Attachment A of the Auction 100 Procedures Public Notice . In calculating its upfront payment amount, an applicant should determine the maximum number of bidding units on which it may wish to be active (bid on or hold provisionally winning bids on) in any single round, and submit an upfront payment amount covering that number of bidding units. In order to make this calculation, an applicant should add together the bidding units for all construction permits on which it seeks to be active in any given round. Applicants should check their calculations carefully as there is no provision for increasing a bidder's eligibility after the upfront payment deadline.

45. Applicants that are former defaulters must pay upfront payments 50% greater than non-former defaulters. For this classification as a former defaulter or a former delinquent, defaults and delinquencies of the applicant itself and its controlling interests are included. For this purpose, the term controlling interest is defined in 47 CFR 1.2105(a)(4)(i). As required by 47 CFR 1.2106(a), if an applicant is a former defaulter, it must calculate its upfront payment for all of its construction permits by multiplying the number of bidding units on which it wishes to be active by 1.5. In order to calculate the number of bidding units to assign to former defaulters, the Commission will divide the upfront payment received by 1.5 and round the result up to the nearest bidding unit. If a former defaulter fails to submit a sufficient upfront payment to establish eligibility to bid on at least one of the construction permits designated for that applicant in Attachment A of the Auction 100 Procedures Public Notice, the applicant will not be eligible to participate further in the auction. This applicant will retain its status as an applicant in Auction 100 and will remain subject to 47 CFR 1.2105(c) and 73.5002(d).

46. Qualified Bidder Classification. Only qualified bidders are permitted to bid. A qualified bidder is an applicant identified in Attachment A of the Auction 100 Procedures Public Notice, with a submitted Form 175 that is found to be timely filed, accurate, and substantially complete ( i.e. substantially complies with the Commission's competitive bidding rules and other applicable Commission rules, as well as the procedures and deadlines set forth in the Auction 100 Procedures Public Notice, provided that such applicant has timely submitted an upfront payment following the procedures and instructions set forth in Attachment B to the Auction 100 Procedures Public Notice and that is sufficient for at least one of the construction permits for which it is designated as an applicant in Attachment A.

47. Auction Registration. All qualified bidders are automatically registered for the auction. Registration materials will be distributed prior to the auction by overnight mail. For security purposes, the mailing will be sent only to the contact person at the contact address listed in the Form 175 and will include the SecurID® tokens that will be required to place bids, an FCC assigned username (User ID) for each authorized bidder, the bidding system web address and instructions for accessing and logging in to the auction bidding system, and the telephonic bidding telephone number.

48. Qualified bidders that do not receive this registration mailing will not be able to submit bids. Therefore, if this mailing is not received by noon on June 19, 2019, the contact listed on that applicant's Form 175 must call the Auctions Hotline at (717) 338-2868. Receipt of the registration mailing is critical to participating in the auction, and each applicant is responsible for ensuring it has received all of the registration materials.

49. In the event that SecurID® tokens are lost or damaged, only a person who has been designated as an authorized bidder, contact, or certifying official on the applicant's Form 175 may request replacements. To request replacement of these items, call the Auction Bidder Line at the telephone number provided in the registration materials or the Auction Hotline at (717) 338-2868.

50. Each authorized bidder must have its own SecurID® token, which the Commission will provide at no charge. Each applicant with one authorized bidder will be issued two SecurID® tokens, while applicants with two or three authorized bidders will be issued three tokens. Each SecurID® token is tailored to a specific auction.

51. Mock Auction. All qualified bidders will be eligible to participate in a mock auction on Friday, June 21, 2019. The mock auction will enable bidders to become familiar with the FCC auction bidding system and to practice submitting bids prior to the auction. All qualified bidders, including all authorized bidders, are strongly encouraged to participate in the mock auction.

52. Simultaneous Multiple Round Auction. The Commission's standard simultaneous multiple-round auction format will be used for Auction 100. This type of auction offers every construction permit for bid at the same time and consists of successive bidding rounds in which qualified bidders may place bids on individual construction permits. Unless otherwise announced, bids will be accepted on all construction permits in each round of the auction until bidding stops on every construction permit.

53. Eligibility and Activity Rules. For Auction 100, the amount of the upfront payment submitted by a bidder determines initial bidding eligibility, the maximum number of bidding units on which a bidder may be active. Each construction permit is assigned a specific number of bidding units as listed in Attachment A of the Auction 100 Procedures Public Notice . Bidding units assigned to each construction permit do not change as prices rise during the auction. Upfront payments are not attributed to specific construction permits. Rather, a bidder may place bids on any of the construction permits for which it is designated an applicant in Attachment A of the Auction 100 Procedures Public Notice as long as the total number of bidding units associated with those construction permits does not exceed its current eligibility. Eligibility cannot be increased during the auction; it can only remain the same or decrease. Thus, in calculating its upfront payment amount and therefore its initial bidding eligibility, an applicant must determine the maximum number of bidding units on which it may wish to bid or hold provisionally winning bids in any single round, and submit an upfront payment amount covering that total number of bidding units. At a minimum, an applicant's upfront payment must cover the bidding units for at least one of the construction permits for which it is designated an applicant in Attachment A in the Auction 100 Procedures Public Notice . The total upfront payment does not affect the total dollar amount a bidder may bid on any given construction permit.

54. To ensure that an auction closes within a reasonable period of time, an activity rule requires bidders to bid actively throughout the auction, rather than wait until late in the auction before participating. Bidders are required to be active on a specific percentage of their current bidding eligibility during each round of the auction.

55. A bidder's activity level in a round is the sum of the bidding units associated with construction permits covered by the bidder's new bids in the current round and provisionally winning bids from the previous round. A provisionally winning bid is a bid that would become a final winning bid if the auction were to close after the given round.

56. In Auction 100, a bidder is required to be active on 100% of its current eligibility during each round of the auction. That is, a bidder must either place a bid or be a provisionally winning bidder during each round of the auction. Failure to maintain the requisite activity level will result in the use of an activity rule waiver, if any remain, or a reduction in the bidder's eligibility, possibly curtailing or eliminating the bidder's ability to place additional bids in the auction.

57. Activity Rule Waivers. In Auction 100, each bidder is provided with three activity rule waivers. Bidders may use an activity rule waiver in any round during the course of the auction. Use of an activity rule waiver preserves the bidder's eligibility despite its activity in the current round being below the required minimum activity level. An activity rule waiver applies to an entire round of bidding, not to a particular construction permit. Activity rule waivers can be either proactive or automatic. Activity rule waivers are principally a mechanism for a bidder to avoid the loss of bidding eligibility in the event that exigent circumstances prevent it from bidding in a particular round.

58. The FCC auction bidding system will assume that a bidder that does not meet the activity requirement would prefer to use an activity rule waiver (if available) rather than lose bidding eligibility. Therefore, the system will automatically apply a waiver at the end of any bidding round in which a bidder's activity level is below the minimum required unless (1) the bidder has no activity rule waivers remaining or (2) the bidder overrides the automatic application of a waiver by reducing eligibility, thereby meeting the activity requirement. If a bidder has no waivers remaining and does not satisfy the required activity level, the bidder's current eligibility will be permanently reduced, possibly curtailing or eliminating the ability to place additional bids in the auction.

59. A bidder with insufficient activity may wish to reduce its bidding eligibility rather than use an activity rule waiver. If so, the bidder must affirmatively override the automatic waiver mechanism during the bidding round by using the reduce eligibility function in the FCC auction bidding system. In this case, the bidder's eligibility would be permanently reduced to bring it into compliance with the Auction 100 activity rule. Reducing eligibility is an irreversible action; once eligibility has been reduced, a bidder cannot regain its lost bidding eligibility.

60. Also, a bidder may apply an activity rule waiver proactively as a means to keep the auction open without placing a bid. If a bidder proactively were to apply an activity rule waiver (using the proactive waiver function in the FCC auction bidding system) during a bidding round in which no bid is placed, the auction will remain open and the bidder's eligibility will be preserved. An automatic waiver applied by the FCC auction bidding system in a round in which there is no new bid or a proactive waiver will not keep the auction open.

61. Auction Stopping Rule. For Auction 100, a simultaneous stopping rule approach will be employed, which means all construction permits remain available for bidding until bidding stops on every construction permit. Specifically, bidding will close on all construction permits after the first round in which no bidder submits any new bid or applies a proactive waiver.

62. Alternative versions of the simultaneous stopping procedure also may be employed for Auction 100. (1) The auction would close for all construction permits after the first round in which no bidder applies a waiver or places any new bid on a construction permit for which it is not the provisionally winning bidder. Thus, absent any other bidding activity, a bidder placing a new bid on a construction permit for which it is the provisionally winning bidder would not keep the auction open under this modified stopping rule. (2) The auction would close for all construction permits after the first round in which no bidder applies a proactive waiver or places any new bid on a construction permit that already has a provisionally winning bid. Thus, absent any other bidding activity, a bidder placing a new bid on an FCC-held construction permit (a construction permit that does not have a provisionally winning bid) would not keep the auction open under this modified stopping rule. (3) The auction would close using a modified version of the simultaneous stopping rule that combines options (1) and (2). (4) The auction would close after announcement of a specified number of additional rounds (special stopping rule). If this special stopping rule is invoked, bids in the specified final round(s) will be accepted, after which the auction will close. (5) The auction would remain open even if no bidder places any new bids or applies a waiver. In this event, the effect will be the same as if a bidder had applied a waiver. The activity rule will apply as usual, and a bidder with insufficient activity will either lose bidding eligibility or use a waiver.

63. These options will be exercised only in certain circumstances. For example, where the auction is proceeding unusually slowly or quickly, there is minimal overall bidding activity, or it appears likely that the auction will not close within a reasonable period of time or will close prematurely. Before exercising these options, it is likely that there will be an attempt to change the pace of the auction, such as, changing the number of bidding rounds per day and/or the minimum acceptable bids. The Media Bureau (MB) and OEA retain the discretion to exercise any of these options with or without prior announcement during the auction.

64. Auction Delay, Suspension or Cancellation. By public notice and/or by announcement through the FCC auction bidding system, bidding in Auction 100 may be delayed, suspended, or cancelled in the event of natural disaster, technical obstacle, administrative or weather necessity, evidence of an auction security breach or unlawful bidding activity, or for any other reason that affects the fair and efficient conduct of competitive bidding. In such cases, MB and OEA, in their sole discretion, may elect to resume the auction starting from the beginning of the current round or from some previous round, or cancel the auction in its entirety. Network interruption may cause delay or suspension of the auction. MB and OEA will exercise this authority solely at their discretion, and not as a substitute for situations in which bidders may wish to apply their activity rule waivers.

65. Round Structure. The initial schedule of bidding rounds will be announced in the public notice listing the qualified bidders, which is released at least one week before the start of bidding in the auction. Each bidding round is followed by the release of round results. Multiple bidding rounds may be conducted each day. Moreover, unless otherwise announced, bidding on all construction permits will be conducted on each business day until bidding has stopped on all construction permits. MB and OEA retain the discretion to change the bidding schedule, and may change the amount of time for the bidding rounds, the amount of time between rounds, or the number of rounds per day, depending upon bidding activity and other factors.

66. Reserve Price and Minimum Opening Bids. Normally, a reserve price is an absolute minimum price below which a construction permit or license will not be sold in a specific auction. There are no reserve prices for construction permits in Auction 100.

67. A minimum opening bid is the minimum bid price set at the beginning of the auction below which no bids are accepted. The specific minimum opening amount adopted for each construction permit is listed in Attachment A to the Auction 100 Procedures Public Notice.

68. Bid Amounts. If the qualified bidder has sufficient eligibility to place a bid on a particular construction permit, a bidder will be able to place a bid on a given construction permit in any of up to 9 different amounts. The FCC auction bidding system interface will list the 9 acceptable bid amounts for each construction permit. For calculation of the 9 acceptable bid amounts for each construction permit, Auction 100 will begin with a minimum acceptable bid increment percentage of 10% and an additional bid increment percentage of 5%.

69. In Auction 100, the minimum acceptable bid amount for a construction permit will be equal to its minimum opening bid amount until there is a provisionally winning bid for the construction permit. After there is a provisionally winning bid for a construction permit, the minimum acceptable bid amount will be calculated by multiplying the provisionally winning bid amount by one plus the minimum acceptable bid percentage— i.e., provisionally winning bid amount * 1.10, rounded using the Commission's standard rounding procedures for auctions as described in the Auction 100 Procedures Public Notice .

70. In Auction 100, the FCC auction bidding system will calculate the 8 additional bid amounts by multiplying the minimum acceptable bid amount by the additional bid increment percentage of 5%, and that result (rounded) is the additional increment amount. The first additional acceptable bid amount equals the minimum acceptable bid amount plus the additional increment amount. The second additional acceptable bid amount equals the minimum acceptable bid amount plus two times the additional increment amount; the third additional acceptable bid amount is the minimum acceptable bid amount plus three times the additional increment amount; etc. Because the additional bid increment percentage is 5%, the calculation of the additional increment amount is (minimum acceptable bid amount) * (0.05), rounded. The first additional acceptable bid amount equals (minimum acceptable bid amount) + (additional increment amount); the second additional acceptable bid amount equals (minimum acceptable bid amount) + (2 * (additional increment amount)); the third additional acceptable bid amount equals (minimum acceptable bid amount) + (3 * (additional increment amount)); etc.

71. MB and OEA retain the discretion to change bid amounts, including the minimum acceptable bid amounts, the minimum acceptable bid percentage, the additional bid increment percentage, and the number of acceptable bid amounts if MB and OEA determine that circumstances so dictate. Further, MB and OEA retain the discretion to do so on a construction permit-by-construction permit basis. MB and OEA also retain the discretion to limit (a) the amount by which a minimum acceptable bid for a construction permit may increase compared with the corresponding provisionally winning bid, and (b) the amount by which an additional bid amount may increase compared with the immediately preceding acceptable bid amount. For example, MB and OEA could set a $1,000 limit on increases in minimum acceptable bid amounts over provisionally winning bids. Thus, if calculating a minimum acceptable bid using the minimum acceptable bid percentage results in a minimum acceptable bid amount that is $1,200 higher than the provisionally winning bid on a construction permit, the minimum acceptable bid amount would instead be capped at $1,000 above the provisionally winning bid. If MB and OEA exercise this discretion to change bid amounts, they will alert bidders by announcement in the FCC auction bidding system during the auction.

72. Provisionally Winning Bids. The FCC auction bidding system at the end of each bidding round will determine a provisionally winning bid for each construction permit based on the highest bid amount received for that permit. A provisionally winning bid will remain the provisionally winning bid until there is a higher bid on the same construction permit at the close of a subsequent round. Provisionally winning bids at the end of the auction become the winning bids. Provisionally winning bids count toward activity for purposes of the activity rule.

73. The FCC auction bidding system, using a pseudo-random number generator, will assign a pseudo-random number to each bid upon submission. In the event of identical high bid amounts being submitted on a construction permit in a given round ( i.e., tied bids), the tied bid with the highest random number wins the tiebreaker, and becomes the provisionally winning bid. The remaining bidders, as well as the provisionally winning bidder, can submit higher bids in subsequent rounds. However, if the auction were to close with no other bids being placed, the winning bidder would be the one that placed the provisionally winning bid. If the construction permit receives any bids in a subsequent round, the provisionally winning bid again will be determined by the highest bid amount received for the construction permit.

74. Remote Electronic Bidding. The Commission will conduct Auction 100 remotely over the internet using the FCC auction bidding system, and telephonic bidding will be available as well. There will be no on-site bidding during Auction 100. Telephonic bid assistants are required to use a script when entering bids placed by telephone. Telephonic bidders are reminded to allow sufficient time to bid by placing their calls well in advance of the close of a round. The length of a call to place a telephonic bid may vary; please allow a minimum of 10 minutes. All telephone calls are recorded.

75. An Auction 100 bidder's ability to bid on specific construction permits is determined by two factors: (1) The construction permits designated for that applicant in Attachment A of the Auction 100 Procedures Public Notice and (2) the bidder's eligibility in that a bidder must have sufficient eligibility to place a bid on a particular construction permit. The bid submission screens will allow bidders to submit bids on only those construction permits designated for that applicant in Attachment A.

76. In order to access the bidding function of the FCC auction bidding system, bidders must be logged in during the bidding round using the passcode generated by the SecurID® token and a personal identification number (PIN) created by the bidder. Bidders are strongly encouraged to print a round summary for each round after they have completed all of their activity for that round.

77. In each round, if a qualified bidder has sufficient eligibility for a particular construction permit, that bidder will be able to place bids on a given construction permit in any of up to 9 pre-defined bid amounts. For each construction permit, the FCC auction bidding system will list the acceptable bid amounts in a drop-down box. Bidders use the drop-down box to select from among the acceptable bid amounts. The FCC auction bidding system also includes an upload function that allows text files containing bid information to be uploaded.

78. Until a bid has been placed on a construction permit, the minimum acceptable bid amount for that permit will be equal to its minimum opening bid amount. Once there are bids on a permit, minimum acceptable bids for the following round will be determined as described in the Auction 100 Procedures Public Notice.

79. During a round, an eligible bidder may submit bids for as many construction permits as it wishes (providing that it is eligible to bid on the specific permits), remove bids placed in the current bidding round, or permanently reduce eligibility. If multiple bids are submitted for the same construction permit in the same round, the system takes the last bid entered as that bidder's bid for the round. Bidding units associated with construction permits for which the bidder has removed bids do not count towards current activity.

80. Bid Removal and Bid Withdrawal. In the FCC auction bidding system, each qualified bidder has the option of removing any bids placed in a round provided that such bids are removed before the close of that bidding round. By removing a bid within a round, a bidder effectively unsubmits the bid. A bidder removing a bid placed in the same round is not subject to withdrawal payments. Removing a bid will affect a bidder's activity because a removed bid no longer counts toward bidding activity for the round. Once a round closes, a bidder may no longer remove a bid.

81. In Auction 100, bidders are prohibited from withdrawing any bid after close of the round in which that bid was placed. Bidders are cautioned to select bid amounts carefully because no bid withdrawals will be allowed, even if a bid was mistakenly or erroneously made.

82. Round Results. Reports reflecting bidders' identities for Auction 100 will be available before and during the auction. Thus, bidders will know in advance of Auction 100 the identities of the bidders against which they are bidding.

83. Bids placed during a round will not be made public until the conclusion of that round. After a round closes, reports will be compiled of all bids placed, current provisionally winning bids, new minimum acceptable bid amounts for the following round, whether the construction permit is FCC-held, and bidder eligibility status (bidding eligibility and activity rule waivers). These reports will be posted for public access.

84. Auction Announcements. The Commission will use auction announcements to report necessary information such as schedule changes. All auction announcements will be available by clicking a link in the FCC auction bidding system.

85. Shortly after bidding has ended, the Commission will issue a public notice declaring the auction closed, identifying the winning bidders, and establishing the deadlines for submitting down payments, final payments, and long-form applications.

86. Down Payments. As required by 47 CFR 1.2107(b), within 10 business days after release of the auction closing public notice, each winning bidder must submit sufficient funds (in addition to its upfront payment) to bring its total amount of money on deposit with the Commission for Auction 100 to 20% of the net amount of its winning bids (gross bids less any applicable new entrant bidding credit).

87. Final Payments. As required by 1.2109(a), each winning bidder will be required to submit the balance of the net amount for each of its winning bids within ten business days after the applicable deadline for submitting down payments.

88. Long-Form Applications. Section 73.5005(a) provides that within 30 days following the close of bidding and notification to winning bidders, unless a longer period is specified by public notice, winning bidders must electronically submit a properly completed long-form application (FCC Form 349, Application for Authority to Construct or Make Changes in an FM Translator or FM Booster Station) and required exhibits for each construction permit won through Auction 100.

89. As required by 47 CFR 1.1104, a winning bidder in a commercial broadcast spectrum auction must submit an application filing fee with its post-auction long-form application. When an application filing fee is due by Auction 100 winning bidders, the amount may be higher or lower than the $835 currently specified at 47 CFR 1.1104. See also 47 CFR 1.2107(c).

90. Further instructions on these and other filing requirements will be provided to winning bidders in the auction closing public notice. An Auction 100 applicant that has its long-form application dismissed will be deemed to have defaulted and will be subject to default payments under 47 CFR 1.2104(g) and 1.2107(c).

91. Default and Disqualification. Any winning bidder that defaults or is disqualified after the close of the auction ( i.e., fails to remit the required down payment by the specified deadline, fails to submit a timely long-form application, fails to make a full and timely final payment, or is otherwise disqualified) is liable for default payments as described in 47 CFR 1.2104(g)(2). This payment consists of a deficiency payment, equal to the difference between the amount of the Auction 100 bidder's winning bid and the amount of the winning bid the next time a construction permit covering the same spectrum is won in an auction, plus an additional payment equal to a percentage of the defaulter's bid or of the subsequent winning bid, whichever is less. The percentage of the applicable bid to be assessed as an additional payment for a default in Auction 100 is 20% of the applicable bid.

92. In the event of a default, the Commission has the discretion to re-auction the construction permit or offer it to the next highest bidder (in descending order) at its final bid amount. In addition, if a default or disqualification involves gross misconduct, misrepresentation, or bad faith by an applicant, the Commission may declare the applicant and its principals ineligible to bid in future auctions, and may take any other action that it deems necessary, including institution of proceedings to revoke any existing authorizations held by the applicant.

93. Refund of Remaining Upfront Balance. All refunds of upfront payment balances will be returned to the payer of record as identified on the Form 159 unless the payer submits written authorization instructing otherwise. This written authorization must comply with the refund instructions in the Auction 100 Procedures Public Notice .

94. Paperwork Reduction Act. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, nor does it contain any new or modified information 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).

95. Congressional Review Act. The Commission will send a copy of this Auction 100 Procedures Public Notice to Congress and the Government Accountability Office pursuant to the Congressional Review Act. See 5 U.S.C. 801(a)(1)(A).

96. Supplemental Final Regulatory Flexibility Act Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), 5 U.S.C. 601-612, the FCC prepared Initial Regulatory Flexibility Analyses (IRFAs) in connection with the Broadcast Competitive Bidding Notice of Proposed Rulemaking (NPRM) and other FCC NPRMs (collectively Competitive Bidding NPRMs) pursuant to which Auction 100 will be conducted. Final Regulatory Flexibility Analyses (FRFAs) likewise were prepared in the Broadcast Competitive Bidding Order and other FCC orders (collectively Broadcast Competitive Bidding Orders) pursuant to which Auction 100 will be conducted. In this proceeding, a Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) was incorporated in the Auction 100 Comment Public Notice, 83 FR 56031, Nov 9, 2018. The FCC sought written public comment on the proposals in the Auction 100 Comment Public Notice, including comments on the Supplemental IRFA. This Supplemental FRFA supplements the FRFAs in the Broadcast Competitive Bidding Orders to reflect the actions taken in the Auction 100 Procedures Public Notice and conforms to the RFA.

97. Need for, and Objectives of, the Public Notice. The procedures for the conduct of Auction 100 as described in the Auction 100 Procedures Public Notice implement the Commission's competitive bidding rules which have been adopted by the FCC in multiple notice-and-comment rulemaking proceedings. More specifically, the Auction 100 Procedures Public Notice provides an overview of the procedures, terms and conditions governing Auction 100 and the post-auction application and payment processes, as well as setting the minimum opening bid amount for each of the cross-service FM translator construction permits that are subject to being assigned by competitive bidding.

98. To promote the efficient and fair administration of the competitive bidding process for all Auction 100 participants, including small businesses, the Office of Economics and Analytics (OEA), in conjunction with the Media Bureau (MB), in the Auction 100 Procedures Public Notice announce the following procedures: (1) Use of a simultaneous multiple-round auction format, consisting of sequential bidding rounds with a simultaneous stopping procedure (with discretion by MB and OEA to exercise alternative stopping rules under certain circumstances); (2) a specific minimum opening bid amount for each construction permit available in Auction 100; (3) a specific number of bidding units for each construction permit; (4) establishment of a bidder's initial bidding eligibility in bidding units based on that bidder's upfront payment through assignment of a specific number of bidding units for each construction permit; (5) so that bidders must bid actively during the auction rather than waiting until late in the auction before participating, Auction 100 is a single stage auction in which a bidder is required to be active on 100% of its bidding eligibility in each round of the auction; (6) provision of three activity waivers for each qualified bidder to allow it to preserve bidding eligibility during the course of the auction; (7) use of minimum acceptable bid amounts and additional acceptable increments, along with a proposed methodology for calculating such amounts, with MB and OEA retaining discretion to change their methodology if circumstances dictate; (8) a procedure for breaking ties if identical high bid amounts are submitted on one permit in a given round; (9) a prohibition on bid withdrawals in Auction 100; and (10) establishment of an additional default payment of 20% under 47 CFR 1.2104(g)(2) in the event that a winning bidder defaults or is disqualified after the auction.

99. Summary of Significant Issues Raised by Public Comments in Response to the IRFA. There were no comments filed that specifically addressed the procedures and policies proposed in the Supplemental IFRA. In fact, no comments were filed in this proceeding after release of the Auction 100 Comment Public Notice .

100. Response to Comments by the Chief Counsel for Advocacy of the Small Business Administration. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the FCC is required to respond to any comment filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed procedures as a result of those comments, 5 U.S.C. 604(a)(3). The Chief Counsel did not file any comments in response to the procedures that were proposed in the Auction 100 Comment Public Notice. The FCC will send a copy of this Auction 100 Procedures Public Notice, including this Supplemental FRFA, to the Chief Counsel for Advocacy of the SBA pursuant to 5 U.S.C. 604(b).

101. Description and Estimate of the Number of Small Entities to Which the Proposed Procedures Will Apply. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term small entity as having the same meaning as the terms small business, small organization, and small governmental jurisdiction. In addition, the term small business has the same meaning as the term small business concern under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA, 15 U.S.C. 632.

102. Auction 100 is a closed auction; therefore, the specific competitive bidding procedures and minimum opening bid amounts described in the Auction 100 Procedures Public Notice will affect at a maximum only the 23 individuals or entities listed in Attachment A of the Auction 100 Procedures Public Notice and who are the only parties eligible to complete the remaining steps to become qualified to bid in Auction 100. These specific 23 individuals or entities listed in Attachment A include firms of all sizes.

103. Radio Stations. This Economic Census category comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has established a small business size standard for this category as firms having $38.5 million or less in annual receipts. Economic Census data for 2012 shows that 2,849 radio station firms operated during that year. Of that number, 2,806 firms operated with annual receipts of less than $25 million per year, 17 with annual receipts between $25 million and $49,999,999 and 26 with annual receipts of $50 million or more. Therefore, based on the SBA's size standard the majority of such entities are small entities.

104. According to Commission staff review of the BIA/Kelsey, LLC's Media Access Pro Radio Database as of September 6, 2018, about 11,024 (or about 99.92%) of 11,033 commercial radio stations had revenues of $38.5 million or less and thus qualify as small entities under the SBA definition. The SBA size standard data does not enable MB and OEA to make a meaningful estimate of the number of small entities who may participate in Auction 100. There are a maximum of 23 individuals or entities that may become qualified bidders in Auction 100, in which applicant eligibility is closed. The specific procedures and minimum opening bid amounts announced in the Auction 100 Procedures Public Notice will affect directly all applicants participating in Auction 100.

105. MB and OEA are unable to accurately develop an estimate of how many of these 23 individuals or entities are small businesses based on the number of small entities that applied to participate in prior broadcast auctions, because that information is not collected from applicants for broadcast auctions in which bidding credits are not based on an applicant's size (as is the case in auctions for wireless service licenses). Due to the eligibility criteria established by the FCC, potential bidders in Auction 100 may include only existing holders of broadcast station construction permits or licenses. In 2013, the FCC estimated that 97% of radio broadcasters met the SBA's prior definition of small business concern, based on annual revenues of $7 million. The SBA has since increased that revenue threshold to $38.5 million, which suggests that an even greater percentage of radio broadcasters would fall within the SBA's definition. Based on FCC staff review of the BIA/Kelsey, LLC's Media Access Pro Radio Database, 4,626 (99.94%) of 4,629 a.m. radio stations have revenue of $38.5 million or less. Accordingly, based on this data, MB and OEA conclude that the majority of Auction 100 bidders will likely meet the SBA's definition of a small business concern.

106. In assessing whether a business entity qualifies as small under the SBA definition, business control affiliations must be included. This estimate therefore likely overstates the number of small entities that might be affected by Auction 100 because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. Moreover, the definition of small business also requires that an entity not be dominant in its field of operation and that the entity be independently owned and operated. The estimate of small businesses to which Auction 100 competitive bidding requirements may apply does not exclude any radio station from the definition of a small business on these bases and is therefore over-inclusive to that extent. Furthermore, it is not possible at this time to define or quantify the criteria that would establish whether a specific radio station is dominant in its field of operation. In addition, given the difficulty in assessing these criteria in the context of media entities, these estimates of small businesses to which they apply may be over-inclusive.

107. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities. As articulated in a 1994 rulemaking order, the FCC designed the auction application process itself to minimize reporting and compliance requirements for applicants, including small business applicants. For all spectrum auctions, in the first part of the Commission's two-phased auction application process, parties desiring to participate in an auction file streamlined short-form applications in which they certify under penalty of perjury as to their qualifications. Eligibility to participate in bidding is based on an applicant's short-form application and certifications, as well as its upfront payment.

108. To become qualified to bid in Auction 100, applicants, including small entities, must submit a Form 175 that is timely and is found to be substantially complete and submit an upfront payment that is timely and sufficient for at least one of the construction permits for which it is designated as an applicant on the Public Notice's Attachment A. The submission of the upfront payment must comply with the instructions provided in the public notice. As established by the Commission in a 1994 rulemaking order and in accordance with the terms of 47 CFR 1.2105(b)(2), an applicant whose application is found to contain deficiencies will have a limited opportunity to bring its application into compliance with the Commission's competitive bidding rules during a resubmission window. As required by 47 CFR 1.65 and 1.2105(b), each Auction 100 applicant must maintain the accuracy of its previously filed Form 175. As required by 47 CFR 1.1111, each upfront payment must be accompanied by a Form 159.

109. In the second phase of the process, there are additional compliance requirements only applicable to winning bidders. As with other winning bidders, any small entity that is a winning bidder will be required to comply with the terms of: (1) 47 CFR 1.2107(b) by submitting as a down payment within 10 business days after release of the auction closing public notice sufficient funds (in addition to its upfront payment) to bring its total amount of money on deposit with the FCC for Auction 100 to 20% of the net amount of its winning bid(s), a requirement adopted by the FCC in a 1994 rulemaking order; (2) 47 CFR 1.2109(a) by submitting within 10 business days after the down payment deadline the balance of the net amount for each of its winning bids, a requirement adopted by the FCC in a 1994 rulemaking order; and (3) 47 CFR 73.5005(a) by filing electronically within 30 days following release of the closing public notice, unless a longer period is specified by public notice, a properly completed long-form application and required exhibits for each construction permit won through Auction 100, a requirement adopted by the FCC for broadcast auction winning bidders in a 1998 rulemaking order.

110. As required by 47 CFR 1.2105(c), reports concerning a prohibited communication must be filed with the Chief of the Auctions Division, as detailed in the Auction 100 Procedures Public Notice .

111. Steps Taken to Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities. See 5 U.S.C. 603(c)(1)-(4).

112. MB and OEA anticipate that the steps taken to make numerous resources available to small entities and other auction participants at no cost should minimize any economic impact of the auction processes and procedures on small entities and should result in both operational and administrative cost savings for small entities and other auction participants. For example, prior to the beginning of bidding in Auction 100, the FCC will hold a mock auction to allow eligible bidders the opportunity to familiarize themselves with both the processes and systems that will be utilized in Auction 100. During the auction, participants will be able to access and participate in bidding via the internet using a web-based system, or telephonically, providing two cost effective methods of participation and avoiding the cost of travel for in-person participation. Further, small entities as well as other auction participants will be able to avail themselves of a telephonic hotline for assistance with auction processes and procedures as well as a technical support hotline to assist with issues such as access to or navigation within the electronic Form 175 and use of the FCC's auction bidding system. In addition, all auction participants, including small business entities, will have access to various other sources of information and databases through the Commission that will aid in both their understanding and participation in the process. These resources, coupled with the description and communication of the bidding procedures before bidding begins in Auction 100, should ensure that the auction will be administered predictably, efficiently and fairly, thus providing certainty for small entities as well as other auction participants.

This is a summary of the Commission's Report and Order, FCC 19-52, adopted on June 6, 2019 and released on June 7, 2019. The full text is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, Room CY-A257, Washington, DC 20554. This document will also be available via ECFS at http://fjallfoss.fcc.gov/ecfs/. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to fcc504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. In the Report and Order, we update our leased access rules as part of the Commission's Modernization of Media Regulation Initiative. The leased access rules, which implement the statutory leased access requirements, direct cable operators to set aside channel capacity for commercial use by unaffiliated video programmers. 1 In 2018, the Commission adopted a Further Notice of Proposed Rulemaking (FNPRM) addressing leased access proposals filed in response to the Media Modernization Public Notice. With this proceeding, we continue our efforts to modernize media regulations and remove unnecessary requirements that can impede competition and innovation in the media marketplace.

2. The video marketplace has changed significantly since the Commission initially adopted its leased access rules. Specifically, today a wide variety of media platforms are available to programmers, including in particular online platforms that creators can use to distribute their content for free. This change has reduced the importance of leased access and, thus, the justification for burdensome leased access requirements.

3. Below, first we adopt the FNPRM's tentative conclusion that we should vacate the Commission's 2008 Leased Access Order. 2 That order never went into effect due to a stay by the U.S. Court of Appeals for the Sixth Circuit (Sixth Circuit) and the Office of Management and Budget (OMB) issuance of a notice of disapproval of the associated information collection requirements. Second, we adopt certain updates and improvements to our existing leased access rules.

4. Vacating the 2008 Leased Access Order. We adopt the FNPRM's tentative conclusion that we should vacate the 2008 Leased Access Order, including the Further Notice of Proposed Rulemaking issued in conjunction with that order. We conclude that this approach, which cable operators support, is consistent with our public interest objectives and is the most practical and legally tenable option available to us. Specifically, vacating the prior order will clarify the status of our leased access regime, further the Commission's media modernization efforts, and obviate the need to address the significant legal concerns raised in the related Sixth Circuit proceeding and OMB Notice. 3

5. By vacating the 2008 Leased Access Order, we are resolving the longstanding challenges to the order that have been pending for more than a decade due to the stay of this order. 4 Vacating the 2008 Leased Access Order will not have any impact on any party's compliance with or expectations concerning the leased access requirements, because the rule changes contained in that order never went into effect. 5 Accordingly, as a result of our decision today, except for the rule changes set forth below, parties simply will remain subject to the same leased access rules they were operating under prior to 2008.

6. Vacating the 2008 Leased Access Order is consistent with the Commission's media modernization efforts, pursuant to which we seek to remove rules that are outdated or no longer justified by market realities. As commenters point out, implementing the 2008 Leased Access Order would have made leased access significantly more burdensome for cable operators, which would be contrary to the highly competitive marketplace in existence today. For example, NCTA explains that implementing the 2008 order “would have changed the formula for establishing the maximum permissible rate for leased access in a manner that would have resulted in rates approaching zero.” We agree with commenters that in today's marketplace the appropriate course is to ease, rather than increase, regulatory burdens associated with leased access and that the Commission should not have leased access regulations where the maximum allowable rates approach zero. Indeed, as discussed below, today we find that certain rule changes are needed to provide cable operators with relief from their existing leased access burdens because the burdens are no longer justified in today's marketplace, given the increased distribution alternatives for leased access programmers. While we recognize that some leased access programmers have expressed a preference for leased access via cable as compared to alternatives such as online programming distribution, we are persuaded that these alternatives have developed into a viable substitute for leased access today. In addition, we note that easing the regulatory burdens associated with leased access will effectuate the statutory requirement to implement rules “in a manner consistent with the growth and development of cable systems.”

7. We disagree with commenters claiming that the Commission should “adopt the parts [of the 2008 Leased Access Order ] that are not subject to OMB or Sixth Circuit . . . scrutiny and either staff review or issue a FNPRM to address the issues of concern to the OMB and the Appeals Court.”  6 The FNPRM sought comment on whether there is “any policy justification for retaining any particular rules adopted” in the 2008 Leased Access Order. Commenters advocating the retention of all portions of the 2008 Leased Access Order “that are not subject to OMB or Sixth Circuit . . . scrutiny” do not explain with sufficient specificity which rules from the 2008 Leased Access Order should go into effect and why they are justified today. We believe that vacating the entire order and proceeding anew is preferable to commenters' suggested piecemeal approach.

8. Modifying the Leased Access Rules. We next adopt certain updates and improvements to our existing leased access rules. It is our goal to modernize our leased access regulations given the significant changes in the video marketplace, including specifically the availability of online media platforms. We stated in the FNPRM that this proceeding would “advance our efforts to modernize our media regulations and remove unnecessary requirements that can impede competition and innovation in the media marketplace.” We find that the benefits of updating our leased access rules to reflect the current video marketplace outweigh the anticipated costs.

9. Part-Time Leased Access. We eliminate the requirement that cable operators make leased access available on a part-time basis. Instead, our leased access rules will apply only to leased access programmers that purchase channel capacity on a full-time basis  7 for at least a one-year contract term. The Commission's rules currently direct “[c]able operators that have not satisfied their statutory leased access requirements [to] accommodate part-time leased access requests,” but there is no statutory requirement for part-time leased access. And, contrary to SBN's suggestion “that part-time access is the `genuine outlet' Congress sought to promote with the leased access statute,” the legislative history does not mention part-time leased access. Further, we are persuaded by comments that because part-time leased access is regulatory, and not statutory, we should seek to avoid unnecessary burdens in light of possible First Amendment concerns. 8 In response to the FNPRM's request for further comment on this topic, 9 cable operators support elimination of the part-time leased access requirement.

10. We find that eliminating part-time leased access is consistent with marketplace changes. Since the Commission adopted the rule governing part-time leased access in 1993, the available platforms to distribute programming have multiplied, including in particular internet options. At the same time, the part-time leased access requirement has continued to apply to cable operators, and the record indicates that those operators do not usually generate enough revenue from part-time leased access programming to cover the administrative costs of providing such programming. 10 Even in the 1997 Leased Access Order, the Commission “recognize[d] that part-time leasing is not expressly required by the statute, that it may impose additional administrative and other costs on cable operators, and that it may pose the risk of capacity being under-used.” Unlike in 1997, when the Commission affirmed its rule requiring cable operators to lease time in 30-minute increments, however, our decision today reflects the fact that the internet has developed into a flourishing means of distribution for short-form programming. SBN claims that the focus of leased access should be providing diverse information sources to cable subscribers. Eliminating part-time leased access, however, will not prevent leased access programmers from reaching all households with internet access, including the households of cable subscribers. We find that the costs of mandating part-time leased access to provide programming to the small portion of the population without internet access but with cable television outweighs the benefits. While we recognize the interest of leased access programmers in maintaining part-time leased access, 11 we are persuaded that the costs to cable providers associated with accommodating part-time leased access outweigh any countervailing benefits, especially given the plethora of alternative distribution options for such programming and the applicable First Amendment concerns. 12 To the extent that any cable operator wishes to carry programming on a part-time basis, it may negotiate such carriage as a private contractual matter, outside the scope of the leased access statute.

11. Because leased access will only occur on a full-time basis going forward, we delete section 76.970(h) of our rules, which currently addresses the maximum commercial leased access rate for part-time channel placement. Current § 76.970(i) and (j) will be redesignated as § 76.970(h) and (i). We also delete the reference to part-time leased access rates in current section 76.970(i)(1)(ii) (redesignated section 76.970(h)(1)(ii)), and we delete section 76.971(a)(4), which sets forth the current requirements for accommodating part-time leased access. 13

12. Bona Fide Requests. We adopt the proposal set out in the FNPRM to ease burdens on cable operators by revising section 76.970(i) of our rules to provide that all cable operators, and not just those that qualify as “small systems”  14 under that rule, are required to respond to a request for leased access information only if the request is bona fide. Larger cable systems currently must respond to all written leased access requests, which can be inefficient, difficult, and costly. We also make one change to our existing definition of a “bona fide request” for information, which currently is defined as a request from a potential leased access programmer that includes: “(i) The desired length of a contract term; (ii) The time slot desired; (iii) The anticipated commencement date for carriage; and (iv) The nature of the programming.” Specifically, we delete the second criteria (the time slot desired), because as explained above we eliminate part-time leased access and time slot thus will be irrelevant for programming that occupies a channel on a full-time basis. As proposed in the FNPRM, the criteria for a bona fide request must be met before a cable system will be required to provide the information specified in section 76.970(i)(1).

13. Adoption of this bona fide request provision will expand relief afforded small systems to all cable operators. 15 Section 76.970(i)(1) currently directs cable operators to provide prospective leased access programmers with the following information: “(i) How much of the operator's leased access set-aside capacity is available; (ii) A complete schedule of the operator's full-time and part-time leased access rates; (iii) Rates associated with technical and studio costs; and (iv) If specifically requested, a sample leased access contract.” Even with the other modifications to section 76.970(i) that we adopt below, we are persuaded that, absent this change to our rules, some operators of systems that do not qualify as “small” would continue to spend a significant amount of time responding to non-bona fide leased access inquiries.

14. We recognize that this is a change from the Commission's previous decision to limit the flexibility to respond only to bona fide requests to small cable operators. However, based on the record evidence that both small and large cable operators face significant burdens in responding to leased access requests, we find that there is no longer a reason to limit this flexibility to small cable operators. We further conclude that it does not serve the public interest to require cable operators to continue responding to requests that are not considered bona fide under our rules. We see no evidence that cable operators will use the bona fide request requirement to discourage leasing access, whereas there is clear evidence that cable operators currently are required to undertake the expense of responding to all requests for leased access information even though most such requests do not result in a leased access programming contract. 16 We recognize that some commenters claim that it is difficult for potential leased access programmers to provide the information required for a bona fide leased access request. We find, however, that providing this very basic information is necessary to demonstrate that a leased access programmer is serious about its inquiry. We believe it is reasonable to expect basic information such as the desired contract term, anticipated start date, and nature of programing to be developed prior to submitting a leased access request. To the extent that the responsive information from the cable operator presents a concern for the programmer, for example regarding the rate schedule, nothing in this change would prevent the programmer from further modifying its request and continuing to negotiate with the cable operator on the terms of an agreement.

15. Contrary to the suggestion of NCTA, we will not permit cable operators to seek further information from potential leased access programmers before responding to a leased access request, such as: (1) How the potential leased access programmer would deliver its programming to the cable system; and (2) an affidavit identifying all of the programmer's owners and declaring that all are in compliance with applicable trade sanctions. We must balance between the competing interests of potential leased access programmers who should be able to obtain basic information that will enable them to determine whether they wish to proceed with a leased access programming contract, and cable operators who should not be required to incur costs in providing information to a programmer that is not seriously committed to securing a leased access contract. We find that the approach we adopt herein strikes an appropriate balance, but we will continue monitoring the marketplace to determine whether any further modifications are needed in the future. 17

16. Timeframe for Responding to Requests. To ease burdens on cable operators, we extend the timeframe within which they must provide prospective leased access programmers with the information specified in section 76.970(i)(1) of our rules, from 15 calendar days to 30 calendar days for cable operators generally, and from 30 calendar days to 45 calendar days for operators of systems subject to small system relief. These timeframes apply only to bona fide requests for information pursuant to section 76.970(i), and not to simple requests for contact information.

17. The record demonstrates that cable operators, especially those with multiple systems, would benefit from having additional time to gather the information specified in section 76.970(i)(1), as is required in response to a request for leased access information. First, section 76.970(i)(1)(i) currently requires the provision of “[h]ow much of the operator's leased access set-aside capacity is available.” Although as explained above we clarify that cable operators may comply with that requirement by confirming whether there is sufficient capacity for the prospective leased access programmer, operators still will need to analyze current system capacity to make that determination, given that as ACA states capacity is constantly changing “as cable operators add and drop channels, and repurpose system bandwidth from video to broadband services.”

18. Second, section 76.970(i)(1)(ii) requires the provision of “[a] complete schedule of the operator's full-time and part-time leased access rates.” ACA explains that, because the rate formula utilizes data points that are constantly changing, a cable operator must complete this calculation anew in response to every leased access request for information. ACA further claims the cost of determining the rates can be one thousand dollars or more per request. Third, section 76.970(i)(1)(iii) requires the provision of “[r]ates associated with technical and studio costs.” ACA explains that cable operators may not have standardized technical and studio costs, because these costs must be calculated based on the specific types of services the programmer seeks. Finally, section 76.970(i)(1)(iv) requires, if specifically requested, the provision of “a sample leased access contract.” While some cable operators may have a contract readily available, the record indicates that others may only have an out-of-date contract in their files. For all of these reasons, we find that the current deadlines for providing the information required in response to leased access requests for information are insufficient. 18 Our new requirement that all cable operators need only provide the listed information in response to a bona fide request does not alter this analysis, because it may not make it any easier to provide the required information; rather, it could lead to less frequent provision of the information since cable operators will not need to provide it if a request is not bona fide. 19 We see no indication in the record that increasing the timeframe within which cable operators must provide the required information will prejudice programmers seeking to lease access. Rather, programmers seeking to lease access can simply take the longer timeframe into account in deciding when to submit a bona fide request.

19. We extend each deadline by 15 calendar days, such that the general deadline will be 30 days, and the small system deadline will be 45 days. Although NCTA seeks a 45-day response period for all cable operators, we think that tripling the current deadline is excessive. Rather, we find it appropriate to extend each deadline by 15 calendar days, thus maintaining the longer deadline for small cable systems that may lack the resources to gather information as quickly as larger systems. Although one commenter posits that lengthening the deadline could deter potential leased access programmers from seeking access, particularly if their programming is time-sensitive, we see no evidence supporting this concern.

20. Application Fees and Deposits. As proposed by NCTA and supported by others, we permit cable operators to impose a maximum leased access application fee of $100 per system-specific bona fide request, 20 and we deem as reasonable under the Commission's rules a security deposit or prepayment requirement equivalent to up to 60 days of the applicable lease fee. 21 We agree with commenters that application fees and deposits are justified to help reimburse cable operators for their leased access costs, 22 to discourage frivolous leased access requests, and to reimburse cable operators for situations in which a leased access programmer only leases access for a brief time before the arrangement is terminated due to non-payment. 23 We acknowledge leased access programmers' concerns that any application fee or deposit could dissuade potential leased access programmers, particularly small entities, from seeking to lease access. Accordingly, rather than permitting “nominal” application fees and deposits as proposed in the FNPRM, we establish maximum application fees and deposits at levels that we do not expect will be unduly burdensome for leased access programmers. 24 Cable operators may require leased access programmers to pay any application fee before the cable operator provides the information set forth in section 76.970(i)(1) in response to a leased access request, 25 whereas a deposit may be assessed as part of the execution of a leased access agreement.

21. We revise section 76.970(i)(1) of our rules to provide that cable operators are required to provide leased access programmers with the information set forth in that section only if the programmer has remitted any application fee that the cable system operator requires up to a maximum of $100 per system-specific bona fide leased access request for information. The maximum leased access application fee applies to an entire system-specific bona fide request, as defined above. If a programmer amends such a request, the cable operator cannot use the amendment as an opportunity to assess a second application fee. We recognize that permitting a leased access application fee is a departure from past Commission practice. That past practice was based on an expectation that cable operators would be sufficiently protected by the “bona fide” request requirement that then applied only to small cable operators, but as NCTA states, “experience has shown that even bona fide applicants may opt to walk away without signing [an] agreement” which “can leave cable operators with unreimbursed costs”  26 which we do not believe Congress intended cable operators to absorb.

22. Section 76.971(d) of our rules already permits cable operators to “require reasonable security deposits or other assurances from users who are unable to prepay in full for access to leased commercial channels.” We hereby deem as reasonable under the Commission's rules a security deposit or prepayment equivalent to up to 60 days of the applicable lease fee, and we agree with NCTA that 60 days is a reasonable timeframe to enable cable operators to protect themselves against lessees that fail to pay after launching. This approach will address concerns that the current case-by-case determination of what constitutes a “reasonable” deposit leads to marketplace uncertainty. A cable operator may choose to assess either a security deposit or prepayment that exceeds 60 days of the applicable lease fee, but such an assessment would remain subject to the current case-by-case review process if the programmer asserts that it is not reasonable. While one leased access programmer advocates a maximum deposit equivalent to the cost of a single day of airtime, we find that such an amount would be insufficient to protect cable operators from a leased access programmer that ceases paying for access prior to the completion of its agreement's term, which will now be a minimum of one year. Because a deposit is assessed as part of the execution of a leased access agreement, it will either be applied to payments due under the agreement, or it will be retained by the cable operator to compensate it for the leased access programmer's failure to remit payments required by the agreement. We see no reason to modify the existing requirement of section 76.971(d) that reasonable security deposits are permitted only if the leased access user does not prepay in full because if the leased access user prepays in full, the cable operator does not need protection against nonpayment.

23. We reject requests by cable operators to impose additional new financial requirements on leased access programmers aside from application fees and deposits. Specifically, ACA proposes that the Commission permit cable operators to assess a “closing fee” upon finalization of a leased access agreement. We find that giving cable operators this flexibility is not necessary because it is intended to address the same cable operator concerns as the application fee and security deposit. NCTA proposes that cable operators “should be permitted to require an acknowledgement in the application that certain ordinary commercial protections will apply, including that a lessee must provide proof of insurance . . . and pass a credit check prior to entering into a lease.” In addition, NCTA requests that the rules “provide that if a leased access user has previously been dropped for non-payment, an operator can refuse to enter into a leasing agreement with that entity or its principals in the future.” We note that our rules already permit cable operators to “impose reasonable insurance requirements on leased access programmers,” and we decline to adopt further protections for cable operators against non-payment by leased access programmers given the expected sufficiency of the application fees and deposits that we authorize today.

24. Contact Information. We adopt a requirement that cable operators provide potential leased access programmers with contact information for the person responsible for leased access matters. Multiple commenters support a leased access contact information requirement, and none oppose it. We provide flexibility for cable operators in complying with this requirement by permitting them to disclose on their own websites, or through alternate means if they do not have their own websites, 27 basic contact information including the name or title, telephone number, and email address for the person responsible for responding to requests for information about leased access channels. This information is necessary for potential leased access programmers to initiate productive contact with cable systems, which is vital to the leased access process, and our approach is consistent with the contact information requirements the Commission has adopted in other contexts. We provide further flexibility by requiring cable operators to provide either a contact person's name or title. 28 This approach eliminates the need to update the website due to personnel changes, and it is permissible so long as the provided telephone number and email address reach the appropriate person. However, a cable operator provides the required contact information, it should be reasonably identifiable, though it need not appear on a cable operator's main web page. 29

25. Dispute Procedures. As proposed in the FNPRM, we adopt common-sense modifications to the procedures for leased access disputes, which no commenter opposed. These modifications resolve inconsistencies between the leased access dispute resolution rule (section 76.975) and the Commission's more general rule governing complaints (section 76.7). First, we adopt the proposal to revise the terminology in section 76.975 by referencing an answer to a petition, rather than a response to a petition. Second, we adopt the proposal to modify section 76.975 by calculating the 30-day timeframe for filing an answer to a leased access petition from the date of service of the petition, rather than from the date on which the petition was filed. Third, whereas section 76.975 currently does not include any allowance for replies, we adopt the proposal to add a provision stating that replies to answers must be filed within 15 days after submission of the answer. 30 Fourth, we adopt the proposal to add to section 76.975 a statement that section 76.7 applies to petitions for relief filed under section 76.975, unless otherwise provided in section 76.975. We expect that these modifications will make dispute procedures clearer both for the parties to a leased access dispute and for the Commission. 31

26. Other Issues. Commenters put forth several additional proposals in response to the FNPRM, and we reject the proposals at this time as follows.

27. HD leased access. We will not require cable systems to carry leased access programming in high definition (HD). 32 Rather, HD carriage is at the discretion of the cable operator. This approach is consistent with the Act, which does not require cable systems to carry leased access programming in HD. Carrying leased access programming in HD expands the use of spectrum without increasing the volume of leased access programming distributed. Further, we note that cable operators negotiate to carry even some commercial programming in standard definition (SD).

28. Insurance requirements. We decline to adopt new limits on the insurance requirements that cable operators may impose on leased access programmers. We find that this proposal is inconsistent with the Cable Services Bureau's prior conclusion that a cable operator has the “right to require reasonable liability insurance coverage for leased access programming.” We are not persuaded that this conclusion was in error, and leased access programmers have provided no compelling evidence that the Commission should adopt limits on the reasonable insurance requirements that cable operators may impose on leased access programmers, including limits on naming cable affiliates as additional insureds. 33

29. Limited carriage areas. We will not prohibit cable operators from refusing to carry leased access programmers on only a portion of the operator's system, even if the programmer is willing to pay the reasonable cost of a modulator or other piece of equipment that would be needed to limit the carriage area. 34 Rather, consistent with past practice, we will continue evaluating any programmer complaints regarding cable operator denials of leased access carriage on a case-by-case basis. We agree with Charter that the Act “does not require that leased access be accommodated in this piece-meal fashion.” Customers depend on a consistent channel lineup in a given geographic area, and cable operators should not be required to reconfigure their systems to make leased access programming available only on a portion of the system. Indeed, if the Commission permitted every leased access programmer to provide a modulator and request a custom service area, the ensuing technical and operational burdens on cable operators easily could become unmanageable.

30. Disclosure requirements. We decline to modify the information that cable system operators must provide prospective leased access programmers, as set forth in section 76.970(i)(1) of our rules, except for the elimination of the reference to part-time rates discussed above. ACA proposes that we could ease burdens on cable operators by: (1) Permitting them to provide ACA's proposed safe harbor rates, or a rate estimate, rather than a complete rate schedule; (2) eliminating the requirement that they provide rates associated with technical and studio costs; and (3) eliminating the requirement that they provide sample contracts, or permitting them to provide term sheets instead of sample contracts. We find that a leased access programmer may need to review the rate schedule, technical and studio costs, and a sample contract before deciding whether to proceed in leasing access under our current rules. We therefore decline to adopt ACA's proposals at this time. 35

31. Other proposals. We note that commenters responding to the FNPRM raised several additional proposals on a variety of topics, which are not fully developed in the record or are outside the scope of this proceeding. 36 We decline to address any of these proposals at this time because we find that it is preferable to monitor the impact of the rule changes we adopt today before deciding if any of these modifications are needed.

32. The First Amendment. The changes in the video marketplace described above call into question whether our leased access rules are consistent with the First Amendment. Specifically, while the leased access rules were originally justified as safeguarding competition and diversity in the face of cable operators' monopoly power, the growth in available platforms to distribute programming seems to have eroded this justification. We sought comment on this issue in the FNPRM. Some commenters argue that changes in the marketplace mean that strict scrutiny may be the appropriate standard of review for the leased access statute today. Some commenters further claim that even under intermediate scrutiny, which is the standard the D.C. Circuit applied when it upheld the leased access statute in 1996, marketplace changes would dictate a finding that the leased access regime is no longer consistent with the First Amendment. Because changes in the marketplace have dramatically increased diversity and competition in the video programming market, these commenters argue, the leased access rules are no longer necessary to further the government's interest in promoting these goals.

33. We agree that dramatic changes in technology and the marketplace for the distribution of programming cast substantial doubt on the constitutional foundation for our leased access rules. We recognize that we rejected similar constitutional arguments in the 2008 Leased Access Order, which we vacate today. Our analysis has changed because the facts have changed: as explained above, the growth in alternative outlets for programmers—particularly on the internet—has exploded in the decade since the adoption of the 2008 Leased Access Order. Given this proliferation of new distribution platforms, we now find that the First Amendment concerns raised by commenters provide additional reason to interpret the statutory obligations of section 612 in a manner that reduces burdens on the speech of cable operators. We do so here by, among other things, eliminating the Commission rule requiring that cable operators make leased access available on a part-time basis. While our rule changes are independently and sufficiently supported by the policy justifications above, we note that constitutional concerns rely on the same premise: that changes in the video marketplace have substantially weakened the justifications for leased access. 37

34. Procedural Matters. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to the Report and Order. In summary, the Report and Order updates the Commission's leased access rules as part of its Modernization of Media Regulation Initiative. First, we adopt the FNPRM's tentative conclusion that we should vacate the Commission's 2008 Leased Access Order. Second, we adopt certain updates and improvements to our existing leased access rules. The action is authorized pursuant to sections 4(i), 303, and 612 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303, and 532. The types of small entities that may be affected by the proposals contained in the FNPRM fall within the following categories: Cable Television Distribution Services, Cable Companies and Systems (Rate Regulation), Cable System Operators (Telecom Act Standard), Cable and Other Subscription Programming, Motion Picture and Video Production, and Motion Picture and Video Distribution. The projected reporting, recordkeeping, and other compliance requirements are: (1) Vacating the 2008 Leased Access Order, including the Further Notice of Proposed Rulemaking issued in conjunction with that order; (2) Eliminating the requirement that cable operators make leased access available on a part-time basis; (3) Adopting the proposal set out in the FNPRM to ease burdens on cable operators by revising § 76.970(i) of our rules to provide that all cable operators, and not just those that qualify as “small systems” under that rule, are required to respond to a request for leased access information only if the request is bona fide; (4) Easing burdens on cable operators by extending the timeframe within which they must provide prospective leased access programmers with the information specified in § 76.970(i)(1) of our rules, from 15 calendar days to 30 calendar days for cable operators generally, and from 30 calendar days to 45 calendar days for operators of systems subject to small system relief; (5) Permitting cable operators to impose a maximum leased access application fee of $100 per system-specific bona fide request, and deeming as reasonable under the Commission's rules a security deposit or prepayment requirement equivalent to up to 60 days of the applicable lease fee; (6) Adopting a requirement that cable operators provide potential leased access programmers with contact information for the person responsible for leased access matters; and (7) Adopting common-sense modifications to the procedures for leased access disputes, which no commenter opposed. Finally, commenters put forth several additional proposals in response to the FNPRM, and we reject the proposals at this time. The SBA did not file comments. Many of the actions taken in the Report and Order will ease burdens, including economic burdens, on cable operators of all sizes. The changes in the Report and Order that ease burdens on cable operators, such as the elimination of part-time leased access, may also impact leased access programmers, including small programmers. We find that the marketplace changes discussed above, including in particular the availability of online platforms for these small programmers to distribute their content, justify this approach. The Report and Order considered alternatives to take into account the impact on small entities as follows: (1) The Report and Order concludes that eliminating part-time leased access entirely is a preferable approach to the alternative of establishing a set minimum amount of leased access programming, given the alternative means of distribution available to programmers today and the costs that part-time leased access imposes on cable operators. (2) While we consider one commenter's alternative proposal of a 45-day response period for all cable operators, we conclude that tripling the current deadline is excessive.

35. The Report and Order contains new or revised information collection requirements, as reflected in the Final Rules, §§ 76.970(h) and 76.975(e). The Commission, as part of its continuing effort to reduce paperwork burdens, will invite the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501-3520). In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

36. The Commission will send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

37. Ordering Clauses. Accordingly, it is ordered that, pursuant to the authority found in sections 4(i), 303, and 612 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303, and 532, this Report and Order is hereby adopted.

38. It is further ordered that part 76 of the Commission's rules, 47 CFR part 76, is amended as set forth below, and such rule amendments shall be effective thirty (30) days after the date of publication in the Federal Register , except for §§ 76.970(h) and 76.975(e) that contain new or modified information collection requirements, which shall become effective after the Commission publishes a notice in the Federal Register announcing OMB approval and the relevant effective date.

39. It is further ordered that the Commission's Report and Order and Further Notice of Proposed Rulemaking in the Leased Commercial Access proceeding, MB Docket No. 07-42, FCC 07-208, is hereby vacated.

40. It is further ordered that the March 28, 2008 Request of National Cable & Telecommunications Association for a Stay, MB Docket No. 07-42, is dismissed as moot.

41. It is further ordered that the March 31, 2008 TVC Broadcasting LLC Petition for Reconsideration, MB Docket No. 07-42, is dismissed as moot.

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

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 76 as follows:

Migratory birds are protected under four bilateral migratory bird treaties the United States entered into with Great Britain (for Canada in 1916, as amended in 1999), the United Mexican States (1936, as amended in 1972 and 1999), Japan (1972, as amended in 1974), and the Soviet Union (1978). Regulations allowing the take of migratory birds are authorized by the Migratory Bird Treaty Act (Act; 16 U.S.C. 703-712), which implements the above-mentioned treaties. The Act provides that, subject to and to carry out the purposes of the treaties, the Secretary of the Interior is authorized and directed to determine when, to what extent, and by what means allowing hunting, killing, and other forms of taking of migratory birds, their nests, and eggs is compatible with the conventions. The Act requires the Secretary to implement a determination by adopting regulations permitting and governing those activities.

Canada geese are federally protected by the Act because they are listed as migratory birds in all four treaties. Because Canada geese are covered by all four treaties, regulations must meet the requirements of the most restrictive of the four. For Canada geese, this is the treaty with Canada. All regulations concerning resident Canada geese are compatible with its terms, with particular reference to Articles II, V, and VII.

Each treaty not only permits sport hunting, but permits the take of migratory birds for other reasons, including scientific, educational, propagative, or other specific purposes consistent with the conservation principles of the various Conventions. More specifically, Article VII, Article II (paragraph 3), and Article V of “The Protocol Between the Government of the United States of America and the Government of Canada Amending the 1916 Convention between the United Kingdom and the United States of America for the Protection of Migratory Birds in Canada and the United States” provides specific limitations on allowing the take of migratory birds for reasons other than sport hunting. Article VII authorizes permitting the take, kill, etc., of migratory birds that, under extraordinary conditions, become seriously injurious to agricultural or other interests. Article V relates to the taking of nests and eggs, and Article II, paragraph 3, states that, in order to ensure the long-term conservation of migratory birds, migratory bird populations shall be managed in accord with listed conservation principles.

The other treaties are less restrictive. The treaties with both Japan (Article III, paragraph 1, subparagraph (b)) and the Soviet Union (Article II, paragraph 1, subparagraph (d)) provide specific exceptions to migratory bird take prohibitions for the purpose of protecting persons and property. The treaty with Mexico requires, with regard to migratory game birds, only that there be a “closed season” on hunting and that hunting be limited to 4 months in each year. Regulations governing the issuance of permits to take, capture, kill, possess, and transport migratory birds are promulgated at title 50 of the Code of Federal Regulations (CFR), parts 13, 21 and 22, and are issued by the Service. The Service annually promulgates regulations governing the take, possession, and transportation of migratory game birds under sport hunting seasons at 50 CFR part 20. Regulations regarding all other take of migratory birds (except for eagles) are published at 50 CFR part 21, and typically are not changed annually.

In November 2005, the Service published a final environmental impact statement (FEIS) on management of resident Canada geese that documented resident Canada goose population levels “that are increasingly coming into conflict with people and causing personal and public property damage” (see the FEIS' notice of availability at 70 FR 69985; November 18, 2005).

On August 10, 2006, we published in the Federal Register (71 FR 45964) a final rule establishing regulations at 50 CFR parts 20 and 21 authorizing State wildlife agencies, private landowners, and airports to conduct (or allow) indirect and/or direct population control management activities to reduce, manage, and control resident Canada goose populations in the continental United States and to reduce related damages. Those activities include depredation and control orders that allow destruction of resident Canada goose nests and eggs by authorized personnel between March 1 and June 30, because that timeframe encompassed the period when resident Canada geese typically nested. However, in recent years, some resident Canada geese have initiated nests in February, particularly in the southern United States, and it seems likely that in the future nest initiation dates will begin earlier and hatching of eggs will perhaps end later than dates currently experienced.

On April 25, 2018, we published in the Federal Register (83 FR 17987) a proposed rule to amend the special permit and depredation and control orders to allow destruction of resident Canada goose nests and eggs at any time of year, thereby affording State agencies, private landowners, and airports greater flexibility to use these methods of controlling local abundances of resident Canada geese. This final rule adopts the changes set forth in that proposed rule.

The current definition of resident Canada geese set forth at 50 CFR 20.11 and 21.3 states that “Canada geese that nest within the lower 48 States and the District of Columbia in the months of March, April, May, or June, or reside within the lower 48 States and the District of Columbia in the months of April, May, June, July, or August” are considered resident Canada geese. We are amending this definition by deleting the phrase, “in the months of March, April, May, or June,” following the first appearance of the word “Columbia,” to clarify that any Canada geese that nest within lower 48 States and the District of Columbia are resident Canada geese.

In title 50 of the CFR, destruction of resident Canada goose nests and eggs is currently authorized under special Canada goose permits (§ 21.26), a control order for airports and military airfields (§ 21.49), a depredation order specific to nests and eggs (§ 21.50), a depredation order for agricultural facilities (§ 21.51), and a public health control order (§ 21.52). Each of these regulations prescribes the dates during which nests and eggs of resident Canada goose may be destroyed. This rule removes those date restrictions and allows destruction of Canada goose nests and eggs, as otherwise authorized under these regulations, at any time of year.

This adjustment is based on several factors. First, nest and egg destruction has been an effective tool in reducing local conflicts and damages caused by resident Canada geese. Second, resident Canada geese are identified as such based on where, not when, they nest. Lastly, some Canada geese are already nesting in February in southern States, and it seems likely that nest initiation dates will also advance into February in mid-latitude and perhaps northern States in the future and hatching of nests may occur later than June 30.

On June 17, 1999, we published in the Federal Register (64 FR 32766) a final rule establishing 50 CFR 21.26, the special Canada goose permit. Special Canada goose permits may be issued to State wildlife agencies authorizing them to conduct certain resident Canada goose management and control activities that are normally prohibited. At that time, we indicated that States may conduct those control activities between March 11 and August 31, but that they should make a concerted effort to limit the take of adult birds to June, July, and August in order to minimize the potential impact on migrant populations. We imposed a date restriction of May 1 through August 31 in some areas in California, Oregon, and Washington inhabited by the threatened Aleutian Canada goose ( Branta canadensis leucopareia ) pursuant to the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq. ). The Aleutian Canada goose was listed as endangered in 1967 (32 FR 4001; March 11, 1967) and reclassified to threatened status in 1990 (55 FR 51106; December 12, 1990). Aleutian geese occur in a small numbers within these States, primarily San Joaquin Valley and Sacramento River Delta areas in central California, Humboldt Bay and Crescent City areas on the northern California coast, and Langlois and Pacific City areas on the Oregon coast. We indicated that if this subspecies is delisted, we would review this provision.

On March 20, 2001, we published in the Federal Register (66 FR 15643) a final rule to remove the Aleutian Canada goose from the Federal List of Endangered and Threatened Wildlife, due to recovery. Abundance of this population increased from 790 birds in 1975, to an estimated 156,030 in the winter of 2016. The Pacific Flyway Council's objective for this population is 60,000 geese. Currently, there is no special habitat or other threat that may reduce this population back to levels that may need protection under the ESA. Considering the current status of the Aleutian Canada goose, we are removing the May 1 restriction so that management and control activities may be conducted during the same period (March 11 through August 31) throughout all States.

We prepared an environmental assessment (EA) that analyzed two alternative courses of action to address these earlier nesting and later hatching dates and decrease local abundances of Canada geese that nest in the lower 48 States and the District of Columbia:

(1) Maintain the current date restrictions specified in regulations at 50 CFR 21.26, 21.49, 21.50, 21.51, and 21.52 on destruction of resident Canada goose nests and eggs, and make no change to the definition of resident Canada geese at 50 CFR 20.11 and 21.3 (No action); and

(2) Revise the definition of resident Canada geese at 50 CFR 20.11 and 21.3, and allow destruction of resident Canada goose nests and eggs at any time of year under 50 CFR 21.26, 21.49, 21.50, 21.51, and 21.52 (Proposed action).

The full EA can be found on our website at http://www.fws.gov/birds or at http://www.regulations.gov at Docket No. FWS-HQ-MB-2018-0012. We note that the amendment to § 21.26 in regard to accounting for the current status of the Aleutian Canada goose was not addressed in the EA, but is a categorically excluded action (43 CFR 46.210) addressed in an environmental action statement (EAS). The EAS can be found on our website at http://www.fws.gov/birds or at http://www.regulations.gov at Docket No. FWS-HQ-MB-2018-0012.

We accepted comments on our April 25, 2018, proposed rule (83 FR 17987) for 30 days, ending May 25, 2018. During the public comment period on the proposed rule, we received public comments from seven private individuals (two of which were not relevant to this rule) and one organization.

The National Wildlife Control Operators Association supported the proposed changes, but each of the private individuals opposed some aspect(s) of the rule. One individual stated that we should allow larger bag limits and more access to hunting locations instead of conducting direct control operations, while another commenter expressed opposition to capturing resident Canada geese on National Wildlife Refuges and then euthanizing them, because this reduces hunting opportunity. One commenter objected to the lethal control of a native species and urged the Service to expend its resources on invasive species and recovering endangered species instead, and two individuals expressed opposition to the killing of any animals.

Hunting harvest alone has not reduced resident Canada goose numbers enough to alleviate conflicts in some areas, despite long hunting seasons and large bag limits; also, the hunting season does not coincide with the time when many conflicts with geese, such as crop depredation, need to be addressed. Furthermore, many locales frequented by Canada geese are either closed to hunting for safety purposes ( e.g., airports, urban areas) or are privately owned, where access to hunters can only be granted by the property owner. Direct control measures such as nest and egg destruction and lethal removal are usually employed to alleviate local conflicts; thus, whether to conduct such measures is a local decision. The Service has a responsibility to reduce risks to public safety ( e.g., at airports) and prevent serious injuries to agricultural crops that are caused by resident Canada geese. We favor nonlethal control methods, but if those fail to resolve an identified conflict, we do allow lethal take. Therefore, this final rule does not make any changes in response to these comments to the actions we proposed on April 25, 2018 (83 FR 17987).

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We developed this rule in a manner consistent with these requirements.

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

SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. Thus, for a regulatory flexibility analysis to be required, impacts must exceed a threshold for “significant impact” and a threshold for a “substantial number of small entities.” See 5 U.S.C. 605(b).

The economic impacts of this rule will primarily affect State and local governments and the U.S. Department of Agriculture's Wildlife Services because of the structure of wildlife damage management. Data are not available to estimate the exact number of local governments that will be affected, but it is unlikely to be a substantial number nationally. Therefore, we certify that this rule will not have a significant economic impact on a substantial number of small entities.

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

This rule will not have an annual effect on the economy of $100 million or more. This rule will not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions. Finally, this rule will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the abilities of U.S.-based enterprises to compete with foreign-based enterprises.

This final rule is an Executive Order (E.O.) 13771 (82 FR 9339, February 3, 2017) deregulatory action because it relieves a restriction in 50 CFR parts 20 and 21.

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

a. This rule will not “significantly or uniquely” affect small government activities. A small government agency plan is not required.

b. This rule will not produce a Federal mandate on local or State government or private entities. Therefore, this action is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

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

This rule does not interfere with the States' abilities to manage themselves or their funds.

We do not expect any economic impacts to result from this regulations change. This rule will not have sufficient Federalism effects to warrant preparation of a federalism summary impact statement under E.O. 13132.

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

This rule does not contain new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). OMB has approved the information collection requirements associated with the control and management of resident Canada geese at 50 CFR part 20 and 50 CFR part 21, and assigned assigned OMB Control Number 1018-0133 (expires May 31, 2019, and in accordance with 5 CFR 1320.10, an agency may continue to conduct or sponsor this collection of information while the submission is pending at OMB). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

We have analyzed this rule in accordance with the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) and U.S. Department of the Interior regulations at 43 CFR part 46. We have completed an environmental assessment of the amendment of the depredation and control orders that allows destruction of resident Canada goose nests and eggs at any time of year; that environmental assessment is included in the docket for this rule (available at http://www.regulations.gov ; Docket No. FWS-HQ-MB-2018-0012). We conclude that our action will have the impacts listed below under “Environmental Consequences of the Action.” The amendment to § 21.26 in regard to accounting for the current status of the Aleutian Canada goose was not addressed in the EA, but is a NEPA categorically excluded action (43 CFR 46.210) addressed in an environmental action statement (EAS), which is also included in the docket for this rule (available at http://www.regulations.gov ; Docket No. FWS-HQ-MB-2018-0012).

Migrant Canada geese do not nest in the lower 48 States or the District of Columbia; thus, this action (amendments related only to depredation and control orders) is not expected to have any significant impacts on migrant Canada geese. All resident Canada goose population abundances are well above population objectives. Assuming that the number of resident Canada geese that initiate nests in January or February does not exceed the current number that initiate nests in March, we expect that this action will result in destruction of a maximum of 2,749 additional nests in January and February. We expect it is more likely that the action will shift some portion of the current resident Canada goose nest and egg destruction activities occurring in March to either January or February. All populations of resident Canada geese are expected to remain at or above population objective levels.

Socioeconomic. This action is expected to have positive impacts on the socioeconomic environment in localized urban and suburban areas where resident Canada geese are subjected to continued (annual) nest and egg destruction actions that gradually reduce goose numbers and resulting conflicts. It is also expected to reduce crop depredation at some localized agricultural sites where nest destruction can encourage geese to leave the site.

Endangered and threatened species. The rule will not affect endangered or threatened species or critical habitats.

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

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, we have evaluated potential effects on federally recognized Indian tribes and have determined that there are no potential effects. This rule will not interfere with the tribes' abilities to manage themselves or their funds or to regulate migratory bird activities on tribal lands.

E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not a significant regulatory action under E.O. 13211, and will not significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action. No Statement of Energy Effects is required.

For the reasons stated in the preamble, we hereby amend parts 20 and 21, of subchapter B, chapter I, title 50 of the Code of Federal Regulations, as set forth below: