On November 15, 2015, the staff submitted SECY-15-0149, “Role of Third-Party Arbitrators in Licensee Access Authorization and Fitness-for-Duty Determinations at Nuclear Power Plants” (ADAMS Accession No. ML16063A268). In this paper, the staff provided options to address and clarify the proper role of third parties in licensee access authorization and fitness-for-duty determinations. These options included the following: (1) Rulemaking to clarify that only licensees can make final access authorization or fitness-for-duty decisions; (2) development of a Commission policy statement that would clarify that only licensees can make final access authorization or fitness-for-duty decisions; or (3) maintaining the status quo. The staff recommended that the Commission authorize an expedited rulemaking.

In the staff requirements memorandum (SRM) for SECY-15-0149, “Staff Requirements—SECY-15-0149—Role of Third-Party Arbitrators in Licensee Access Authorization and Fitness-for-Duty Determinations at Nuclear Power Plants,” dated June 6, 2016 (ADAMS Accession No. ML16158A286), the Commission directed the staff to proceed with the normal rulemaking process, including the development of a regulatory basis. In addition to the staff's normal outreach efforts, the Commission directed the staff to make specific outreach to potentially affected labor organizations regarding the proposed content and timeframe for the proposed rule. The Commission further directed the staff to include in the proposed rule a robust appeal process for workers whose access authorization is denied or revoked and to address in the proposed rule third-party review of fitness-for-duty determinations.

When the staff identifies a rulemaking activity that can be discontinued, the staff submits to the Commission a request for approval to discontinue the rulemaking. The Commission provides its decision in a SRM. If the Commission approves discontinuing the rulemaking activity, the staff informs the public of the Commission's decision through the publication of a Federal Register notice.

A rulemaking activity may be discontinued at any stage in the rulemaking process. For a rulemaking activity that the public has commented on, the NRC will consider those comments before discontinuing the rulemaking activity; however, the NRC will not provide individual comment responses. For rulemaking activities that have generated significant public interest, the NRC conducts a public meeting or other form of public engagement to communicate its intent before discontinuing the rulemaking.

After Commission approval to discontinue a rulemaking activity, the staff updates the next edition of the Unified Agenda to indicate that the rulemaking is discontinued. The rulemaking activity will appear in the completed section of that edition of the Unified Agenda but will not appear in future editions.

Consistent with Commission direction provided in SRM-SECY-15-0149, the staff initiated a rulemaking to determine whether a third party's reversal of a licensee reviewing official's access authorization determination or fitness-for-duty determination would adversely impact public health and safety or the common defense and security.

The NRC held two public meetings to discuss this rulemaking activity. During these meetings, the NRC obtained input from interested stakeholders, including union and industry representatives, concerning the use of third-party arbitration within the commercial nuclear power industry. The NRC posted summaries of these public meetings in ADAMS at Accession Nos. ML16336A034 and ML17067A171. The NRC also held a closed meeting with the International Brotherhood of Electrical Workers on December 12, 2016, to discuss several specific cases referenced in SECY-15-0149 and other cases that were relevant to this rulemaking activity. After the closed meeting, the International Brotherhood of Electrical Workers voluntarily provided the NRC with specific data on arbitration cases involving certain International Brotherhood of Electrical Workers members and the outcome of these cases. The NRC posted a summary of the closed meeting in ADAMS at Accession No. ML16355A092.

The data from the International Brotherhood of Electrical Workers showed that, over a span of 32 years, 371 individuals had their access authorizations terminated and were therefore removed from employment with licensees. Of those 371 individuals, 46 elected to arbitrate their termination, and 14 of those individuals ultimately returned to work. To date, none of these reinstatements have resulted in an adverse impact on public health and safety or the common defense and security. The data provided by the International Brotherhood of Electrical Workers was limited only to information provided by local union organizations and does not necessarily offer a complete list of all the International Brotherhood of Electrical Workers arbitration cases, arbitrations involving other unions, or arbitrations brought by individuals independent of any union involvement.

In February and March 2017, Exelon Generation gave the NRC information on four arbitration cases that had reversed access authorization decisions made by Exelon reviewing officials. The NRC is not aware of any safety or security issues associated with the reinstatement of unescorted access for the individuals involved in these cases. One of these cases, however, did result in the NRC issuing a noncited violation to Exelon. In this specific case, pursuant to an arbitrator's ruling, the licensee removed disqualifying information from an industry shared database. The disqualifying information was related to an individual to whom the licensee had previously denied unescorted access. Removal of this disqualifying information constituted a violation of the NRC's regulations, which require the licensee to ensure that any disqualifying information about an individual who applied for unescorted access authorization be retained in the shared database. This individual did not return to work, and there is no additional information regarding the performance of this individual.

Although allowing a third party, for example, an arbitrator, to overturn a licensee's access authorization and fitness-for-duty determination poses a potential risk, the staff does not consider this risk to present a significant safety or security threat. Licensees have maintained and implemented defense-in-depth security programs designed to ensure, in part, that individuals who maintain unescorted access to NRC-licensed commercial power reactors and Category I fuel cycle facilities are trustworthy and reliable and fit for duty. This is accomplished through the implementation of their insider mitigation, access authorization, fitness-for-duty, cyber protection, and physical protection programs. Additionally, the NRC will continue to maintain awareness of access authorization issues and take necessary actions should the need arise.

During the development of the regulatory basis, the staff considered the feedback received from external stakeholders, including the information from the International Brotherhood of Electrical Workers and Exelon. The staff used this external feedback and other information obtained during development of the draft regulatory basis to evaluate whether the issue of third-party arbitrators overturning licensee access authorization and fitness-for-duty decisions posed a security vulnerability that needed to be addressed through rulemaking. After considering this new information, the staff determined that third-party reversals of licensee access authorization and fitness-for-duty decisions do not present a significant safety or security concern that warranted engaging in rulemaking.

As part of the rulemaking process, the staff performed a preliminary cost analysis, which concluded that the rulemaking option would not be justified, based on a mean net cost of $ 4.5 million. Further, the staff identified no significant qualitative or quantitative benefits that would offset the cost to conduct the rulemaking.

Consistent with NRC procedures for discontinuing a rulemaking and because the staff's recommended approach was different from the recommended approach in SECY-15-0149, the staff conducted a public meeting on November 1, 2018. During the public meeting, the staff presented the status of this rulemaking and indicated that it intended to recommend to the Commission the discontinuation of this rulemaking effort for the reasons stated in this document. The staff did not receive any negative feedback on this proposed recommendation.

In consideration of Commission direction in SRM-SECY-15-0149 to include a robust appeals process in the proposed rule, the staff analyzed whether standalone activities, such as issuing guidance on appeals processes, would be necessary if the NRC determined that rulemaking was not needed to address third-party reviews. Based on stakeholder input, the NRC determined its regulations provide adequate appeals processes, and the NRC does not plan to issue NRC guidance.

The NRC is no longer pursuing the “Access Authorization and Fitness-for-Duty Determinations” rulemaking for the reasons discussed in this document. In the next edition of the Unified Agenda, the NRC will update the entry for the rulemaking activity and reference this document to indicate that the rulemaking is no longer being pursued. The rulemaking activity will appear in the completed actions section of that edition of the Unified Agenda but will not appear in future editions. If the NRC decides to pursue a similar or related rulemaking activity in the future, it will inform the public through a new rulemaking entry in the Unified Agenda.

Please refer to Docket ID NRC-2019-0126 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to http://www.regulations.gov and search for Docket ID NRC-2019-0126.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to pdr.resource@nrc.gov. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the “Availability of Documents” section.

• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

Please include Docket ID NRC-2019-0126 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

This direct final rule is limited to the changes contained in Amendment No. 3 to Certificate of Compliance No. 1008 and does not include other aspects of the Holtec International Storage, Transport and Repository (HI-STAR) 100 Storage System design. The NRC is using the direct final rule procedure to issue this amendment because it represents a limited and routine change to an existing certificate of compliance that is expected to be noncontroversial. Adequate protection of public health and safety continues to be ensured. The amendment to the rule will become effective on November 5, 2019. However, if the NRC receives significant adverse comments on this direct final rule by September 23, 2019, then the NRC will publish a document that withdraws this action and will subsequently address the comments received in a final rule as a response to the companion proposed rule published in the Proposed Rules section of this issue of the Federal Register . Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC to make a change (other than editorial) to the rule, certificate of compliance, or technical specifications.

For detailed instructions on filing comments, please see the companion proposed rule published in the Proposed Rules section of this issue of the Federal Register .

Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended, requires that “the Secretary [of the Department of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the Nuclear Waste Policy Act states, in part, that “[the Commission] shall, by rule, establish procedures for the licensing of any technology approved by the Commission under section [218(a)] for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the Commission approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule that added a new subpart K in part 72 of title 10 of the Code of Federal Regulations (10 CFR) entitled “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new subpart L in 10 CFR part 72 entitled “Approval of Spent Fuel Storage Casks,” which contains procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on September 3, 1999, that approved the HI-STAR 100 Storage System design and added it to the list of NRC-approved cask designs provided in § 72.214 as Certificate of Compliance No. 1008 (64 FR 48259).

On September 25, 2015, Holtec International submitted a request to the NRC to amend Certificate of Compliance No. 1008. Holtec International supplemented its request on January 15, 2016, April 29, 2016, December 15, 2017, July 2, 2018, and February 6, 2019. Amendment No. 3 revises the technical specifications to: (1) Include multipurpose canister (MPC)-32 for storage of pressurized-water reactor spent fuel in the Holtec International HI-STAR 100 Storage System; (2) include the Metamic neutron absorber for MPC-32, MPC-24, and MPC-68; (3) credit the soluble boron in criticality analyses for both MPC-32 and MPC-24; (4) incorporate standard system features and ancillaries such as the forced helium dehydration; (5) allow for horizontal storage of the casks; (6) provide updated drawings; (7) revise the MPC design pressure for accident condition to 200 pounds per square inch gauge; and (8) make other administrative changes to the technical specifications. This direct final rule revises the Holtec International HI-STAR 100 Storage System listing in § 72.214 by adding Amendment No. 3 to Certificate of Compliance No. 1008. The revised certificate of compliance and technical specifications are identified and evaluated in the preliminary safety evaluation report.

As documented in that preliminary safety evaluation report, the NRC performed a detailed safety evaluation of the proposed certificate of compliance amendment request. There are no significant changes to cask design requirements in the proposed amendment. Considering the specific design requirements for each accident condition, the design of the cask would prevent loss of containment, shielding, and criticality control in the event of an accident. This amendment does not reflect a significant change in design or fabrication of the cask. In addition, any resulting occupational exposure or offsite dose rates from the implementation of Amendment No. 3 would remain well within the limits specified by 10 CFR part 20, “Standards for Protection Against Radiation.” There will be no significant change in the types or amounts of any effluent released, no significant increase in the individual or cumulative radiation exposure, and no significant increase in the potential for, or consequences from, radiological accidents.

The amended Holtec International HI-STAR 100 Storage System cask design, when used under the conditions specified in the certificate of compliance, the technical specifications, and the NRC's regulations, will meet the requirements of 10 CFR part 72; therefore, adequate protection of public health and safety will continue to be ensured. When this direct final rule becomes effective, persons who hold a general license under § 72.210 may, consistent with the license conditions under § 72.212, load spent nuclear fuel into those Holtec International HI-STAR 100 Storage System casks that meet the criteria of Amendment No. 3 to Certificate of Compliance No. 1008.

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC will revise the Holtec International HI-STAR 100 Storage System design listed in § 72.214. This action does not constitute the establishment of a standard that contains generally applicable requirements.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), this rule is classified as Compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended, or the provisions of 10 CFR chapter I. Although an Agreement State may not adopt program elements reserved to the NRC, and the Category “NRC” does not confer regulatory authority on the State, the State may wish to inform its licensees of certain requirements by means consistent with the particular State's administrative procedure laws.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31885).

Under the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in subpart A of 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” the NRC has determined that this direct final rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The NRC has made a finding of no significant impact on the basis of this environmental assessment.

The action is to amend § 72.214 to revise the Holtec International HI-STAR 100 Storage System listing within the “List of approved spent fuel storage casks” to include Amendment No. 3 to Certificate of Compliance No. 1008.

This direct final rule amends the certificate of compliance for the Holtec International HI-STAR 100 Storage System design within the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites under a general license. Specifically, Amendment No. 3 updates the certificate of compliance to: (1) Include MPC-32 for storage of pressurized-water reactor spent fuel in the Holtec International HI-STAR 100 Storage System; (2) include the Metamic neutron absorber for MPC-32, MPC-24, and MPC-68; (3) credit the soluble boron in criticality analyses for both MPC-32 and MPC-24; (4) incorporate standard system features and ancillaries such as the forced helium dehydration; (5) allow for horizontal storage of the casks; (6) provide updated drawings; (7) revise the MPC design pressure for accident condition to 200 pounds per square inch gauge; and (8) make other administrative changes to the technical specifications.

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent fuel under a general license in cask designs approved by the NRC. The potential environmental impact of using NRC-approved storage casks was initially analyzed in the environmental assessment for the 1990 final rule. The environmental assessment for this Amendment No. 3 tiers off of the environmental assessment for the July 18, 1990, final rule. Tiering off past environmental assessments is a standard process under the National Environmental Policy Act of 1969, as amended.

Holtec International HI-STAR 100 Storage Systems are designed to mitigate the effects of design basis accidents that could occur during storage. Design basis accidents account for human-induced events and the most severe natural phenomena reported for the site and surrounding area. Postulated accidents analyzed for an independent spent fuel storage installation, the type of facility at which a holder of a power reactor operating license would store spent fuel in casks in accordance with 10 CFR part 72, include tornado winds and tornado-generated missiles, a design basis earthquake, a design basis flood, an accidental cask drop, lightning effects, fire, explosions, and other events.

Considering the specific design requirements for each accident condition, the design of the cask would prevent loss of confinement, shielding, and criticality control in the event of an accident. If there is no loss of confinement, shielding, or criticality control, the environmental impacts resulting from an accident would be insignificant. This amendment does not reflect a significant change in design or fabrication of the cask. Because there are no significant design or process changes, any resulting occupational exposure or offsite dose rates from the implementation of Amendment No. 3 would remain well within 10 CFR part 20 limits. Therefore, the proposed certificate of compliance changes will not result in any radiological or non-radiological environmental impacts that significantly differ from the environmental impacts evaluated in the environmental assessment supporting the July 18, 1990, final rule. There will be no significant change in the types or amounts of any effluent released, no significant increase in individual or cumulative radiation exposures, and no significant increase in the potential for, or consequences of, radiological accidents. The NRC documented its safety findings in a preliminary safety evaluation report.

The alternative to this action is to deny approval of Amendment No. 3 and not issue the direct final rule. Consequently, any 10 CFR part 72 general licensee that seeks to load spent nuclear fuel into the Holtec International HI-STAR 100 Storage System in accordance with the changes described in Amendment No. 3 would have to request an exemption from the requirements of §§ 72.212 and 72.214. Under this alternative, interested licensees would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee. Therefore, the environmental impacts of the alternative action would be the same as, or more likely greater than, the preferred action.

Approval of Amendment No. 3 to Certificate of Compliance No. 1008 would result in no irreversible commitment of resources.

No agencies or persons outside the NRC were contacted in connection with the preparation of this environmental assessment.

The environmental impacts of the action have been reviewed under the requirements in National Environmental Policy Act of 1969, as amended, and the NRC's regulations in subpart A of 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions.” Based on the foregoing environmental assessment, the NRC concludes that this direct final rule entitled, “List of Approved Spent Fuel Storage Casks: Holtec International HI-STAR 100 Storage System, Certificate of Compliance No. 1008, Amendment No. 3,” will not have a significant effect on the human environment. Therefore, the NRC has determined that an environmental impact statement is not necessary for this direct final rule.

This direct final rule does not contain any new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing collections of information were approved by the Office of Management and Budget, approval number 3150-0132.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid Office of Management and Budget control number.

Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this direct final rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only nuclear power plant licensees and Holtec International. These entities do not fall within the scope of the definition of small entities set forth in the Regulatory Flexibility Act or the size standards established by the NRC (§ 2.810).

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if it notifies the NRC in advance, the spent fuel is stored under the conditions specified in the cask's certificate of compliance, and the conditions of the general license are met. A list of NRC-approved cask designs is contained in § 72.214. On September 3, 1999 (64 FR 48259), the NRC issued an amendment to 10 CFR part 72 that approved the Holtec International HI-STAR 100 Storage System design by adding it to the list of NRC-approved cask designs in § 72.214.

On September 25, 2015, and as supplemented on January 15, 2016, April 29, 2016, December 15, 2017, July 2, 2018, and February 6, 2019, Holtec International submitted an application to amend the Holtec International HI-STAR 100 Storage System as described in Section IV, “Discussion of Changes,” of this document.

The alternative to this action is to withhold approval of Amendment No. 3 and to require any 10 CFR part 72 general licensee seeking to load spent nuclear fuel into the Holtec International HI-STAR 100 Storage System under the changes described in Amendment No. 3 to request an exemption from the requirements of §§ 72.212 and 72.214. Under this alternative, each interested 10 CFR part 72 licensee would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee.

Approval of this direct final rule is consistent with previous NRC actions. Further, as documented in the preliminary safety evaluation report and environmental assessment, this direct final rule will have no adverse effect on public health and safety or the environment. This direct final rule has no significant identifiable impact or benefit on other Government agencies. Based on this regulatory analysis, the NRC concludes that the requirements of this direct final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and therefore, this action is recommended.

The NRC has determined that the backfit rule (§ 72.62) does not apply to this direct final rule. Therefore, a backfit analysis is not required. This direct final rule revises Certificate of Compliance No. 1008 for the Holtec International HI-STAR 100 Storage System, as currently listed in § 72.214. The amendment consists of the changes to Amendment No. 3 previously described, as set forth in the revised certificate of compliance and technical specifications.

Amendment No. 3 to Certificate of Compliance No. 1008 for the Holtec International HI-STAR 100 Storage System was initiated by Holtec International and was not submitted in response to new NRC requirements, or an NRC request for amendment. Amendment No. 3 applies only to new casks fabricated and used under Amendment No. 3. These changes do not affect existing users of the Holtec International HI-STAR 100 Storage System, and the current Amendment No. 2 continues to be effective for existing users. While current certificate of compliance users may comply with the new requirements in Amendment No. 3, this would be a voluntary decision on the part of current users.

For these reasons, Amendment No. 3 to Certificate of Compliance No. 1008 does not constitute backfitting under § 72.62 or § 50.109(a)(1), or otherwise represent an inconsistency with the issue finality provisions applicable to combined licenses in 10 CFR part 52. Accordingly, the NRC has not prepared a backfit analysis for this rulemaking.

This direct final rule is not a rule as defined in the Congressional Review Act.

The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.

The NRC may post materials related to this document, including public comments, on the Federal Rulemaking website at http://www.regulations.gov under Docket ID NRC-2019-0126. The Federal Rulemaking website allows you to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) Navigate to the docket folder (NRC-2019-0126); (2) click the “Sign up for Email Alerts” link; and (3) enter your email address and select how frequently you would like to receive emails (daily, weekly, or monthly).

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Nuclear Waste Policy Act of 1982, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting the following amendments to 10 CFR part 72:

Background

Airbus requested an amendment to Special Condition No. 25-326-SC in letter L2578ME1831060 revision 1, dated November 21, 2018. This letter states:

During initial discussions with Airbus regarding the special conditions, the FAA had included a requirement that the stairways be designed such that evacuees can achieve an adequate rate going down or up under probable emergency conditions, including a condition in which a person falls or is incapacitated while on the stairway. Airbus agreed with the requirement except for the portion pertaining to a person falling or being incapacitated. The FAA documented agreement with Airbus's position. Unfortunately the special conditions were issued with the FAA's initial proposal rather than the final agreement, and stated that the stairs be designed such that evacuees can achieve an adequate rate going up or down the stairs under probable emergency conditions including a condition in which a person falls or is incapacitated while on the stairway.

Under the provisions of 14 CFR 21.17, Airbus must show that the Model A380 airplane meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-98. If the Administrator finds that the applicable airworthiness regulations do not contain adequate or appropriate safety standards for the Airbus Model A380 airplane because of novel or unusual design features, special conditions are prescribed under the provisions of 14 CFR 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Airbus Model A380 airplane must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with 14 CFR 11.38 and become part of the type certification basis in accordance with 14 CFR 21.17(a)(2).

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of 14 CFR 21.101.

The Airbus Model A380 airplane will incorporate the following novel or unusual design features: This airplane has a full-length double deck. For these design features, the applicable airworthiness regulations do not contain adequate or appropriate safety standards regarding stairways between decks.

The Model A380 airplane incorporates seating on two full-length passenger decks, each of which has the capacity of a typical wide body airplane. Two staircases, one located in the front of the cabin and one located in the rear, allow for the movement of persons between decks. With large seating capacities on the main deck and the upper deck of the Model A380 airplane, the staircases need to be able to support movement between decks in an inflight emergency. In addition, although compliance with the evacuation demonstration requirements of § 25.803 does not depend on the use of stairs, there must be a way for passengers on one deck to move to the other deck during an emergency evacuation. This need must be addressed in the certification of the airplane.

The regulations governing the certification of the Model A380 airplane do not adequately address a passenger airplane with two separate full-length decks for passengers. The Boeing Model 747 and the Lockheed Model L-1011 airplanes were certificated with limited seating capacity on two separate decks, and special conditions were issued to certificate those arrangements. When the seating capacity of the upper deck of the Boeing Model 747 airplane exceeded 24 passengers, the FAA issued Special Conditions 25-61-NW-1 for a maximum seating capacity of 32 passengers on the upper deck for take-off and landing. A second set of Special Conditions, 25-71-NW-3, was issued to cover airplanes with a maximum seating capacity of 45 passengers on the upper deck for take-off and landing. That second set of Special Conditions was later modified to address airplanes with a maximum seating capacity of 110 passengers on the upper deck. These previously issued special conditions provided a starting point for the development of special conditions for the Model A380 airplane.

In the case of both the Model L-1011 and the Model 747 airplanes, the special conditions were based on the requirements and associated level of safety in place at the time of application for type certificate. The requirements and the level of safety have improved significantly since that time, and these special conditions reflect those improvements.

In addition to the requirements of §§ 25.803 and 25.811 through 25.813, special conditions are needed to address the movement of passengers between the two full-length decks on the Model A380 airplane. These special conditions provide additional requirements for the stairways to ensure the safe passage of occupants between decks during moderate turbulence, an inflight emergency, or an emergency evacuation.

The special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

The FAA issued Notice of Proposed Amended Special Conditions No. 25-19-04-SC for the Airbus Model A380 airplane, which was published in the Federal Register on May 3, 2019 (84 FR 18997). The FAA received a response from one commenter.

The commenter feels that stairwells should be designed for ingress and egress above the minimum standards identified in the special condition. However, the commenter did not propose any additional standard that Airbus should meet nor specify why meeting the minimum standards, of the special condition, was unsafe. As a result, no changes have been made to the special condition.

As discussed above, these special conditions are applicable to the Airbus Model A380 airplane. Should Airbus apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design features, these special conditions would apply to that model as well under the provisions of § 21.101.

This action affects only certain novel or unusual design features of the Airbus Model A380 airplane. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

1. At least one stairway between decks must meet the following requirements:

The stairway accommodates the carriage of an incapacitated person from one deck to the other. The crew member procedures for such carriage must be established.

2. There must be at least two stairways between decks that meet the following requirements: The stairways must be designed such that evacuees can achieve an adequate rate for going down or going up under probable emergency conditions. One of the stairways must be the stairway specified in paragraph 1. above.

3. Each stairway between decks must meet the following requirements:

a. It must have an entrance, exit, and gradient characteristics that, with the assistance of a crew member, would allow the passengers of one deck to merge with passengers of the other deck during an evacuation and exit the airplane. These entrance, exit, and gradient characteristics must occur with the airplane in level attitude and in each attitude resulting from the collapse of any one or more legs of the landing gear. These requirements must be demonstrated by tests or analysis.

b. The stairway must have a handrail on at least one side in order to allow people to steady themselves during foreseeable conditions, including but not limited to the condition of gear collapse on the ground and moderate turbulence in flight. The handrails must be constructed so that there will be no obstruction on them which will cause the user to release their grip on the handrail, or will hinder the continuous movement of the hands along the handrail. Handrails must be terminated in a manner which will not obstruct pedestrian travel or create a hazard. Adequacy of the design must be demonstrated by using persons representative of the 5% female and the 95% male.

c. The stairway must be designed and located to minimize damage to it during an emergency landing or ditching.

d. The stairway must have a wall or the equivalent on each side to minimize the risk of falling and to facilitate use of the stairway under conditions of abnormal airplane attitude.

e. Treads and landings must be designed and demonstrated to be free of hazard. The landing area at each deck level must be demonstrated to be adequate in terms of flow rate for the maximum number of people that will be using the stair in an emergency. Treads and risers must be designed to ensure an easy and safe use of the stairway.

f. General emergency illumination must be provided so that, when measured along the centerlines of each tread and landing-, the illumination is not less than 0.05 foot-candle.

g. In normal operation, the general illumination level must not be less than 0.05 foot-candles. The assessment must be done under daylight and dark of night conditions.

h. Both stairway ends must be indicated by an exit sign visible to passengers when in the stairway. This exit sign must meet the requirements of § 25.812(b)(1)(ii).

i. A floor-proximity path-marking system, which meets the requirements of § 25.812(e), must be available to guide passengers in the stairway to the stairway ends. It must not direct the occupants of the cabin to the stair entrance.

j. The public address system must be audible in the stairway during all flight phases.

k. “No smoking” and “return to seat” signs must be installed and must be visible in the stairway both going up and down, and at the stairway entrances.

4. Cabin crew procedures and positions must be established to manage the use of the stairs on the ground and in flight under both normal and emergency situations. This may require that cabin crew members have specific dedicated duties for the management of the stairs during emergency and precautionary evacuations.

5. It should not be hazardous for crew members or passengers who are returning to their seats to use the stairways during moderate turbulence.

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0175, dated July 19, 2019 (“EASA AD 2019-0175”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A350-941 and -1041 airplanes. The MCAI states:

EASA AD 2019-0175 describes procedures for a one-time inspection of the washers installed on the front and rear engine mount primary pins and thrust link pins of both engines, depending on configuration, and corrective actions. Corrective actions include replacing any affected washer with a serviceable part and repair.

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.

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

This AD requires accomplishing the actions specified in EASA AD 2019-0175 described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD. This AD also requires sending the inspection results to Airbus.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. As a result, EASA AD 2019-0175 will be incorporated by reference in the FAA final rule. This AD, therefore, requires compliance with EASA AD 2019-0175 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in the EASA AD. Service information specified in EASA AD 2019-0175 that is required for compliance with EASA AD 2019-0175 will be available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2019-0606 after the FAA final rule is published.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because the unsafe condition could result in the in-flight detachment of an engine, and consequent reduced control of the airplane. Therefore, the FAA finds good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reasons 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 the FAA did not precede it by notice and opportunity for public comment. The FAA invites you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2019-0606; Product Identifier 2019-NM-120-AD” at the beginning of your comments. The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this AD. The FAA will consider all comments received by the closing date and may amend this AD based on 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 AD.

The FAA estimates that this AD affects 13 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

We estimate that it would take about 1 work-hour per product to comply with the reporting requirement in this AD. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of reporting the inspection results on U.S. operators to be $1,105, or $85 per product.

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

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW, Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

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 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:

Discussion

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0171, dated July 17, 2019 (“EASA AD 2019-0171”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A321-251N, A321-252N, A321-253N, A321-271N, A321-272N, A321-251NX, A321-252NX, A321-253NX, A321-271NX, and A321-272NX airplanes. The MCAI states:

EASA AD 2019-0171 describes procedures for revising the AFM to incorporate operational limitations, and for certain airplanes, updated procedures, related to center of gravity with ELAC L102 installed.

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.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the agency has been notified of the unsafe condition described in the MCAI referenced above. The FAA is issuing this AD because it has evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

This AD requires accomplishing the actions specified in EASA AD 2019-0171 described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. As a result, EASA AD 2019-0171 will be incorporated by reference in the FAA final rule. This AD, therefore, requires compliance with EASA AD 2019-0171 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in the EASA AD. Service information specified in EASA AD 2019-0171 that is required for compliance with EASA AD 2019-0171 will be available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2019-0577 after the FAA final rule is published.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C.) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without seeking comment prior to the rulemaking. Similarly, Section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

As noted above and in EASA AD 2019-0171, these airplanes are subject, given certain conditions and specific maneuvers, to excessive pitch attitude which can result in loss of airplane control. The FAA considers the prevention of this unsafe condition to be an urgent safety issue. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B). In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

The requirements of the 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.

This AD is a final rule that involves requirements affecting flight safety, and was not preceded by notice and opportunity for public comment. The FAA invites you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2019-0577; Product Identifier 2019-NM-119-AD” at the beginning of your comments. The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this AD. The agency will consider all comments received by the closing date and may amend this AD based on those comments.

The FAA will post all comments received, 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 received about this AD.

The FAA estimates that this AD affects 35 airplanes of U.S. registry. The agency 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.

The FAA 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, 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:

Discussion

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2016-07-12, Amendment 39-18457 (81 FR 19482, April 5, 2016) (“AD 2016-07-12”). AD 2016-07-12 applied to certain Airbus SAS Model A318, A319, A320, and A321 series airplanes. The NPRM published in the Federal Register on February 22, 2019 (84 FR 5617). The NPRM was prompted by reports of cracking of the AFF of the pylons due to fatigue damage of the structure and reports of cracks on a certain rib of a modified AFF of the pylons. The NPRM proposed to continue to require repetitive inspections for damage and cracking of the AFF of the pylons. The NPRM also proposed to require additional repetitive inspections at the upper spar at a certain rib area and corrective actions if necessary. The FAA is issuing this AD to address damage and cracking of the AFF of the pylons, which could result in detachment of a pylon and consequent reduced structural integrity of the airplane.

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0137R1, dated January 9, 2019 (“EASA AD 2018-0137R1”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A318-111, and -112; Model A319-111, -112, -113, -114, and -115; Model A320-211, -212, -214, and -216; and Model A321-111, -112, -211, -212, and -213 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-2019-0018.

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.

Commenters Delta Air Lines (DAL), Jeff Hymen, and Megan Neeley indicated their support for the NPRM.

Alaska Airlines (Alaska) and DAL requested that the FAA refer to EASA AD 2018-0137R1 in lieu of EASA AD 2018-0137, dated July 12, 2018 (“EASA AD 2018-0137”). Alaska requested revision of paragraphs (c) and (g) of the proposed AD to cite EASA AD 2018-0137R1.

The FAA agrees with the commenters' requests. No additional work is required for airplanes on which the requirements of EASA AD 2018-0137, dated June 28, 2018 (“EASA AD 2018-0137”), have been accomplished. The FAA has revised paragraphs (c) and (g) of this AD to cite EASA AD 2018-0137R1 in addition to EASA AD 2018-0137. The FAA has also revised paragraph (h)(1)(i) of this AD to require the use of the effective date of this AD rather than the effective date of EASA 2018-0137 (July 12, 2018), as referenced in EASA ADs 2018-0137 and 2018-0137R1, to determine compliance.

DAL requested that paragraph (h)(4) of the proposed AD be removed, which did not allow for the provisions of paragraph (5) of EASA AD 2018-0137 (credit for actions done using certain service information). DAL argued that if the provisions of paragraph (5) of EASA AD 2018-0137R1 are disallowed, the result would be a requirement that is more restrictive to U.S. operators. DAL further noted that disallowing paragraph (5) of EASA AD 2018-0137R1, which allows credit for initial inspections using additional revisions of certain service information, would mean the initial inspections would have to be accomplished faster and may require special scheduled inspections, which often results in utilizing less experienced mechanics. DAL requested that the AD specify which revision of the EASA AD will be allowed. Accordingly, DAL requests that, if this AD is updated to reflect EASA AD 2018-0137R1, that paragraph (h)(4) of this AD be removed.

The FAA agrees with the request for the reasons provided. Also note that paragraph (5) of EASA AD 2018-0137R1 adds credit for initial inspections performed in accordance with Airbus Service Bulletin A320-54-1027, dated April 10, 2014; and Airbus Service Bulletin A320-54-1027, Revision 1, dated January 14, 2015; which were not included in paragraph (5) of EASA AD 2018-0137. Paragraph (h)(4) of the proposed AD is removed and paragraphs (h)(5) and (h)(6) of the proposed AD are redesignated as paragraphs (h)(4) and (h)(5) of this AD to reflect this request.

DAL requested that the AD allow for the re-installation of an affected AFF if it was removed for reasons other than meeting the requirement of the AD, such as routine maintenance. DAL pointed out that an affected AFF may need to be removed for access to perform either unrelated maintenance or for compliance with certain service information referenced in EASA ADs 2018-0137 and 2018-0137R1. DAL's interpretation of the “do not install” language in paragraph (11) of EASA AD 2018-0137 led it to believe that operators would struggle to comply with the instructions as written, and recommended that the FAA adds a statement that would allow the re-installation of an AFF that was removed from the airplane for the purpose of maintenance or inspections.

The FAA agrees to clarify. Group 1 airplanes, as specified in EASA ADs 2018-0137 and 2018-0137R1, are those that, as of the effective date of this AD, have an affected AFF installed. The intent of paragraph (11.1) of EASA ADs 2018-0137 and 2018-0137R1 is to prevent an affected AFF from being re-installed on a Group 1 airplane only if the modification specified in paragraph (9) or (10) of EASA AD 2018-0137 or EASA AD 2018-0137R1 has already been accomplished on that airplane. An operator has the full compliance time to accomplish the modification, and, up until the modification is accomplished, an affected AFF may be re-installed for reasons such as routine maintenance.

Group 2 airplanes, as specified in EASA ADs 2018-0137 and 2018-0137R1, are those airplanes that, as of the effective date of this AD, do not have an affected AFF installed. For Group 2 airplanes, the intent of paragraph (11.2) of EASA ADs 2018-0137 and 2018-0137R1 is to prevent an affected AFF from being installed on an airplane on which an affected AFF was not already installed as of the effective date of this AD. The AD has not been changed in this regard.

DAL pointed out that the reference publications section of EASA ADs 2018-0137 and 2018-0137R1 allows the use of later-approved revisions to the specified service information for compliance. DAL requested clarification to determine if this statement is applicable to this AD.

The AD does not exclude the “Ref. Publications” section of EASA ADs 2018-0137 and 2018-0137R1, so that section is applicable to this AD. The AD has not been changed in this regard.

DAL requested that the proposed AD be revised to add an exception that allows the use of consumable material list (CML) 10ABE1, “touch up alodine,” in addition to CML 10ABC1, “tank alodine.” DAL noted that while Airbus commonly specifies tank alodine, DAL prefers to use touch up alodine. DAL explained that they contacted Airbus on this issue and Airbus confirmed that touch up alodine can be used instead of tank alodine for the embodiment of Airbus Service Bulletin A320-54-1027; Airbus Service Bulletin A320-54-1035; and Airbus Service Bulletin A320-54-1036.

DAL claimed that Airbus Service Bulletin A320-54-1027 and Airbus Service Bulletin A320-54-1035 state that all steps in the Procedure and Test sections are required for compliance (RC). DAL also maintained that some of those steps are corrosion prevention control program (CPCP) controlled tasks. Because corrosion inhibition compound (CIC) is part of CPCP, DAL argued that application of CIC should be managed by each individual operator regardless of the AD requirement. As a result, DAL requested language added to the proposed AD that allows for operators to control the reapplication of CICs as an alternative to the service information specifications.

DAL also noted that the “Preparation” section of the service information referenced in EASA ADs 2018-0137 and 2018-0137R1 contains references to a certain aircraft maintenance manual (AMM) section for basic aircraft configuration. The basic aircraft configuration of the AMM states that the aircraft is in the “weight on wheels” configuration. DAL noted that sometimes their airplanes are on jacks and that having the airplane in a weight on wheels configuration may limit the ability of their maintenance technicians to perform the required actions. DAL requested an exception to the proposed AD that allows for the required actions to be performed with either weight on wheels or while the aircraft is in a jacked configuration.

The FAA agrees with the request to add an exception that allows the use of CML 10ABE1, touch up alodine for the reasons provided. This AD has been revised to change the content of paragraph (h)(6) of this AD to state that where any service information referenced in EASA ADs 2018-0137 and 2018-0137R1 specifies to use CML material number 10ABC1, this AD allows the use of CML material number 10ABE1 as an additional method of compliance.

The FAA disagrees with the request to add language to the proposed AD that allows for operators to control the reapplication of CICs via CPCP because not all U.S. operators have a standardized CPCP. If DAL cannot follow the CIC specified by Airbus in the service information, then they can reference the Airbus CML for an alternative CIC. Airbus's CML document contains a list of the latest consumables and alternatives that can be used. Operators may apply for an alternative method of compliance (AMOC) using the procedures in paragraph (j)(1) of this AD for using alternate consumables allowed in the CML with appropriate substantiations. The AD has not been changed in this regard.

The FAA agrees to clarify regarding the request for airplanes in a jacked configuration. The step the commenter referred to says to “refer to” the AMM. As noted in the service information, when the words “refer to” are used and the operator has a FAA accepted alternative procedure, the accepted alternative procedure can be used. Operators therefore have latitude in how to accomplish any work steps that use the term “refer to.” This AD has not been changed in this regard.

DAL requested clarification regarding the interval of the repetitive inspection specified in paragraph (3) of EASA ADs 2018-0137 and 2018-0137R1. DAL noted that, based on its understanding, the first repetitive inspection interval threshold is not to exceed 10,000 flight cycles or 15,000 flight hours, whichever occurs first. DAL remarked that it appears this threshold is based on the assumption that the initial inspections were done close to the initial threshold of 5,000 flight cycles or 7,500 flight hours, whichever occurred first. DAL requested clarification for a scenario in which an operator performed the specified inspection at 1,000 flight cycles or 1,000 flight hours, and asked if the first repetitive inspection interval would still be required before exceeding 10,000 flight cycles or 15,000 flight hours, whichever occurs first. DAL inquired if, in that same scenario, a grace period from the previous inspection would be more appropriate.

The FAA agrees to clarify. For the DAL scenario, the repetitive inspection will be due before exceeding 5,000 flight cycles or 7,500 flight hours, whichever occurs first since the last inspection. As stated previously, this AD now refers to EASA AD 2018-0137R1, as well as EASA AD 2018-0137. Paragraph (3) of EASA AD 2018-0137R1 has been revised to include multiple compliance times, including a grace period for airplanes on which an inspection has already been accomplished using earlier revisions of the service information or accomplishment of a certain maintenance planning document (MPD) task or a certain AOT. The AD has not been changed in this regard.

DAL noted that paragraph (9) of EASA ADs 2018-0137 and 2018-0137R1 reference service information without a revision level. DAL inquired if the intent of the reference is to use only the original issue of the service information, or if any revision level is acceptable for compliance.

The FAA agrees to clarify. Operators may use any approved revision of the service information to perform the optional terminating modification, so long as the modification meets the provisions of paragraph (9) of EASA ADs 2018-0137 and 2018-0137R1.

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

EASA AD 2018-0137 and EASA AD 2018-0137R1 describe procedures for repetitive inspections for pre- and post-Airbus SAS modification 156593 airplanes, corrective actions, and optional terminating actions for the repetitive inspections. Corrective actions include modifications and repair. These documents are distinct since EASA AD 2018-0137R1 omits certain language, provides credit for additional service information, and clarifies certain compliance times. 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 205 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has received no definitive data that would enable the agency to provide cost estimates for the on-condition actions 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 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;

3. Will not affect intrastate aviation in Alaska; and

4. 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 Notice of Proposed Rulemaking (NPRM), the comments received, and this document may be viewed online through the Federal eRulemaking portal at: http://www.regulations.gov under docket ID FHWA-2018-0042. Copies of this document also may be downloaded by accessing the Office of the Federal Register's home page at: http://www.archives.gov or the Government Publishing Office's web page at: http://www.gpoaccess.gov/nara.

The Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991 (Pub. L. 102-240, 105 Stat. 1914, Dec. 18, 1991) restricts the operation of LCVs on the Interstate Highway System (Sec. 1023(b), 105 Stat. 1952) and CMV combinations with two or more cargo-carrying units on the National Network (NN) (Sec. 4006, 105 Stat. 2148) to the types of vehicles in use on or before June 1, 1991, subject to whatever State rules, regulations, or restrictions were in effect on that date. A listing of these vehicles and restrictions is found in 23 CFR part 658, Appendix C.

The FHWA is modifying its regulations, as found in 23 CFR part 658, Appendix C, governing vehicles covered by 23 U.S.C. 127(d) (LCVs) and 49 U.S.C. 31112 (CMVs with two or more cargo-carrying units) in the State of South Dakota, as proposed in a NPRM published on February 6, 2019, at 84 FR 2071.

This action is necessary to implement the provisions of Section 5516 of the FAST Act, which provides South Dakota the opportunity to update and revise the routes designated as qualifying Federal-aid Primary System highways as long as the update shifts routes to divided highways or does not increase centerline miles by more than 5 percent and is expected to increase safety performance. The FAST Act Conference Report to Accompany H.R. 22 (House of Representatives 114th Congress 1st Session Report 114-357, December 1, 2015) states, “Conferees expect that the implementation of section 5516 will provide the maximum flexibility possible to re-route longer combination vehicles in the affected State to divided highways, highway facilities designed for freight transportation, or along routes that will enhance overall highway safety.”

In an August 30, 2016, letter to FHWA, the South Dakota Department of Transportation (SDDOT) requested that FHWA add the additional routes for South Dakota's LCV network and provided a map and listing of those routes.

All of the proposed routes are on the NN, which is comprised of the Interstate Highway System and routes designated as qualifying Federal-aid Primary System highways. Combinations with a cargo-carrying length of 81.5 feet or less may use all NN routes. Combinations with a cargo-carrying length over 81.5 feet are restricted to the Interstate System and the routes listed in 23 CFR part 658, Appendix C. This listing of routes is applicable to both double trailers and triple trailers.

There were errors in the tables published in the “Background” section of the NPRM, on page 2075, regarding existing and proposed routes of operation for LCVs and trucks in excess of the lengths designated by the Surface Transportation Assistance Act (STAA) of 1982 for use on the NN. The route segments that were incorrect include a portion of US 14 and US 14B in Pierre, South Dakota. In addition, incorrect mileage is shown on several existing and proposed routes. The correct routes were provided to FHWA in a letter from the SDDOT dated June 6, 2018, which was added to the docket for this rulemaking. Nevertheless, all routes identified in the regulatory text of the NPRM were correct and included both existing and proposed routes of operation for LCVs and trucks over STAA lengths on the NN.

The FHWA finds that this update shifts routes to divided highways or does not increase centerline miles by more than 5 percent and is expected to increase safety performance. Based on this information and the comments received, FHWA is revising the Federal Regulations at 23 CFR part 658, Appendix C for vehicles covered by 23 U.S.C. 127(d) (LCVs), and 49 U.S.C. 31112 (CMVs with two or more cargo-carrying units), in the State of South Dakota.

The revised routes are as follows:

The FHWA received eight comments to the docket in response to the NPRM. Comments were submitted by two individuals, one State government agency (SDDOT), and four industry associations (the American Trucking Associations, the South Dakota Trucking Association, the South Dakota Agri-Business Association, and the South Dakota Retailers Association), and one trucking company.

A majority of the commenters expressed strong support for the proposed revisions, while one individual commenter opposed the proposed additional routes and length allowances.

Commenters in support of the updated routes expressed their opinion that the additional routes would overall improve highway safety and efficiency. One commenter thought the additional routes pose a safety threat to the driving public if the LCVs were to be allowed to operate along mixed travel lanes, but this commenter did not provide any data in support of this assertion.

The owner and operator of the highway system in South Dakota, SDDOT, presented a Safety Assessment in its June 6, 2018, letter addressing how it concludes the expanded access would improve traffic safety. The SDDOT asserted, for example, that hauling with LCVs would reduce the number of vehicles needed to carry payload, proportionally reducing the number of crashes, and that expanding the number and extent of routes would allow LCVs to take more direct and suitable routes, reducing miles traveled, accident exposure, fuel consumption, and vehicle emissions. The letter also concludes that none of the rural segments demonstrate unusual crash histories indicating marginal or hazardous operating conditions for commercial vehicles. The FHWA concurs with this Safety Assessment.

Based on the comments received, the SDDOT transmittal letter of June 6, 2018, and the authority provided in FAST Act Section 5516 for the State of South Dakota, FHWA concurs with the additional routes and vehicles as proposed by the SDDOT, for addition to 23 CFR part 658, appendix C.

The FHWA has determined that this action does not constitute a significant regulatory action within the meaning of Executive Order (E.O.) 12866 or within the meaning of DOT regulatory policies and procedures. The amendments update and revise the routes of the vehicles covered by 23 U.S.C. 127(d) (LCVs), and 49 U.S.C. 31112 (CMVs with two or more cargo-carrying units), in South Dakota, as found in 23 CFR part 658, appendix C. In addition, this action complies with the principles of E.O. 13563. After evaluating the costs and benefits of these amendments, FHWA finds that the economic impact of this rulemaking would be minimal. These changes are not anticipated to adversely affect, in any material way, any sector of the economy. In addition, these changes will not create a serious inconsistency with any other agency's action or materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. The FHWA anticipates that the economic impact of this rulemaking will be minimal; therefore, a full regulatory evaluation is not necessary. Finally, this rule is not an E.O. 13771 regulatory action because it is not significant under E.O. 12866.

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354; 5 U.S.C. 60l-612), FHWA has evaluated the effects of this action on small entities, such as local governments and businesses. Based on the evaluation, FHWA anticipates that this action would not have a significant economic impact on a substantial number of small entities. The proposed amendments would update the routes of the vehicles covered by 23 U.S.C. 127(d) (LCVs), and 49 U.S.C. 31112 (CMVs with two or more cargo-carrying units), in South Dakota, as found in 23 CFR part 658, appendix C. Therefore, I certify that this action would not have a significant economic impact on a substantial number of small entities.

The FHWA has determined that this action would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). The actions in this final rule would not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $155 million or more in any 1 year (when adjusted for inflation) in 2014 dollars for either State, local, and Tribal governments in the aggregate, or by the private sector.

The FHWA has analyzed this rule in accordance with the principles and criteria contained in E.O. 13132. The FHWA has determined that this action would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA has also determined that this action would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program. This E.O. applies because State and local governments would be directly affected by the regulation, which is a condition of Federal highway funding. Local entities should refer to the Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction, for further information.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq. ), Federal agencies must obtain approval from the Office of Management and Budget for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that the rule does not contain collection of information requirements for the purposes of the PRA.

The FHWA has analyzed this rule for the purposes of the National Environmental Policy Act (NEPA) (42 U.S.C. 4321, et seq. ). Agencies are required to adopt implementing procedures for NEPA that establish specific criteria for, and identification of, three classes of actions: Those that normally require preparation of an Environmental Impact Statement; those that normally require preparation of an Environmental Assessment; and those that are categorically excluded from further NEPA review (40 CFR 1507.3(b)). The action is the amendment to the routes listed for vehicles covered by 23 U.S.C. 127(d) (LCVs), and 49 U.S.C. 31112 (CMVs with two or more cargo-carrying units) in South Dakota as found in 23 CFR part 658, Appendix C, as allowed by Section 5516 of the FAST Act. This action qualifies for categorical exclusions under 23 CFR 771.117(c)(20) (promulgation of rules, regulations, and directives). The FHWA has evaluated whether the action would involve unusual circumstances or extraordinary circumstances and has determined that this rulemaking action would not involve such circumstances. As a result, FHWA finds that this rulemaking would not result in significant impacts on the human environment.

The FHWA has analyzed this rule under E.O. 13175, and believes that it would not have substantial direct effects on one or more Indian Tribes, would not impose substantial direct compliance costs on Indian Tribal governments, and would not preempt Tribal law. This rule would not impose any direct compliance requirements on Indian Tribal governments nor would it have any economic or other impacts on the viability of Indian Tribes. Therefore, a Tribal summary impact statement is not required.

The FHWA has analyzed this rule under E.O. 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. The FHWA has determined that this action is not a significant energy action under the E.O. and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required.

The FHWA has analyzed this rule under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. The FHWA does not anticipate that this action would affect a taking of private property or otherwise have taking implications under E.O. 12630.

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

The FHWA has analyzed this action under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this action would not cause an environmental risk to health or safety that may disproportionately affect children.

A Regulation Identifier Number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Regulatory and Deregulatory Actions. The Regulatory Information Service Center publishes the Unified Agenda in the spring and fall of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

In consideration of the foregoing, FHWA amends 23 CFR part 658 as follows:

The United States Parole Commission is adopting final rules to amend its rules describing the delegation to hearing examiners in § 2.23 and also the hearing procedures for prisoners transferred pursuant to treaty in § 2.68. The amendments are part of our ongoing effort to make our rules easier to understand for those persons affected by the rules and other interested persons and organizations.

More specifically, both of these rule amendments involve the term “Executive Hearing Examiner.” This term is not defined in the regulations and is not clearly translatable to the agency. The agency has interpreted the term to refer to the role of the person who is reviewing the case as the second hearing examiner, and not the actual title of a person's position. Therefore, whomever is reviewing the case as a second hearing examiner, is considered the Executive Hearing Examiner. An amendment of the regulations that removes the reference to the Executive Hearing Examiner will help clarify that any of the agency's hearing examiners can be the second vote on the hearing examiner panel, and there is no requirement for someone with the title of Executive Hearing Examiner or a senior hearing examiner to review the case before it is submitted to the Commission.

In the notice of proposed rulemaking, we encourage the public to comment on our proposed changes. However, regarding these final rule amendments, only the terminology is changed and the term “Executive Hearing Examiner” is removed for clarity. The way that the actual hearings are conducted, and by whom, is not affected by these rule amendments. Thus, public comment is not required in this matter and the amended rules will take effect upon publication in the Federal Register .

These regulations have been drafted and reviewed in accordance with Executive Order 12866, “Regulation Planning and Review,” section 1(b), Principles of Regulation, and in accordance with Executive Order 13565, “Improving Regulation and Regulatory Review,” section 1(b), General Principles of Regulation. The Commission has determined that these rules are not a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly these rules have not been reviewed by the Office of Management and Budget.

These rules will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, these rules do not have sufficient federalism implications requiring a Federalism Assessment.

These rules will not have a significant economic impact upon a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 605(b).

These rules will not cause State, local, or tribal governments, or the private sector, to spend $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. No action under the Unfunded Mandates Reform Act of 1995 is necessary.

None of these rules are a “major rule” as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 Subtitle E-Congressional Review Act, now codified at 5 U.S.C. 804(2). These rules will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on the ability of United States-based companies to compete with foreign-based companies. Moreover, these are rules of agency practice or procedure that does not substantially affect the rights or obligations of non-agency parties, and does not come within the meaning of the term “rule” as used in Section 804(3)(C), now codified at 5 U.S.C. 804(3)(C). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Accordingly, the U. S. Parole Commission adopts the following revisions to 28 CFR part 2 as set forth below:

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 U.S.C. United States Code II. Background Information and Regulatory History

On May 15, 2019, Red Bull North America notified the Coast Guard that it will be holding a Red Bull Flugtag event on the Upper Mississippi River at Harriett Island Park in St. Paul, MN from 11 a.m. to 4 p.m. on September 7, 2019. Flugtag is a homemade, non-powered flying machine competition. Contestants launch their machines from a 22 feet high platform built over the Upper Mississippi River. Potential hazards from this event include the temporary installation of a structure along the right descending bank of the river, temporary channel obstructions until the Flugtag machines are recovered from the river, and the presence of debris and persons in the water within the event perimeter. In response, on June 14, 2019 the Coast Guard published a notice of proposed rulemaking (NPRM) titled Special Local Regulations, Upper Mississippi River, St. Paul MN. (84 FR 27743). During the comment period that ended July 15, 2019 we received three comments.

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 the regulated area must be established by September 7, 2019 to ensure the safety of vessels, persons, and the navigable waters in the regulated area before, during, and after the scheduled event.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The purpose of this rule is to ensure the safety of vessels, persons, and the navigable waters in the regulated area before, during, and after the scheduled event.

The Coast Guard received three comments in response to the NPRM.

The sponsor for the event submitted a comment via email requesting to extend the duration of the regulated area from 8 a.m. to 5 p.m. to account for the setup and break down of the event. As a result of this email, the duration of the regulated area has been extended.

Another comment was received from an industry representative in regards to maintaining proper patrol vessel span of control to ensure the safety of not only the spectators and the participants, but anyone wishing to transit in the area. He cited issues experienced during a previous event. Additionally, the duration of the waterway closure was a concern as it would hinder commercial transit on the waterway. The Coast Guard acknowledges the concerns based on previous events of similar nature and the need to ensure an adequate number of patrol craft to enforce these regulations. The Coast Guard is working very closely with our port partners and law enforcement agencies to ensure adequate resources are available to maintain the safety of the event. Additionally, the Coast Guard is modifying the rule as proposed in the NPRM to establish a total of three zones. The primary and secondary exclusion areas will be closed to general vessel traffic from 8 a.m. to 5 p.m., however, the spectator zone which encompasses the majority of the river width in the regulated area will only be regulated from 10:30 a.m. to 4:30 p.m. The zones will be described in detail in the actual text of this temporary final rule.

Another comment was received from the president of a business that operates passenger vessels in the area of the Flugtag event. This person was concerned about their ability to safely operate around the estimated 300 spectator vessels that could be on the waterway. As a result of this comment, the Coast Guard adjusted the special local regulation restrictions from those proposed in the NPRM to provide for a safe passenger vessel transit area throughout the duration of the event as detailed below.

With consideration to the comments received, the Coast Guard is establishing special local regulations on specified waters of the Upper Mississippi River on September 7, 2019. The regulated area extends from mile marker 839.5 to 840.5 across the entire width of the Upper Mississippi River. The regulations will be effective from 8 a.m. to 5 p.m. for the primary and secondary exclusion areas as described below. The designated spectator area will be regulated from 10:30 a.m. to 4:30 p.m.

Within the overall regulated area, there are three unique areas, each with their own specific restrictions. The areas are as follows: A primary exclusion area, a secondary exclusion area, and a designated spectator area.

The primary exclusion area, where all persons and vessels, except those persons and vessels participating in the competition, are prohibited from entering, transiting through, anchoring in, or remaining within, is established within lines connecting the following points: From point one, at position latitude 44°56′23″ N, longitude 93°05′44″ W to point two at position latitude 44°56′24″ N, longitude 93°05′46″ W; from point two to point three at position latitude 44°56′18″ N, longitude 93°05′54″ W; and from point three to point four at position latitude 44°56′17″ N longitude 93°05′52″ W. This area will be enforced from 8 a.m. to 5 p.m.

The secondary exclusion area, where all persons and vessels, except commercial vessels are prohibited from entering, anchoring in, or remaining within, with the exception of continuous transverse travel across the area, is established within lines connecting the following points: From point five, at position latitude 44°56′17″ N, longitude 93°05′52″ W; to point six at position latitude 44°56′18″ N, longitude 93°05′54″ W; from point six to point seven at latitude 44°56′00″ N, longitude 93°06′15″ W; from point seven to point eight on latitude 44°55′57″ N, longitude 93°06′12″ W. This area will be enforced from 8 a.m. to 5 p.m.

The designated spectator area is located between mile markers 840.5 and 839.5, outside of the primary and secondary exclusion areas. All vessels are prohibited from transiting in excess of idle speed, unless authorized by the Coast Guard Patrol Commander. Spectator vessels are authorized to enter, transit through, anchor in, or remain within all waters of the spectator area from 10:30 a.m. until 4:30 p.m. Vessels other than spectator vessels and those directly involved in the event will only be allowed to safely transit the regulated area when the Coast Guard Patrol Commander has deemed it safe to do so. All spectator vessels must disperse from the navigational channel by 4:30 p.m. at which time the standard navigation rules will be enforced.

Due to the need for vessel control during the event, the Coast Guard will temporarily restrict vessel traffic in the regulated exclusion area to provide for the safety of participants, spectators and other transiting vessels. The Coast Guard will provide notice of the special local regulations by Local Notice to Mariners (LNM), Broadcast Notice to mariners (BNM) and press release.

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 data collected from previous events in regards to the risk associated with this event.

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 received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the regulated area 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 due to the event taking place for one day, for a only a nine hour period and on a one mile stretch of the Upper Mississippi River.

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.

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 special local regulation lasting nine hours that will prohibit entry of vessels at certain zones on certain waters of the Upper Mississippi River. It is categorically excluded from further review under paragraph L61 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 100 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register LLNR Light List Number NPRM Notice of proposed rulemaking Pub. L. Public Law § 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 due to the lack of sufficient time to provide a reasonable comment period and consider those comments before issuing the rule and establishing the security zone by August 27, 2019.

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 protect the area surrounding the LA World Cruise Center, public vessels moored, and the people attending the event.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port, Sector Los Angeles—Long Beach (COTP) has determined that potential hazards associated with the event security may arise due to the expected high concentration of people in attendance for the event, including potential visits from dignitaries and VIP participants, within the main shipping channel of the nation's most economically vital port complex. There is increased awareness regarding recent national and worldwide events that have demonstrated direct threats to the security of large crowds in attendance for various high profile events. For these reasons the Coast Guard believes that a temporary security zone is necessary to ensure the safety of, and reduce the risk to, the public, and mariners, in the Port of Los Angeles.

This rule establishes a temporary security zone from midnight on August 27, 2019 through 11:59 p.m. on September 3, 2019, encompassing all navigable waters from the surface to the sea floor consisting of a line connecting the following coordinates: 33°44.921′ N, 118°16.701′ W; 33°44.818′ N, 118°16.494′ W; 33°44.626′ N, 118°16.590′ W; 33°44.609′ N, 118°16.485′ W; 33°44.768′ N, 118°16.393′ W; 33°44.908′ N, 118°16.475′ W; and 33°44.966′ N, 118°16.665′ W. All coordinates displayed are referenced by North American Datum of 1983, World Geodetic System, 1984.

No vessel or person is permitted to operate in the security zone without obtaining permission from the COTP or the COTP's designated representative. A designated representative is a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, and local officer designated by or assisting the COTP in the enforcement of the security zone. To seek permission to enter, hail Coast Guard Sector Los Angeles—Long Beach on VHF-FM Channel 16 or call at (310) 521-3801. Those in the security zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative. Upon being hailed by a Coast Guard vessel or designated representative, by siren, radio, flashing light or other means, the operator of the vessel shall proceed as directed.

The general boating public will be notified prior to the enforcement of the temporary security zone via Broadcast Notice to Mariners.

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

E.O.s 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) 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 including potential economic, environmental, public health and safety effects, distributive impacts, and equity. E.O.13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs” directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

This regulatory action determination is based on the size, location, and duration of the security zone. Although this rule restricts access to the waters encompassed by the temporary security zone, the local waterway users will be notified via public Broadcast Notice to Mariners and will be able to plan their route in advance, which will minimize the access restriction. The entities most likely to be affected are waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities.

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 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 E.O. 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 E.O. 13132.

Also, this rule does not have tribal implications under E.O. 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 Management 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 security zone encompassing an area around the Los Angeles Fleet Week events. Such actions are categorically excluded from further review under paragraph L60 (a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. An environmental analysis checklist supporting this determination and Record of Environmental Consideration (REC) are 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 addresses 33 CFR part 165 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Detroit 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 doing so would be impracticable. The Coast Guard did not receive the final details of this fireworks display in time to publish an NPRM. As such, it is impracticable to publish an NPRM because we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule. Furthermore, immediate action is needed to allow the Coast Guard to enhance the safety of this event.

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 inhibit the Coast Guard's ability to protect participants, mariners and vessels from the hazards associated with this event.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Detroit (COTP) has determined that potential hazard associated with fireworks from 9:30 p.m. through 10 p.m. on August 31, 2019 will be a safety concern to anyone within a 120-yard radius of the launch site. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the fireworks are being displayed.

This rule establishes a safety zone from 9:30 p.m. through 10 p.m. on August 31, 2019. The safety zone will encompass all U.S. navigable waters of the Detroit River, Detroit, MI, within a 120-yard radius of position 42°19.529′ N, 083°02.436′ W (NAD 83). 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 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, duration, and time-of-year of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of the Detroit River from 9:30 p.m. through 10 p.m. on August 31, 2019. Moreover, the Coast Guard will issue Broadcast Notice to Mariners (BNM) via VHF-FM marine channel 16 about the zone and the rule allows 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 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 one and a half hours on two nights that will prohibit entry into a designated area. It is categorically excluded from further review under paragraph L[60](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 doing so would be impracticable. The Coast Guard did not receive the final details of this fireworks display in time to publish an NPRM. As such, it is impracticable to publish an NPRM because we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule. Furthermore, immediate action is needed to allow the Coast Guard to enhance the safety of this event.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Detroit (COTP) has determined that potential hazard associated with fireworks from 8 p.m. through 8:30 p.m. on October 16, 2019 will be a safety concern to anyone within a 120-yard radius of the launch site. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the fireworks are being displayed.

This rule establishes a safety zone from 8 p.m. through 8:30 p.m. on October 16, 2019. The safety zone will encompass all U.S. navigable waters of the Detroit River, Detroit, MI, within a 120-yard radius of position 42°19.529′ N, 083°02.436′ W (NAD 83). 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 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, duration, and time-of-year of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of the Detroit River from 8 p.m. through 8:30 p.m. on October 16, 2019. Moreover, the Coast Guard will issue Broadcast Notice to Mariners (BNM) via VHF-FM marine channel 16 about the zone and the rule allows 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 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 one and a half hours on two nights that will prohibit entry into a designated area. It is categorically excluded from further review under paragraph L[60](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 “we,” “us,” and “our” refer to the EPA.

On June 11, 2019, the EPA proposed approval of revisions to the Missouri SIP in the Federal Register that amend a rule relating to reference methods for determining ambient air/atmosphere data and information necessary for the enforcement of air pollution control regulations throughout Missouri. See 84 FR 27053. The EPA solicited comments on the proposed revision to Missouri's SIP, and did not receive any comments.

The EPA is approving a revision to Missouri's SIP by approving the state's request to revise 10 CSR 10-6.040, Reference Methods, received January 14, 2019. Specifically, the revision updates the state's incorporation by reference of all reference methods found in 40 CFR part 50 appendices A through R, as well as equivalent methods as specified in 40 CFR part 53. The 40 CFR part 50 appendices describe the methods for measuring ambient concentrations of various pollutants for which NAAQS have been established. In addition, the revision updates American Society for Testing and Materials (ASTM) standards and includes numerous ASTM standards that are referenced in separate state rules.

A detailed discussion of Missouri's SIP revision was provided in the EPA's June 11, 2019, Federal Register document and in a Technical Support Document (TSD) that is available in the docket for this action. See 84 FR 27053.

The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The state provided public notice on this SIP revision from June 25, 2018 to August 2, 2018 and received zero comments. In addition, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

We are taking final action to approve the revisions to 10 CSR 6.040, Reference Methods.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Missouri Regulations described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

Therefore, these materials have been approved by the EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive 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 the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; 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 the 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 section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 21, 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 section 307(b)(2)).

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as set forth below:

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

On June 11, 2019, the EPA proposed to approve revisions to the Missouri SIP and Operating Permits Program in the Federal Register . See 84 FR 27055. The proposed revisions added definitions, removed language referring to outdated emission fees, and updated incorporations by reference in the rule. The EPA solicited comments on the proposed revisions to Missouri's SIP and Operating Permits Program, and received one comment. The comment was not related to the proposed rule and therefore a response is not required.

The EPA is approving a revision to Missouri's SIP by approving the state's request to revise 10 CSR 10-6.110, Reporting Emission Data, Emission Fees, and Process Information, received January 15, 2019. Missouri revised 10 CSR 10-6.110 to correct minor typographical errors.

A detailed discussion of the revision to Missouri's SIP and Operating Permits Program was provided in EPA's June 11, 2019, Federal Register doument. See 84 FR 27055.

The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The state provided public notice on this SIP revision from June 25, 2018, to August 2, 2018, and received comments from the EPA and a regulated entity. The state adequately addressed the public comments. In addition, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

We are taking final action to approve the revisions to Missouri's SIP and Missouri's Operating Permits Program by approving the state's request to revise 10 CSR 10-6.110, Reporting Emission Data, Emission Fees, and Process Information.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Missouri Regulations described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

Therefore, these materials have been approved by the EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive 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 the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; 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 the 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 section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 21, 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 section 307(b)(2)).

For the reasons stated in the preamble, the EPA amends 40 CFR parts 52 and 70 as set forth below:

I. General Information A. Does this action apply to me?

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(g), 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-2017-0487 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 October 21, 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-2018-0244, 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 July 24, 2018 (83 FR 34968) (FRL-9980-31), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 8F8670) by Monsanto Company (now known as Bayer Crop Science LP), 800 N. Lindbergh Blvd., St. Louis, MO 63167. The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of LCO MOR116 in or on all food commodities. That document referenced a summary of the petition prepared by the petitioner, Monsanto Company (now known as Bayer Crop Science LP), which is available in the docket via http://www.regulations.gov. There were no comments received in response to the notice of filing.

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 in residential settings but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or tolerance exemption, 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 . . . .” Additionally, FFDCA section 408(b)(2)(D) requires that EPA consider “available information concerning the cumulative effects of [a particular pesticide's] . . . residues and other substances that have a common mechanism of toxicity.”

EPA evaluated the available toxicity and exposure data on LCO MOR116 and considered its validity, completeness, and reliability, as well as the relationship of this information to human risk. EPA also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

LCO MOR116 a synthetically derived member of the lipochitooligosaccharide (LCO) chemical class. Naturally occurring LCOs function as signaling molecules in the initiation of plant-microbe endosymbioses in an estimated 70-80% of land plants. As a biopesticide, LCO MOR116 is intended to be used as a plant growth regulator (PGR) to increase growth and decrease stress in growing crops. LCO MOR116 has low acute toxicity, low subchronic toxicity and is not a skin sensitizer or mutagen based on the toxicity information presented for the active ingredient and structurally-similar compounds. Dietary and drinking water exposure to LCO MOR116 is not expected for the proposed use as a seed treatment for soybean and application rates are expected to be very low (5.89 X 10-11 lb ai/lb seed). Although no field trial or residue data are available, significant residues are not expected and, therefore, quantitative dietary and drinking water assessments were not conducted.

There are currently no residential uses proposed for LCO MOR116. There is a potential for occupational exposure, however, no toxicological endpoints have been identified. The Agency has determined that no further acute or subchronic toxicity studies are needed at this time considering all the available hazard and exposure data on LCOs and structurally similar compounds. Based on the available toxicity and exposure information, no unreasonable adverse effects to the U.S. population in general, and to infants and children in particular, will result from the use of LCO MOR116 as a pesticide when label instructions are followed.

An explanation of the data upon which EPA relied and its risk assessment based on those data can be found within the (July 30, 2019), document entitled “Federal Food, Drug, and Cosmetic Act (FFDCA) Safety Assessment for Exemption from the Requirement of a Tolerance for Residues of Lipochitooligosaccharide (LCO) MOR116.” This document, as well as other relevant information, is available in the docket for this action as described under ADDRESSES .

Based on its safety determination, EPA is establishing an exemption from the requirement of a tolerance for residues of LCO MOR116 in or on all food commodities when used on accordance with label directions and good agricultural practices.

An analytical method is not required for enforcement purposes due to lack of concern for exposures, which supports the establishment of an exemption for residues of LCO MOR116.

This action establishes a tolerance exemption under FFDCA section 408(d) in response to a petition submitted to EPA. 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), nor is it a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). 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 exemption in this action, 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. As a result, this action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, EPA 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, EPA 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 EPA's 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 Report and Order as part of the Commission's Report and Order and Second Further Notice of Proposed Rulemaking in WC Docket Nos. 11-10 and 19-195, FCC 19-79, adopted August 1, 2019 and released August 6, 2019. The full text of this document is available for public inspection during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW, Room CY-A257, Washington, DC 20554. It also is available on the Commission's website at https://www.fcc.gov/document/fcc-improves-broadband-mapping-0. This document contains new and modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, will invite the general public to comment on the information collection requirements contained herein as required by the Paperwork Reduction Act of 1995, Public Law 104-13. The effective date for paragraphs 44 through 51 and 57 through 65 of the Report and Order and the addition of 47 CFR 54.1401 and 54.1402(b) and (c), (d)(2), and (e), will be effective 30 days after the announcement in the Federal Register of Office of Management and Budget (OMB) approval of information collection requirements modified in the Report and Order and the effective date for the CFR additions.

1. Accurate broadband deployment data is critical to the Commission's efforts to bridge the digital divide. Effectively targeting federal and state spending efforts to bring broadband to those areas most in need of it means understanding where broadband is available and where it is not. The census-block level fixed broadband service availability reporting the Commission currently requires has been an effective tool for helping the Commission target universal service support to the least-served areas of the country, but has made it difficult for the Commission to direct funding to the “gaps” in broadband coverage—those areas where some, but not all, homes and businesses have access to modern communications services.

2. We therefore initiate a new data collection, the Digital Opportunity Data Collection, that is distinct from the existing Form 477 collection and that will gather geospatial broadband service availability data specifically targeted toward advancing our universal service goals. Pursuant to the Digital Opportunity Data Collection, we require all broadband service providers to submit granular maps of the areas where they have broadband-capable networks and make service available. Given the Commission's ongoing investigation into the coverage maps of one or more major mobile operators, we limit the new data collection obligations to fixed broadband providers at present and seek comment on how best to incorporate mobile wireless coverage data into the Digital Opportunity Data Collection.

3. Service providers—who are uniquely situated to know where their own networks are deployed—must determine in the first instance the availability of broadband in their service areas, taking into account their individual circumstances and their on-the-ground knowledge and experience. At the same time, to complement this granular broadband availability data, we adopt a process to begin collecting public input, sometimes known as “crowdsourcing,” on the accuracy of service providers' broadband deployment data. Through this new tool, State, local, and Tribal governmental entities and members of the public will be able to submit fixed broadband availability data, leveraging their experience concerning service availability. In addition, because we leave in place for now the existing Form 477 data collection, we make targeted changes to reduce reporting burdens for all providers by removing and clarifying certain requirements and modifying the collection.

5. First established in 2000, the Commission's Form 477 began as a collection of subscription and connection data for local telephone and broadband services that helped the Commission to, among other things, meet statutory annual reporting obligations and monitor local voice competition. Over time, the Form 477 data collection has evolved into the primary data source for many Commission actions, including reporting to Congress and the public about the availability of broadband services, informing transaction reviews, and supporting our universal service policies. At the same time, it has become increasingly clear that the fixed and mobile broadband deployment data collected on the Form 477 are not sufficient to understanding where universal service support should be targeted and supporting the imperative of our broadband-deployment policy goals.

6. For purposes of broadband deployment reporting, the Commission currently requires fixed providers to report the census blocks in which their broadband service is available. Fixed broadband connections are available in a census block “if the provider does, or could, within a service interval that is typical for that kind of connection—that is, without an extraordinary commitment of resources—provision two-way data transmission to and from the internet with advertised speeds exceeding 200 kbps in at least one direction to end-user premises in the census block.” However, census-block based fixed deployment data have limitations—providers report whether or not fixed broadband service is available in at least some part of each census block, but not whether there is availability at all areas within a block.

7. Providers of fixed voice and broadband service report on their end-user subscriptions by submitting the total number of connections in each census tract in which they provide service. Providers of mobile voice and broadband service report their total subscribers for each state in which they provide service to customers. Facilities-based providers of mobile broadband service report on deployment by submitting, for each technology and frequency band employed, polygons in geographic information system (GIS) mapping files that digitally represent the geographic areas in which a customer could expect to receive the minimum speed the service provider advertises for that area. In addition, mobile service providers must report the census tracts in which their service is advertised and available to potential customers.

8. In establishing the Form 477 as its primary vehicle for collecting information about the deployment of broadband services, the Commission predicted that the data from the Form 477 would “materially improve” its ability to develop, evaluate, and revise broadband policy, as well as provide valuable benchmarks for Congress, the Commission, other policymakers, and consumers. In its comments in this proceeding, the National Telecommunications and Information Administration (NTIA) states that its analysts “routinely refer to the Commission's Form 477 data, including both deployment and subscription data, to help inform policymakers and enhance [its] technical support of broadband infrastructure investment.” The Commission has used aggregate broadband data reported by providers on Form 477 to, among other things: (1) Meet our statutory obligation to annually report on the state of broadband availability; (2) update our universal service policies and monitor whether our universal service goals are being achieved in a cost-effective manner; (3) meet our public safety obligations; and (4) maintain coverage maps to inform stakeholders, including industry and the public.

9. In an effort to collect and develop better quality, more useful, and more granular broadband deployment data, the Commission adopted the 2017 Data Collection Improvement FNPRM in August 2017. In the 2017 Data Collection Improvement FNPRM, the Commission sought comment on: (1) Ways in which the Commission might increase the quality and accuracy of the broadband information we collect; and (2) ways in which the Commission might streamline its broadband reporting requirements and thereby reduce the burdens on filers. The Commission also noted that one of its primary objectives is to ensure that the data collected will be closely aligned with the uses to which they will be put, and sought comment on those uses to inform our analysis. In response, we received a voluminous amount of comments, reply comments, and ex parte presentations with specific recommendations on how best to improve our broadband reporting process.

10. As the record in this proceeding amply demonstrates, there is a compelling and immediate need to develop granular, high-quality fixed broadband deployment data to improve our ability to target support from our Universal Service Fund (USF) programs. It has become increasingly clear that the fixed and mobile broadband deployment data collected on the Form 477 are not sufficient to support the specific imperative of our USF policy goals. We conclude that in order to continue to advance our statutory universal service obligations, it is necessary to create a new data collection, calculated to produce broadband deployment maps that will allow the Commission to precisely target scarce universal service dollars to where broadband service is lacking. In the 2017 Data Collection Improvement FNPRM, the Commission sought comment on requiring more granularity in fixed broadband deployment data, noting that it collected location-level data from recipients of USF funding to assess whether they are meeting their buildout requirements, and that this more granular data had been “extremely useful” in understanding issues surrounding fixed broadband deployment in these contexts. We find that establishing a new collection requiring fixed providers to submit maps of the areas in which their service is available is the best way to meet those needs expeditiously.

11. We therefore direct the Universal Service Administrative Company (USAC), under the oversight of the Commission's Office of Economics and Analytics (OEA), the Wireline Competition Bureau (WCB), Wireless Telecommunications Bureau (WTB), and the International Bureau (IB), to develop a new portal to accept broadband coverage maps (polygons) from fixed providers, as well as public feedback on the accuracy of these broadband maps. For the time being, we leave the current Form 477 in place, subject to several modifications that eliminate collection of unnecessary data, and seek comment on whether we should sunset some or all of the Form 477 deployment collection. We believe the Form 477 deployment data will continue to be a useful reference point for its existing purposes as well as in relation to the new Digital Opportunity Data Collection. Accordingly, we generally preserve the Form 477 instructions for submitting fixed broadband deployment data, except as may be required to implement the streamlining and other changes set forth below.

12. We require all fixed providers to submit broadband coverage polygons depicting the areas where they actually have broadband-capable networks and make fixed broadband service available to end-user locations. The filings must reflect the maximum download and upload speeds actually made available in each area, the technology used to provide the service, and a differentiation between residential-only, business-only, or residential-and-business broadband services. Fixed providers in the new collection must submit a broadband coverage polygon for each combination of download speed, upload speed, and technology. Where fixed providers offer different maximum speeds to residential and business customers, even if using the same network facilities, they must file separate polygons. Where the offered speed varies by location or distance from network facilities, fixed providers must submit separate polygons to reflect those differing maximum offered speeds.

13. For purposes of the Digital Opportunity Data Collection, service is actually available in an area if the reporting fixed provider has a current broadband connection or it could provide such a connection within ten business days of a customer request, without an extraordinary commitment of resources, and without construction charges or fees exceeding an ordinary service activation fee. The filer must be able to establish a connection within this timeframe to every end-user location contained in the reported broadband coverage polygon. Under this standard, a fixed provider must have fiber or cable in place proximate, if not connected, to the locations within its reported polygons—for example, we expect a residence would be included only if the utility pole or conduit on the right of way adjacent to the residence is already wired and awaiting just a drop cable; additional buildout of the network would represent an extraordinary commitment of resources. A fixed wireless provider must have already installed enough base stations to cover and meet reasonably anticipated customer capacity demands; the installation of an additional base station, for example, would constitute an extraordinary commitment of resources. Fixed broadband services are not actually available for purposes of the Digital Opportunity Data Collection in any area where the filer does not meet this standard.

14. Although we agree with commenters that it would be ideal for providers to have more precise technical standards to follow in determining whether fixed broadband is available in an area (for example, defining availability based on specific proximity to network facilities), we find insufficient evidence currently in the record to prescribe such technical standards. Without additional information, we risk setting under- and over-inclusive technical standards, likely to result in the drawing of less accurate maps. We therefore seek comment in the Second Further Notice of Proposed Rulemaking ( Second FNPRM ) in this item about what standards fixed providers should use to establish the broadband coverage polygons.

15. We direct OEA to oversee USAC in developing the new online portal and the filing processes that will enable fixed providers to submit broadband coverage polygons. We also direct OEA, in consultation with WCB, IB, WTB, and USAC, to carry out the implementation details of the new collection including (but not limited to): (1) Publishing complete instructions for filing data and issuing an order, based on the record received in response to the Second FNPRM, that designates the precise specifications for the broadband coverage polygons, subject to the constraints laid out herein; (2) modifying (as needed) the list of fixed-broadband technologies that should be reported in the new collection; and (3) defining the GIS compatible file format(s) in which fixed providers will be required to submit their polygons, taking into account any potential burdens on filers.

16. This new data collection will take effect after the release of the order designating the specifications for the coverage polygons, and after OEA issues a public notice announcing the availability of the new collection platform and the reporting deadlines. Fixed broadband service providers must file initial service availability reports within six months of the public notice announcing availability of the new collection platform. Fixed providers also must submit updates within six months of completing new broadband deployments; making changes to (including upgrading or discontinuing) existing offerings; or otherwise acquiring new, or selling existing, broadband-capable network facilities that affect the data submitted on their Digital Opportunity Data Collection filings. Service providers that become subject to filing requirements subsequent to the initial filing deadline must file initial service availability reports within six months of becoming so obligated and must report data from that initial period. Failure to timely file the new collection data may lead to enforcement action and/or penalties as set forth in the Communications Act and other applicable laws. In addition, fixed providers must revise their filings any time they discover a significant reporting error in the original broadband deployment data that they submit. An appropriate official of each filer must include with any filing a certification that the filer's service availability data is true and accurate to the best of the certifying official's knowledge and must report the title of the certifying official. Filers must additionally certify on or before June 30 of each calendar year that as of December 31 of the previous year, all of the filer's service availability data continues to be accurate, taking into account the filer's data that has been updated during the calendar year.

17. In order to ensure an accurate and detailed picture of broadband deployment, we require all fixed providers to make the required Digital Opportunity Data Collection filings, although we direct WCB, in coordination with OEA, WTB, and IB, to determine whether any category of very small fixed providers ( e.g., those with less than 250 subscribers and who are not eligible telecommunications carriers (ETCs) under the USF program) should have additional time in filing their initial reports. We note that any service provider must nevertheless timely file in order to be eligible to participate in any USF program and those that fail to file in a timely manner risk their service areas being deemed unserved in future USF decisions.

18. Incorporating Public Input into Broadband Coverage Maps. Collecting broadband coverage polygons will allow fixed providers to apply their expertise concerning their networks and service areas to define their service coverages in the first instance. However, input from the people who live and work in the areas that a service provider purports to serve also plays a vital role in ensuring the quality of these maps, helping to identify areas where the data submitted do not align with the reality on the ground. We therefore direct OEA to work with USAC to create an online portal for local, state, and Tribal governmental entities and members of the public to review and dispute the broadband coverage polygons filed by fixed providers under the new collection. This input will identify locations where a member of the public or a governmental entity indicates that the fixed provider is not able to provision broadband service despite the location being within a broadband coverage polygon. We also seek comment in the Second FNPRM about the types of data to be collected through this portal, how to treat crowdsourced data, and the procedures that fixed providers should follow if their broadband coverage polygons are disputed.

19. We believe that public input on fixed broadband service coverage will be most effective if some types of data collected in this process are routinely made available to the public. We therefore direct USAC to make public the information about the location that is the subject of the dispute—including the street address and/or coordinates (latitude and longitude) provided by the complainant, along with the name of the service provider(s) and any relevant details concerning the basis for challenging the reported fixed broadband coverage.

20. We direct USAC to make the crowdsourced data publicly available as soon as is practical after submission and direct OEA to work with USAC to establish an appropriate method for doing so. We do not specify a timeline for making such data publicly available but expect that there will be regular releases of crowdsourcing data. We direct USAC not to make publicly available private information submitted with the challenges. USAC may share such information (for example with the fixed provider about whom the dispute is being made) only to the extent it will be helpful to improve the quality of fixed broadband data reporting. We also direct USAC to develop mechanisms in the new platform to prevent malicious or unreliable filings, including automated mass filings.

21. Benefits of Reporting Service Availability Maps Clearly Outweigh the Filing Burdens on Fixed Providers. In establishing the Digital Opportunity Data Collection, we are cognizant of the need to ensure that the benefits resulting from use of the data outweigh the reporting burdens imposed on filers. We agree with commenters who contend that broadband coverage polygons will allow more granular analysis than the census-block data currently collected in the Form 477—and will do so with reasonable costs and burdens on fixed providers. We find that the approach we adopt, in which fixed providers will create broadband coverage polygons that depict their actual service areas, would, as NCTA asserts, “be a significant improvement over census-block reporting because unserved areas within served census blocks would no longer be counted as served.” In turn, more granular data about areas where broadband is available will enable us to target unserved locations more precisely, especially in many rural areas that continue to lack broadband service.

22. For now, we continue to maintain the collection of fixed broadband deployment data on Form 477 in census-block format. While there will be additional reporting burdens for fixed providers to supply broadband deployment data as part of the new collection and through the Form 477, this approach will ensure that we have continuous access to consistent broadband deployment data for the purposes for which we require it. Given that service providers are already accustomed to submitting census-block level data, and the census-block data is much less detailed than their Digital Opportunity Data Collection filings will be, the burden of continuing to also file census-block level data will be minimal.

23. We find that any additional burdens imposed by our new reporting approach will be relatively light for fixed providers in comparison to the significant benefit to be gained from more precise broadband deployment data. As an initial matter, many fixed providers already are familiar with the use of geospatial data because of its use in other contexts by the Commission and other federal and state agencies, thus making the transition reasonably simple. As Connected Nation notes, some fixed providers already have either internal GIS capabilities or have vendor relationships for the production of GIS files. In addition, Connected Nation suggests several online resources that can help fixed providers “create their own polygons of service availability, such as ESRI's ArcGIS software.” Connected Nation expresses concern, however, that small service providers will struggle to comply with the new polygon-based reporting requirements unless they get some assistance in the generation of accurate broadband coverage polygons. To lessen the burdens on all fixed providers, we direct OEA to oversee USAC in making service-desk help available, as well as providing clear instructions on the form for the new collection, to aid filers in preparing their broadband coverage polygons. We disagree with commenters, such as the Broadband Mapping Coalition, who contend that a map-based approach is a burdensome and insufficient fix to the problem of fixed broadband mapping. We also disagree with Alexicon, which argues that small fixed providers be allowed to report broadband deployment subject to a certain margin of error. Although we recognize the burdens imposed on small fixed providers (and all fixed providers) as a result of the Digital Opportunity Data Collection, we find that such burdens are outweighed by the need for more granular and precise fixed broadband deployment data—especially in rural areas where smaller providers are more likely to be providing service.

24. With regard to the benefits to be realized from the new collection, we find that the adoption of polygon-based reporting will enable crowdsourcing and similar approaches to act as a check on the deployment data submitted by fixed providers, which is not possible with census-block reporting. Rather than listing the census blocks where a fixed provider's broadband service is available, broadband coverage polygons will show the actual service areas covered by fixed broadband providers. This, in turn, will result in more precise information about where fixed broadband is available. The use of crowdsourcing to verify the polygon coverage areas submitted by fixed providers will further improve the validity of broadband deployment data.

25. Another critical benefit of transitioning to a polygon-based reporting format is the speed in which such a solution can be implemented. We are mindful of concerns voiced by commenters such as USTelecom that without a database of broadband-addressable locations (which USTelecom terms a “Broadband Serviceable Location Fabric”), broadband coverage polygons provide no information on how many, and which, specific locations in the service area do not actually have service available. However, we disagree with the Broadband Mapping Coalition that the submission of coverage polygons should wait until after a process has been established to identify and geolocate all of the broadband serviceable locations that exist in a given area. Instead, we agree with commenters, such as Connected Nation, that GIS data such as polygons will “provide significant granularity without the need to first create an underlying dataset of structures/locations with which the data can be paired.”

26. We agree with commenters who argue that timing is crucial in getting more granular fixed broadband deployment data. We also agree that the mandatory collection of broadband coverage polygons best achieves the objectives of greater granularity in fixed broadband reporting within the shortest timeframe. As Connected Nation states, “implementing a system based on shapefile reporting would most likely result in the creation of a new more granular National Broadband Map in the shortest amount of time so that Federal agencies can more quickly utilize the map to guide funding decisions and support broadband buildout to the places that still desperately need it.” We find that collecting broadband coverage polygons offers the best approach to more granular broadband deployment data, and that we have an opportunity to move forward quickly to significantly improve the data collection in the near term.

27. Public Availability of Service Availability Data. We agree with NTIA that the Commission should release broadband deployment datasets with more public information, particularly “with tables, charts and maps, granular visualization tools for both localized areas and specific technologies, and other mechanisms that summarize the information.” To better allow for crowdsourcing, mapping, and other uses of fixed broadband deployment data, all service provider information filed as part of the Digital Opportunity Data Collection will be presumed to be non-confidential unless the Commission specifically directs that it be withheld. Filers seeking confidential treatment of data submitted as part of the new collection must submit a request that the data be treated as confidential, along with the reasons for withholding the information from the public. The Commission will make decisions regarding non-disclosure of confidential information. We find that this approach strikes an appropriate balance between the protection of confidential information and the need for public disclosure of fixed broadband deployment data to help with crucial crowdsourcing functionality and mapping capabilities.

28. USAC Verification of Broadband Coverage Maps. In addition to incorporating feedback from state, local, and Tribal governmental entities, along with the public, we conclude that we must also take steps to independently verify coverage data submitted by service providers. As part of its Connect America Fund (CAF) responsibility, USAC maintains the High Cost Universal Broadband (HUBB) portal. CAF support recipients report through the HUBB portal latitude and longitude coordinates, address, deployment date, speed, and number of units for every location where service is available. This information forms the foundation for the Connect America Fund Broadband Map. We direct USAC to integrate the geolocation data contained in the HUBB with the broadband coverage polygons submitted pursuant to the Digital Opportunity Data Collection. Doing so will benefit our overall understanding of how high-cost support dollars are used in conjunction with overall broadband deployment and will aid the data collection verification effort.

29. In the CAF context, USAC performs real-time validation of the CAF data submitted to the HUBB through a series of automated checks of the information ( e.g., that the latitude/longitude falls within an eligible area and that the location is not a duplicate of one already submitted). The HUBB also provides USAC the platform to conduct verification reviews to “substantiate broadband deployment and confirm that carriers are in fact building out service that meets the FCC's minimum performance standards to the locations reported.” Many elements of the process USAC uses for the CAF could potentially be used for verifying broadband deployment data as part of the Digital Opportunity Data Collection. We therefore direct USAC to propose and submit a plan to OEA for independently verifying the fixed broadband coverage polygons filed pursuant to the Digital Opportunity Data Collection. The verification process it proposes to use could parallel how USAC currently verifies deployment data submitted by CAF support recipients in the HUBB. USAC should propose other appropriate means of verifying the accuracy of filers' broadband coverage polygons, including site visits.

30. Incorporating Location-Specific Data into the Digital Opportunity Database. We note that our decision to require broadband coverage area maps does not preclude the use of location-specific coverage data in the future. We agree with USTelecom and NTCA that we “should not adopt an `either/or' approach to improvements to data collection, but should both adopt shapefiles as a reporting methodology and move forward towards a uniform national dataset on top of which carriers can report broadband availability (via shapefile or other potential methods).” As a result, we intend to pursue a multi-faceted approach that also incorporates location-specific data into the Digital Opportunity Data Collection, informed by input received in response to the Second FNPRM on the best way to implement such an approach. We agree with NTCA that the submission of broadband coverage polygons “would certainly improve granularity in the near-term . . . but another significant benefit is the prospect of integrating this approach seamlessly with broader, longer-term efforts to identify availability or lack thereof on a location basis.” Location-based proposals such as the one put forth by the Broadband Mapping Coalition are “designed to produce the most accurate, precise data available, and be a flexible, long-term solution” to the problem of fixed broadband deployment accuracy and granularity.

31. While we intend to pursue development of a location-specific database, we will not delay implementation of the new data collection while we make a determination of how best to incorporate location-specific data. We agree with commenters like ACA who argue that location-specific reporting will impose substantial costs and complexity on fixed broadband providers, especially smaller providers, and will take significant time to complete. As a result, we find it is prudent to take this next step to improve the fixed broadband deployment data we collect in the near term. As a means of moving the location-based process forward as we work to establish our polygon-based approach, we seek comment in the Second FNPRM on the best and fastest way to implement a location-based approach to fixed broadband deployment reporting, including whether to run such a process in parallel, or closely aligned, with the establishment of the new online portal for the Digital Opportunity Data Collection.

32. Alternatives Not Adopted. We decline to adopt the approach set forth by Comcast and ACA to collect fixed broadband deployment data at the street segment level. According to ACA, while large providers have the capability and resources to collect broadband deployment data at a more granular level, smaller providers will face much greater burdens reporting deployment data with more precision. We find that a street-level approach to fixed broadband deployment reporting has the same problem with granularity as the current census-block approach, especially in rural areas. Specifically, fixed providers claiming broadband service availability on an entire street, when only part of the street actually is served, would overstate broadband deployment much more so than a GIS file-based approach. We also agree with WISPA that a street-segment approach is not appropriate for fixed wireless providers, as streets and roads do not dictate how or where fixed wireless service is constructed, and consequently where service is provided and where it is available. Finally, given the familiarity that fixed providers have with GIS files, we find that is the better approach.

33. In addition, we find that NTIA's recommendation to collect sub-census-block level broadband deployment data only for larger census blocks does not go far enough. While we understand NTIA's desire to keep burdens low for filers, especially for small providers, we find that it is crucial to determine unserved broadband areas wherever they may be—in large, medium, or small census blocks. We do not agree with NTIA's assertion that we should only require more granular broadband deployment reporting in large census blocks—deployment data are critical for all areas and will allow federal and state governments (and providers) to determine with better particularity where broadband funding and buildout is most needed. In fact, the data suggest that there are likely unserved locations within even small blocks that are reported as served on Form 477. Granular reporting for all areas also would reduce customer confusion when attempting to determine broadband availability on a map produced from GIS-based data.

34. We also decline to adopt Connected Nation's proposal to establish a neutral, third-party clearinghouse for the collection of fixed broadband deployment data. We conclude that such a clearinghouse would be largely redundant in light of the revised framework for collecting and reporting fixed deployment data that we adopt in this Report and Order.

35. As USAC begins undertaking the Digital Opportunity Data Collection, we will continue to use Form 477 for certain intended uses, such as evaluating local telephone competition, gathering broadband deployment and voice subscription data, and collecting certain public safety information. However, we propose in the Second FNPRM to transition the collection of mobile broadband-capable network deployment data to the same USAC-administered portal created for fixed data and seek comment on sunsetting Form 477. We maintain the Commission's current Form 477 data collection for mobile broadband and voice data in the interim and take several actions to reduce the burden on service providers required to submit the form.

36. Publish Minimum Advertised or Expected Speed Data and Provider-Specific Coverage Data for Mobile Broadband Services. We adopt our proposal from the 2017 Data Collection Improvement FNPRM to no longer treat as confidential service providers' minimum advertised or expected speed data for mobile broadband services. After review of the record and considering what service providers already make public on their websites, we conclude that minimum advertised or expected speed data filed for mobile broadband services will not be treated as confidential and, therefore, such data will be publicly released for all subsequent filings. Currently, the bulk of the speed data that providers file relating to minimum advertised or expected speeds is treated as confidential because most, if not all, providers choose to check the non-disclosure box that is available to them on the form. This box allows providers to claim confidential treatment for what is otherwise publicly available speed information. Doing so, however, unnecessarily limits the ability of consumers and policy makers to effectively analyze the data submitted.

37. We also conclude that provider-specific coverage data will be publicly released for all subsequent Form 477 filings. This action is necessary to ensure that consumers can easily use the information that is disclosed to the public, including minimum advertised or expected speed data, because such information is only beneficial if consumers know where service coverage is available. Because the Commission already makes provider-specific coverage data publicly available on its website by publishing each provider's shapefiles, filers will no longer be permitted to request confidential treatment for such information upon filing.

38. We expect that disclosing minimum advertised or expected speed data, combined with already publicly available coverage information, will serve the public interest by promoting a more informed, transparent, and efficient marketplace. The dissemination of such information will allow consumers to determine what services are offered in specific geographic areas. It will also enable consumers to compare competing service offerings and make informed decisions regarding service plans and providers. In addition, it will provide consumers with the opportunity to review the data to ensure its accuracy.

39. We are not persuaded that this coverage and speed data is competitively sensitive. Providers routinely publish and advertise the expected upload and download speeds they offer. Because coverage and speed data are already publicly available, we find that such information is not commercially sensitive, and conclude that its public release will not cause competitive harm to service providers. Most commenters agree that service providers often publicize this information by including it on their websites or in their advertising materials, which shows that they do not consider such information to be confidential or commercially sensitive.

40. When balancing the public and private interests at stake, we conclude that public release of these data will not result in competitive harm and that the public interest in releasing coverage and speed information substantially outweighs any interest that service providers have in keeping confidential information that is already publicly available. Accordingly, going forward we will publish nationwide, provider-specific coverage maps depicting minimum advertised or expected speed data.

41. Eliminating Requirement to Report Broadband Network Coverage by Spectrum Band. Under the current Form 477 reporting framework, mobile facilities-based providers are required to submit separate coverage maps depicting their broadband network coverage areas for each transmission technology and each frequency band. Eliminating this requirement is necessary to enhance focus on aspects of the data that are more important while decreasing burdens, so we therefore eliminate this unnecessary requirement.

42. The Commission had hoped that collecting deployment information by spectrum band would enable it “to analyze deployment in different spectrum bands,” but that has not come to pass. We agree with commenters that eliminating this requirement will streamline the reporting process and reduce the number of coverage maps (and the associated underlying data processing) that reporting entities must submit. As Verizon notes, the Commission usually requests band-specific information directly from licensees in the context of analyzing build-out and license renewal representations, and does not look at the current data collected. The burdens of submitting these data outweigh the benefits, particularly in light of the Commission's limited use of these data.

43. We disagree that the Commission and consumer advocates may find it difficult to monitor providers' buildout requirements without this information. We are also not persuaded by Institute for Local Self-Reliance's (ILSR) unsupported argument that we should continue to collect information that might be useful in the future. ILSR provides no meaningful examples of how the Commission might use these data. We also disagree with ILSR's claim that information on deployment by spectrum band is “essential” to determine if mobile providers are offering mobile broadband service of 10 Mbps download and 1 Mbps upload. Mobile broadband service providers already separately provide deployment data, including information on minimum advertised speeds. Moreover, given that service providers are deploying technologies ( e.g., LTE) in multiple bands, we find this information is even less useful today than it was in 2013 when we originally imposed this requirement. We should not impose collection burdens based solely on the possibility that we might use the information at some point in the future.

44. Adding a 5G-NR Technology Code. In the 2017 Data Collection Improvement FNPRM, the Commission sought comment on whether it should require separate reporting of 5G mobile broadband deployment and, if so, whether and how it should define 5G for the purposes of the Form 477 data collection. Given the industry's increasing deployment of 5G and our goal of facilitating 5G services to consumers, we will now require providers to report 5G technology deployments as part of their filings. Gathering 5G deployment data for all areas of the country as well as creating 5G deployment maps based on such data is necessary so that consumers can understand where they can receive such services and to help guide us for future policies on 5G technology. We find that adding 5G technology deployments to our mobile broadband data collection and maps—and specifically defining it for purposes of Form 477 collection—is consistent with the Commission's goal of tailoring its policies to evolution in technologies. We therefore adopt the 5G-NR (New Radio) technology standards developed by the 3rd Generation Partnership Project (3GPP) with Release 15 and require providers to submit 5G deployment data that meet the specifications of Release 15 (or any successor release that may be adopted by the Commission's Bureaus).

45. We disagree with some commenters' claims that requiring submission of 5G deployment data would lead to inconsistent results based on an absence of 5G industry standards. The 3GPP 5G-NR technology standards provide adequate guidance for filers to determine which deployments meet the 5G-NR technology definition. We reject CTIA's suggestion that providers be allowed to voluntarily report 5G deployments. To ensure that both the Commission and consumers have an accurate account of 5G deployments, we will make such submissions mandatory.

46. Eliminating Outdated Technology Codes. In the 2017 Data Collection Improvement FNPRM, the Commission sought comment on whether to eliminate or modify the requirement that mobile broadband providers report coverage information for each technology deployed in their networks. Specifically, the Commission asked whether reporting entities should provide coverage maps for four categories of technology—3G, 4G non-LTE, 4G LTE, and 5G—rather than the nine mobile broadband technology codes that it currently uses and, if so, how the Commission should define these four categories. Based on our experience with data gathered under the nine different mobile broadband technologies that the form specifies and on commenters' support for limiting the number of technologies, we modify the requirement to limit the required submission to four categories of technology—“5G-NR (New Radio),” “LTE (Long Term Evolution),” “CDMA-based,” and “GSM-based.”

47. For broadband data submissions going forward, 5G-NR reported technology should comply with industry standards for 5G as adopted by 3GPP. Similarly, we adopt the LTE standards developed by 3GPP in Release 8 through Release 14, and deployment reported under LTE should be consistent with such standards. The “CDMA-based” category aggregates the CDMA and EVDO/EVDO Rev A categories in the current form, and the “GSM-based” category combines the GSM, WCDMA/UMTS/HSPA, and HSPA+ categories. We will eliminate collection of deployment data under the Analog and WiMAX categories because both technologies are no longer in widespread use and have been decommissioned by several mobile providers. The categories we adopt today will more meaningfully reflect information that is useful to consumers.

48. Several commenters suggest modifications to the proposal in the 2017 Data Collection Improvement FNPRM. We reject AT&T's suggestion that we require “providers to file coverage maps for only three technology categories, 3G/4G, 4G LTE and 5G.” As some commenters observe, modifying the requirement will fail to capture deployment of mobile technologies that predate LTE and 5G when parts of the country are still reliant on such technologies. To address in part the concerns of GCI, Connected Nation, and the CPUC, we do not adopt AT&T's proposal. Instead, we modify the proposal from the 2017 Data Collection Improvement FNPRM to retain aggregated collection under the “CDMA-based” and “GSM-based” categories of mobile broadband deployment data under technologies that predate LTE and 5G-NR (with the exception of WiMAX and Analog) because important uses remain for such data. Aggregated collection under the “CDMA-based” and “GSM-based” categories, combined with collection of LTE and 5G-NR deployment, will ensure that areas of the country covered by at least 3G technology and entirely unserved areas of the country are captured, and will allow the Commission and other policymakers to evaluate those areas most in need.

49. Given the extent of LTE deployment across the country, the importance of capturing mobile broadband deployment data under nine technology codes has been significantly reduced. In 2017, “approximately 92% of the U.S. population lived in census blocks with LTE coverage by at least four service providers,” “AT&T and Verizon each provided LTE coverage to census blocks containing approximately 98% of the population, T-Mobile provided LTE coverage to approximately 96% of the population, while Sprint provided LTE coverage to approximately 91% of the population.” Thus, with providers' increased reliance on LTE to provide mobile broadband across the country, capturing mobile broadband deployment under nine technology codes has become outdated and unnecessary. The four codes that we adopt in this item will reduce burdens on filers while providing adequate information for the Commission to continue to “assess the wireless marketplace to ensure that our spectrum and competition policies accommodate growing demand and evolving technologies in the provision of mobile broadband services.”

50. The new 5G-NR, LTE, CDMA-based, and GSM-based technology codes also lessen the likelihood that filers may adopt and file under their own definitions of technology deployments, leading to confusion and decreasing the usefulness of the data gathered. Given that there are industry standards for 5G technology and LTE, we find it unnecessary to continue to require individual submissions under each of the previous nine codes.

51. Finally, requiring deployment data to be submitted under four, instead of nine, technology codes will ease burdens on filers who must currently submit shapefiles for each technology. We find that the limited usefulness and practical application of the nine technology codes that Form 477 currently requires do not outweigh the burdens that they generate for filers.

52. Simplifying Mobile Voice Deployment Data Collection. We eliminate the requirement to submit mobile voice data by spectrum band for the same reasons that we eliminate this requirement for mobile broadband data: The Commission has yet to use this spectrum band information in its mobile voice coverage analysis and the requirement poses an additional burden on filers. We also streamline the technology filing requirement to four main voice-technology categories: 5G-NR, Voice-over-LTE (VoLTE), GSM-based, and CDMA-based. GSM-based voice technologies include GSM or a subsequent generation of GSM, such as the current technology codes GSM, WCDMA/UMTS/HSPA, and HSPA+. CDMA-based voice technologies include CDMA or a subsequent generation of CDMA, such as the current technology codes CDMA and EVDO/EVDO Rev A.

53. In filing nationwide voice-service coverage data, facilities-based mobile voice providers are required to submit shapefiles representing geographic coverage by technology ( e.g., LTE, CDMA, analog) and spectrum band of the service providers' voice coverage. In the 2017 Data Collection Improvement FNPRM, the Commission, while noting the importance of tracking where mobile voice services are available to consumers, sought comment on how it might streamline this collection. Specifically, the Commission asked whether it should eliminate the submission of voice coverage by both technology and spectrum band and whether it should continue to collect data for VoLTE separately.

54. In the 2013 Form 477 Order, the Commission stated that voice deployment data filed by spectrum band and technology type would (1) enable the Commission to analyze the extent of deployment in different spectrum bands; (2) help the Commission project market trends and adjust its spectrum and competition policies; and (3) assist in the Commission's efforts in the areas of emergency response and disaster relief by identifying the providers that typically serve an affected area. The Commission no longer finds it useful, however, to examine voice deployment data by spectrum band for the purpose of adjusting its spectrum and competition policies, because service providers currently deploy voice and broadband technologies across multiple bands. We also address the Commission's need to determine which provider's networks are available during an emergency, by retaining the requirement to submit data for VoLTE deployment. For example, VoLTE data coverage information demonstrates comprehensive technological compatibility among providers and aids the Commission in identifying where networks are available during natural disasters.

55. Multiple commenters observe that several maps must be generated to meet this filing requirement, with little corresponding benefit. In balancing these interests, we find that more streamlined coverage maps depicting each provider's nationwide voice coverage area based on the technology categories outlined above allows consumers (and the Commission) to know where they can receive voice service from a given provider. We agree with the argument that continuing a separate collection for certain voice technologies is necessary because, for instance, consumers with a GSM-only phone may not be able to complete a call when roaming in an area where only CDMA is available. Providers have or will soon sunset their older voice technologies, replacing them with VoLTE networks. However, continuing to collect the voice technology deployment data we outline in this order is necessary for tracking where remaining legacy voice technologies are decommissioned, to ensure that coverage gaps in mobile calling do not arise.

56. While we are streamlining the filing of voice-deployment data, we find facilities-based mobile-voice providers should continue to submit VoLTE-deployment data and going forward submit 5G voice deployment data under the new 5G-NR category. These data are valuable because they represent potential universal technical compatibility among mobile-voice providers, which could significantly aid emergency response and other efforts facilitated by such compatibility. For example, VoLTE coverage could better facilitate a customer's ability to complete a 911 call while roaming, particularly in rural areas where other voice technologies are not available. VoLTE is not yet ubiquitous. The filing of 5G-NR and VoLTE coverage data will allow the Commission to monitor how these deployments fill-in and expand upon the current voice-coverage footprint. We direct OEA, in consultation with WCB and WTB to change which mobile voice service technology data are collected going forward, as they evolve.

57. Collect Mobile Broadband and Voice Subscription Data at the Census Tract Level. Facilities-based mobile-broadband and voice providers are currently required to submit their subscriber numbers by state. Providers must include their own prepaid and postpaid customers in addition to those of resellers. Currently, providers are instructed to assign a subscriber to a particular state based on the area code of the device's phone number or “by using some other method that best reflects the subscriber's locations, such as billing address or place of primary use address.”

58. To provide more granular data, the 2017 Data Collection Improvement FNPRM proposed changing the subscribership data by requiring service providers to submit subscriber data at the census-tract level, attributed to the subscriber's billing address. Based on the record and the Commission's need for more granular data, we now require mobile providers to submit broadband and voice subscriber data at the census-tract level based on the subscriber's place of primary use for postpaid subscribers and based on the subscriber's telephone number for prepaid and resold subscribers. We find that state-level aggregation of subscription data significantly limits the data's usefulness, and that census-tract level data would substantially improve our ability to conduct more accurate mobile competition analysis, particularly in secondary market transactions. For instance, the Commission analyzes competition by Cellular Market Area to determine the impact of removing a competitor in a proposed license transfer. While the Commission receives subscriber data from service providers to assess competition in relevant market areas in a pending transaction, it does not contain information about the other competitors in the market. Having the same census-tract level subscribership data from all providers facilitates the Commission's ability to conduct comparative analysis in license transfer proceedings.

59. The Commission today relies on the telephone number-based Number Resource Utilization/Forecast information as a proxy for filer-submitted subscriber numbers when conducting competitive market analyses because of shortcomings in state-level subscriber data. Number Resource Utilization/Forecast subscriber data indicate the number of assigned phone numbers that a service provider has in a particular rate center, out of the 18,000 rate centers across the country. All service providers must report to the Commission the quantity of their phone numbers assigned to end users, which permits the Commission to calculate the total number of mobile wireless subscribers. When a geographical analysis is required, rate center data can be associated with a geographic point within a county boundary.

60. Number Resource Utilization/Forecast data, however, have limitations, like providing only the quantity of mobile wireless connections that have a telephone number, rather than the number of consumers subscribed to mobile broadband or voice service. If a mobile broadband or voice subscriber uses a device that does not have a telephone number assigned to it ( e.g., a tablet), then that subscriber will not be recorded in Number Resource Utilization/Forecast data. These data also do not reflect when consumers move to a different state and retain the same telephone number.

61. We find that both the Commission's need for more precise data for competitive analyses and the limitations of Number Resource Utilization/Forecast data outweigh industry concerns about the burden of the collection. We believe that filer-supplied data at the census-tract level are superior to Number Resource Utilization/Forecast data because they are generated by the operators and based on the operator-determined location of its subscribers. Use of Number Resource Utilization/Forecast data require the Commission to estimate the location of subscribers based on the rate centers associated with telephone numbers, and this can cause problems. Mobile subscriber data at the census-tract level provides a dataset needed for our analyses, instead of introducing error by relying on Number Resource Utilization/Forecast data in a manner that it was not intended to be used.

62. Census-tract level reporting of mobile subscription data strikes the proper balance between more useful, granular data, while reducing artificial precision that could be introduced by getting too granular with mobile service use. Some commenters support the requirement to file subscriber data by census block. OTI states that census-block level data would help digital literacy programs better target their efforts, because many households subscribing to these programs rely on mobile broadband as their primary means of accessing the internet. Using census tracts is consistent with our previous finding that this level of granularity corresponds to actual locations and can be correlated with valuable demographic census data. Moreover, subscription data at the census-tract level would be useful for analyzing competition by market and would be more useful than rate-center based Number Resource Utilization/Forecast data. While customers are attributed to a particular address for their place of primary use, unlike fixed, the mobile nature of the service inherently makes such attribution to too small an area artificial. The census-tract level maintains the balance of being useful for our analyses while reducing any artificial granularity.

63. We are not convinced that the burdens on reporting entities are so high that the Commission should continue to rely on Number Resource Utilization/Forecast data. We disagree with commenters who contend that we should continue to rely on Number Resource Utilization/Forecast data as the primary source of mobile broadband connections and voice service subscriptions. The Commission must move forward with a more accurate mobile subscription collection to meet its goals and track subscribership data. Nothing in the record indicates that a census-tract collection is any more burdensome for mobile filers than for fixed filers, whom were already required to provide subscriber data at the census-tract level.

64. To ensure consistency among submissions, we require providers to submit census tract postpaid subscribership data by “place of primary use,” which is defined in the United States Code as “the street address representative of where the customer's use of the mobile telecommunications service primarily occurs,” and must be the “the residential street address or the primary business street address of the customer” and “within the licensed service area of the home service provider.” We find, however, that we should seek further comment on applying the place of primary use methodology to prepaid and reseller subscribers. As explained by CTIA, many prepaid mobile providers neither collect nor use place of primary use. Once prepaid subscribers purchase mobile services at point-of-sale, the service provider may not communicate with or track the subscriber. It would be a significant change if retailers and service providers are required to collect subscriber billing address at point-of-sale, or if providers are required to obtain customer billing address by some other means, such as by directly contacting the subscriber via text message or telephone call. To ensure the Commission receives prepaid and reseller subscriber data using a consistent methodology, we find it is necessary on an interim basis to require providers to submit data that assigns those subscribers to a census tract using the subscriber's telephone number.

65. We find persuasive the concerns expressed by commenters that the use of billing address does not reflect where subscribers primarily use their mobile broadband and voice services. Certain subscriber groups, such as seasonal workers, college students, business accounts, and prepaid subscribers, could be misreported if billing address is used to represent where they primarily use their service. The “place of primary use” best addresses all of these concerns. This definition focuses on where the service is primarily used, not billed, and allows for inclusion of prepaid subscribers. Facilities-based mobile service providers must also obtain and maintain this information for tax purposes, thus decreasing the burden of collecting and storing these subscriber data. To the extent that providers do not currently have a system that associates a place of primary use with a census tract, providers should obtain and keep this information in the normal course of business going forward. While the place of primary use may not reflect all locations that subscribers may use their service, we believe it is the best proxy given the benefits and burdens commenters identified.

66. Eliminating Collection of Mobile Retail Availability. We conclude it is appropriate to no longer collect census-tract level mobile retail availability data. The current form requires facilities-based mobile broadband providers to submit a list of census tracts in which the provider advertises its mobile wireless broadband service and in which the service is available to actual and potential subscribers. These retail availability data were used as a proxy for mobile broadband deployment data before the Commission required submission of such data. When the Commission began collecting deployment data, it decided to retain the retail availability collection, on the basis that such data are necessary to indicate where, within a service provider's coverage area, the provider actually has a local retail presence. The Commission concluded that collection of retail availability data would complement the deployment data by allowing the Commission to better understand where service is “advertised and available” to subscribers within the provider's deployment footprint.

67. The 2017 Data Collection Improvement FNPRM proposed to eliminate the collection of retail availability data, given that, as time passed, the data did not in actuality provide useful, additional information about where service providers have a local retail presence. Based on the record, we now eliminate the mobile retail availability collection. We agree with commenters that this collection creates an additional filing burden but does not yield useful data.

68. We are not persuaded by those commenters that support retention or improvement of the retail availability filing requirement. The California PUC argues that we should continue collecting this information, but does not explain how it is useful beyond what is also collected for deployment data. The West Virginia Office of the GIS State Coordinator states that we should revise the collection and require providers to submit their local retail presence, which would aid in determining how to serve consumers not located in retail service areas. However, most (if not all) consumers can still subscribe to service despite the lack of a retail presence in a location, if a provider's network covers that location. We find that deployment information, which service providers must continue to submit, is much more useful to consumers and policymakers than retail availability information, and accordingly we eliminate the mobile retail availability collection.

69. Eliminating the Committed Information Rate Collection for Fixed-Broadband Deployment. Form 477 currently requires fixed providers offering business/enterprise/government services to report the maximum downstream and upstream contractual or guaranteed data throughput rate (committed information rate) available in each reported census block. However, the record in this proceeding supports discontinuing the collection of committed information rate data. We agree with commenters such as Alaska Communications that committed information rate data is “not a useful category of data” and “imposes significant burdens”, and with ACA, who argues that any rationale there was to adopt the requirement no longer exists because “small- and medium-sized end-users increasingly do not distinguish” between best-efforts or committed information rate “as broadband service performance for best-efforts is enhanced.” Verizon also agrees with eliminating the committed information rate requirement because “relying on the maximum upload and download speed should sufficiently describe the services that are available to business customers in an area.” AT&T supports elimination and asks that the Commission “limit the collection to the maximum best efforts speed offered, and maintain the indicators for consumer and business data.” Other commenters also are in agreement with eliminating the committed information rate reporting requirement.

70. Only Windstream supports keeping the collection of committed information rate data, arguing that such data “enable the Commission to evaluate trends in the competitive landscape for the provision of Business Data Services. . . .” Windstream, in fact, urges the Commission not only to keep but also to expand the collection and require reporting of the following CIR ranges at the census-block level: (1) 10 Mbps and below; (2) 11 to 50 Mbps; (3) 51 to 100 Mbps; (4) 101 Mbps to 1 GB; and (5) above 1GB. Windstream contends that these data “are crucial for the Commission to evaluate whether its predictions prove accurate or whether different action is necessary to ensure competitive [business data service] markets.”

71. We disagree. Specific measures of a committed information rate are not required to evaluate the business data services market per the competitive market test that the Commission adopted in 2017 for price cap areas (prior to the 2017 Data Collection Improvement FNPRM ) and in 2018 for certain rate-of-return areas. Accordingly, discontinuing the committed information rate collection lacks any relationship to our ability to “evaluate trends in the competitive landscape for the provision of [business data services],” as Windstream claims. The competitive market test depends on reported service speeds (specifically, a minimum of 10/1 Mbps). As long as we collect service speeds for upload and download, all the information necessary for an analysis using the competitive market test remains available. Therefore, we disagree with Windstream and decline to expand the collection of committed information rate data as requested.

72. Permitting Company-Specific Fixed-Voice-Subscription Data at the Study-Area Level for Incumbent Local Exchange Companies. In the 2017 Data Collection Improvement FNPRM, the Commission proposed to use the Form 477 fixed voice subscription data, in conjunction with Study Area Boundary data, to develop and publish aggregated voice line counts for every rate-of-return carrier study area. The Commission's proposal stemmed from the fact that, at the time, rate-of-return carriers switching to the Alternative Connect America Cost Model and Alaska Plan carriers were no longer required to report such data to USAC for its legacy study area boundaries. However, in the December 2018 Rate-of-Return Reform Order, the Commission reinstated the requirement so the Commission can once again collect the line count information (through FCC Form 507), thereby maintaining a frequently-used data set. Consequently, we decline to adopt the proposal to replace the FCC Form 507 data with the Form 477 fixed voice subscription data (plus Study Area Boundary data) because the underlying rationale for the Commission's proposal no longer exists ( i.e., the proposal is moot).

73. Non-Substantive Clarifying Rule Amendments. Finally, we adopt amendments to clarify our rules, correct inaccurate references, and delete superfluous text, without changing the substantive requirements. First, we modify the rules to more clearly identify the categories of service providers required to submit data. The Commission has required facilities-based providers of broadband service to submit Form 477 since 2000, but the existing rules do not define the key term “broadband.” We remedy this gap by incorporating the form Instructions' definition of “broadband connection” into the rule. Moreover, facilities-based providers of mobile voice service have been required to file since the form's inception; but the rules do not make clear that mobile voice service providers can be defined as “facilities-based providers” or that only those that qualify as “facilities-based” must file. We correct these anomalies by broadening the definition of “facilities-based providers” to encompass mobile voice service providers as well as broadband connections.

74. We also consolidate the separate rule sections that establish Form 477 filing requirements for broadband service providers (Sections 1.7000 et seq. ) and local voice service providers (Section 43.11) into a single set of rules. It is no longer necessary to retain two separate sets of rules regarding submission of the same form, particularly because any given entity may provide both types of services and thus is subject to both rules. Furthermore, we revise text in Section 1.7001(a) that inaptly refers to facilities-based providers' rights to use spectrum in terms of ownership rather than licensing. Instead, we use the more precise and accurate text of the Form 477 Instructions to make clear that fixed wireless and mobile voice and broadband service providers are “facilities-based,” for these purposes, if they: (1) Use spectrum for which they have a license; (2) manage or lease spectrum from another licensee pursuant to our rules; or (3) operate over unlicensed spectrum that is lawfully available for its use. We also delete unnecessary text.

75. Finally, we direct WCB, together with IB, WTB, and OEA, to modify Form 477 and the Instructions to the form to reflect changes in technologies over time and to update coverage resolution, network or transmission technologies, and related matters reported on Form 477 as necessary.

76. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the 2017 Data Collection Improvement FNPRM released in August 2017 in this proceeding. The Commission sought written public comment on the proposals in the FNPRM, including comments on the IRFA. No comments were filed specifically in response to the IRFA. One commenter in the proceeding referenced the IRFA in its general comments, and we address those comments below in Section B. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

77. The Form 477 collection has evolved into the primary data source for many Commission actions, including reporting to Congress and the public about the availability of broadband services, informing merger reviews, and supporting our universal service policies. With the Report and Order, the Commission takes steps to improve the Form 477 data collection to reduce filing burdens and provide more useful information to consumers. Specifically, we make targeted changes to streamline the filing process and eliminate the collection of certain information that we believe is not sufficiently useful when compared with the burden imposed on filers in providing such information. In addition, we make targeted changes such as clarifying parts of the instructions and modifying the collection of certain data to aid in more accurate broadband data and the maps based on that data to improve the overall quality and accuracy of the data that we collect on fixed and mobile voice and broadband service. We also streamline the nine mobile broadband technology codes currently listed on the Form 477 down to four categories of technology; require collection of facilities-based mobile broadband and voice subscription data at the census tract level; and make publicly available speed data that mobile broadband service providers submit on all subsequent Form 477 filings.

78. It also has become clear to the Commission that the fixed-broadband deployment data collected on Form 477 are no longer sufficient to use for targeting our universal service funds. Therefore, we direct the Universal Service Administrative Company (USAC), under the oversight of the Commission's Office of Economics and Analytics (OEA), the Wireline Competition Bureau (WCB), Wireless Telecommunications Bureau (WTB), and the International Bureau (IB), to initiate a new data collection (the Digital Opportunity Data Collection) for fixed providers based on geospatial broadband service availability data that represent the actual service area where fixed broadband is available. At the same time, to complement this granular broadband availability data, we adopt a process to have USAC begin collecting public input, sometimes known as “crowdsourcing,” on the accuracy of service providers' broadband deployment data. Through this new tool, State, local, and Tribal governmental entities, and members of the public, will be able to submit fixed broadband availability data, leveraging their experience concerning service availability. We believe these actions in the Report and Order will increase the usefulness of fixed broadband deployment data to the Commission, Congress, the industry, and the public.

79. The Wireless Internet Service Providers Association (WISPA) in its general comments to the FNPRM contends that that IRFA does not meet the requirements of the Regulatory Flexibility Act (RFA) because the Commission failed “to estimate how many small broadband providers use unlicensed spectrum.” Section 603 of the RFA requires the Commission to include in the IRFA “a description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply.” WISPA argues that it is feasible for the Commission to estimate the number of small fixed wireless internet providers by using the information from its data collection on Form 477.

80. When we prepared the IRFA in 2017, it was not feasible for us to provide an accurate estimate of the number of small wireless internet service providers (WISPs) that would be affected by the proposed rule. Our action in Section III.B. of this Report and Order clarifies that WISPs that operate over unlicensed spectrum are required to file Form 477. We recognize the possibility that such entities might not have filed in prior data collections because of the ambiguity in Section 1.7001(a) of the Commission's rules. Thus, at the time, it was not feasible for us to estimate the number of small WISPs that would be affected by the proposed rule. However, we specifically considered the potential impact of the proposed rule on small WISPs in the IRFA for the 2017 Data Collection Improvement FNPRM by including such entities in the “Broadband Internet Access Service Providers” category.

81. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments 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 rules as a result of those comments.

82. The Chief Counsel did not file comments in response to the proposed rules in this proceeding.

83. 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.

84. Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three comprehensive small entity size standards that could be directly affected herein. First, while there are industry-specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States which translates to 28.8 million businesses.

85. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of August 2016, there were approximately 356,494 small organizations based on registration and tax data filed by nonprofits with the Internal Revenue Service (IRS).

86. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data published in 2012 indicate that there were 89,476 local governmental jurisdictions in the United States. We estimate that, of this total, as many as 88,761 entities may qualify as “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small.

87. The broadband internet access service provider industry has changed since the definition was introduced in 2007. The data cited below may therefore include entities that no longer provide broadband internet access service and may exclude entities that now provide such service. To ensure that this FRFA describes the universe of small entities that our action might affect, we discuss in turn several different types of entities that might be providing broadband internet access service. We note that, although we have no specific information on the number of small entities that provide broadband internet access service over unlicensed spectrum, we included these entities in our Initial Regulatory Flexibility Analysis.

88. Internet Service Providers (Broadband). Broadband internet service providers include wired ( e.g., cable, DSL) and VoIP service providers using their own operated wired telecommunications infrastructure and fall in the category of Wired Telecommunication Carriers. Wired Telecommunications Carriers are comprised of establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. The SBA size standard for this category classifies a business as small if it has 1,500 or fewer employees. U.S. Census data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Consequently, under this size standard the majority of firms in this industry can be considered small.

89. Internet Service Providers (Non-Broadband). Internet access service providers such as Dial-up internet service providers, VoIP service providers using client-supplied telecommunications connections, and internet service providers using client-supplied telecommunications connections ( e.g., dial-up ISPs) fall in the category of All Other Telecommunications. The SBA has developed a small business size standard for All Other Telecommunications, which consists of all such firms with gross annual receipts of $32.5 million or less. For this category, U.S. Census data for 2012 shows that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million. Consequently, under this size standard a majority of “All Other Telecommunications” firms can be considered small.

90. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as “establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.” The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. U.S. Census Bureau data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small.

91. Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. The closest applicable NAICS Code category is Wired Telecommunications Carriers. Under the applicable SBA size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, U.S. Census data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus under this category and the associated size standard, the Commission estimates that the majority of local exchange carriers are small entities.

92. Incumbent Local Exchange Carriers ( Incumbent LECs ). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The closest applicable NAICS Code category is Wired Telecommunications Carriers. Under the applicable SBA size standard, such a business is small if it has 1,500 or fewer employees. According to U.S. Census Bureau data for 2012, 3,117 firms operated in that year. Of this total, 3,083 operated with fewer than 1,000 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by our actions. According to Commission data, 1,307 Incumbent LECs reported that they were incumbent local exchange service providers. Of this total, an estimated 1,006 have 1,500 or fewer employees. Thus, using the SBA's size standard, the majority of Incumbent LECs can be considered small entities.

93. Competitive Local Exchange Carriers (Competitive LECs), Competitive Access Providers (CAPs), Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate NAICS Code category is Wired Telecommunications Carriers and under that size standard, such a business is small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2012 indicate that 3,117 firms operated during that year. Of that number, 3,083 operated with fewer than 1,000 employees. Based on these data, the Commission concludes that the majority of Competitive LECS, CAPs, Shared-Tenant Service Providers, and Other Local Service Providers, are small entities. According to Commission data, 1,442 carriers reported that they were engaged in the provision of either competitive local exchange services or competitive access provider services. Of these 1,442 carriers, an estimated 1,256 have 1,500 or fewer employees. In addition, 17 carriers have reported that they are Shared-Tenant Service Providers, and all 17 are estimated to have 1,500 or fewer employees. Also, 72 carriers have reported that they are Other Local Service Providers. Of this total, 70 have 1,500 or fewer employees. Consequently, based on internally researched FCC data, the Commission estimates that most providers of competitive local exchange service, competitive access providers, Shared-Tenant Service Providers, and Other Local Service Providers are small entities.

94. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a definition for Interexchange Carriers. The closest NAICS Code category is Wired Telecommunications Carriers. The applicable size standard under SBA rules consists of all such companies having 1,500 or fewer employees. U.S. Census Bureau data for 2012 indicate that 3,117 firms operated during that year. Of that number, 3,083 operated with fewer than 1,000 employees. According to internally developed Commission data, 359 companies reported that their primary telecommunications service activity was the provision of interexchange services. Of this total, an estimated 317 have 1,500 or fewer employees. Consequently, the Commission estimates that the majority of interexchange service providers are small entities.

95. Operator Service Providers ( OSPs ). Neither the Commission nor the SBA has developed a small business size standard specifically for operator service providers. The closest applicable size standard under SBA rules is the category of Wired Telecommunications Carriers. Under the size standard for Wired Telecommunications Carriers, such a business is small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small.

96. According to Commission data, 33 carriers have reported that they are engaged in the provision of operator services. Of these, an estimated 31 have 1,500 or fewer employees and two have more than 1,500 employees. Consequently, the Commission estimates that the majority of OSPs are small entities.

97. Other Toll Carriers. Neither the Commission nor the SBA has developed a definition for small businesses specifically applicable to Other Toll Carriers. This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers and the applicable small business size standard under SBA rules consists of all such companies having 1,500 or fewer employees. U.S. Census data for 2012 indicate that 3,117 firms operated during that year. Of that number, 3,083 operated with fewer than 1,000 employees. According to Commission data, 284 companies reported that their primary telecommunications service activity was the provision of other toll carriage. Of these, an estimated 279 have 1,500 or fewer employees. Consequently, the Commission estimates that most Other Toll Carriers are small entities.

98. The broadband internet access service provider category covered by these new rules may cover multiple wireless firms and categories of regulated wireless services. Thus, to the extent the wireless services listed below are used by wireless firms for broadband internet access service, the actions may have an impact on those small businesses as set forth above and further below. In addition, for those services subject to auctions, we note that, as a general matter, the number of winning bidders that claim to qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments and transfers or reportable eligibility events, unjust enrichment issues are implicated.

99. Wireless Telecommunications Carriers (except Satellite) . This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1,000 employees or more. Thus, under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities.

100. The Commission's own data—available in its Universal Licensing System—indicate that, as of August 31, 2018, there are 265 Cellular licensees that will be affected by our actions. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to internally-developed Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) Telephony services. Of this total, an estimated 261 have 1,500 or fewer employees, and 152 have more than 1,500 employees. Thus, using available data, we estimate that the majority of wireless firms can be considered small.

101. Wireless Communications Services. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission defined “small business” for the wireless communications services (WCS) auction as an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” as an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these small business size standards. In the Commission's auction for geographic area licenses in the WCS, there were seven winning bidders that qualified as “very small business” entities and one that qualified as a “small business” entity.

102. 1670-1675 MHz Services. This service can be used for fixed and mobile uses, except aeronautical mobile. An auction for one license in the 1670-1675 MHz band was conducted in 2003. One license was awarded. The winning bidder was not a small entity.

103. Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite). Under the SBA small business size standard, a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census Bureau data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had fewer than 1,000 employees and 12 firms had 1,000 employees or more. Thus, under this category and the associated size standard, the Commission estimates that a majority of these entities can be considered small. According to Commission data, 413 carriers reported that they were engaged in wireless telephony. Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Therefore, more than half of these entities can be considered small.

104. Broadband Personal Communications Service. The broadband personal communications services (PCS) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission initially defined a “small business” for C- and F-Block licenses as an entity that has average gross revenues of $40 million or less in the three previous calendar years. For F-Block licenses, an additional small business size standard for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. These standards, defining “small entity” in the context of broadband PCS auctions, have been approved by the SBA. No small businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that claimed small business status in the first two C-Block auctions. A total of 93 bidders that claimed small business status won approximately 40 percent of the 1,479 licenses in the first auction for the D, E, and F Blocks. On April 15, 1999, the Commission completed the reauction of 347 C-, D-, E-, and F-Block licenses in Auction No. 22. Of the 57 winning bidders in that auction, 48 claimed small business status and won 277 licenses.

105. On January 26, 2001, the Commission completed the auction of 422 C and F Block Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in that auction, 29 claimed small business status. Subsequent events concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. On February 15, 2005, the Commission completed an auction of 242 C-, D-, E-, and F-Block licenses in Auction No. 58. Of the 24 winning bidders in that auction, 16 claimed small business status and won 156 licenses. On May 21, 2007, the Commission completed an auction of 33 licenses in the A, C, and F Blocks in Auction No. 71. Of the 12 winning bidders in that auction, five claimed small business status and won 18 licenses. On August 20, 2008, the Commission completed the auction of 20 C-, D-, E-, and F-Block Broadband PCS licenses in Auction No. 78. Of the eight winning bidders for Broadband PCS licenses in that auction, six claimed small business status and won 14 licenses.

106. Specialized Mobile Radio Licenses. The Commission awards “small entity” bidding credits in auctions for Specialized Mobile Radio (SMR) geographic area licenses in the 800 MHz and 900 MHz bands to firms that had revenues of no more than $15 million in each of the three previous calendar years. The Commission awards “very small entity” bidding credits to firms that had revenues of no more than $3 million in each of the three previous calendar years. The SBA has approved these small business size standards for the 900 MHz Service. The Commission has held auctions for geographic area licenses in the 800 MHz and 900 MHz bands. The 900 MHz SMR auction began on December 5, 1995, and closed on April 15, 1996. Sixty bidders claiming that they qualified as small businesses under the $15 million size standard won 263 geographic area licenses in the 900 MHz SMR band. The 800 MHz SMR auction for the upper 200 channels began on October 28, 1997, and was completed on December 8, 1997. Ten bidders claiming that they qualified as small businesses under the $15 million size standard won 38 geographic area licenses for the upper 200 channels in the 800 MHz SMR band. A second auction for the 800 MHz band conducted in 2002 and included 23 BEA licenses. One bidder claiming small business status won five licenses.

107. The auction of the 1,053 800 MHz SMR geographic area licenses for the General Category channels was conducted in 2000. Eleven bidders won 108 geographic area licenses for the General Category channels in the 800 MHz SMR band and qualified as small businesses under the $15 million size standard. In an auction completed in 2000, a total of 2,800 Economic Area licenses in the lower 80 channels of the 800 MHz SMR service were awarded. Of the 22 winning bidders, 19 claimed small business status and won 129 licenses. Thus, combining all four auctions, 41 winning bidders for geographic licenses in the 800 MHz SMR band claimed status as small businesses.

108. In addition, there are numerous incumbent site-by-site SMR licenses and licensees with extended implementation authorizations in the 800 and 900 MHz bands. We do not know how many firms provide 800 MHz or 900 MHz geographic area SMR service pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million. One firm has over $15 million in revenues. In addition, we do not know how many of these firms have 1,500 or fewer employees, which is the SBA-determined size standard. We assume, for purposes of this analysis, that all of the remaining extended implementation authorizations are held by small entities, as defined by the SBA.

109. Lower 700 MHz Band Licenses. The Commission previously adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. The Commission defined a “small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years. A “very small business” is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. Additionally, the lower 700 MHz Service had a third category of small business status for Metropolitan/Rural Service Area (MSA/RSA) licenses—“entrepreneur”—which is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. The SBA approved these small size standards. An auction of 740 licenses (one license in each of the 734 MSAs/RSAs and one license in each of the six Economic Area Groupings (EAGs)) commenced on August 27, 2002, and closed on September 18, 2002. Of the 740 licenses available for auction, 484 licenses were won by 102 winning bidders. Seventy-two of the winning bidders claimed small business, very small business, or entrepreneur status and won a total of 329 licenses. A second auction commenced on May 28, 2003, closed on June 13, 2003, and included 256 licenses: 5 EAG licenses and 476 Cellular Market Area licenses. Seventeen winning bidders claimed small or very small business status and won 60 licenses, and nine winning bidders claimed entrepreneur status and won 154 licenses. On July 26, 2005, the Commission completed an auction of 5 licenses in the Lower 700 MHz band (Auction No. 60). There were three winning bidders for five licenses. All three winning bidders claimed small business status.

110. In 2007, the Commission reexamined its rules governing the 700 MHz band in the 700 MHz Second Report and Order. An auction of 700 MHz licenses commenced January 24, 2008 and closed on March 18, 2008, which included, 176 Economic Area licenses in the A Block, 734 Cellular Market Area licenses in the B Block, and 176 EA licenses in the E Block. Twenty winning bidders, claiming small business status (those with attributable average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years) won 49 licenses. Thirty-three winning bidders claiming very small business status (those with attributable average annual gross revenues that do not exceed $15 million for the preceding three years) won 325 licenses.

111. Upper 700 MHz Band Licenses. In the 700 MHz Second Report and Order, the Commission revised its rules regarding Upper 700 MHz licenses. On January 24, 2008, the Commission commenced Auction 73 in which several licenses in the Upper 700 MHz band were available for licensing: 12 Regional Economic Area Grouping licenses in the C Block and one nationwide license in the D Block. The auction concluded on March 18, 2008, with three winning bidders claiming very small business status (those with attributable average annual gross revenues that do not exceed $15 million for the preceding three years) and winning five licenses.

112. 700 MHz Guard Band Licensees. In 2000, in the 700 MHz Guard Band Order, the Commission adopted size standards for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A small business in this service is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years. Additionally, a very small business is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. SBA approval of these definitions is not required. An auction of 52 Major Economic Area licenses commenced on September 6, 2000, and closed on September 21, 2000. Of the 104 licenses auctioned, 96 licenses were sold to nine bidders. Five of these bidders were small businesses that won a total of 26 licenses. A second auction of 700 MHz Guard Band licenses commenced on February 13, 2001, and closed on February 21, 2001. All eight of the licenses auctioned were sold to three bidders. One of these bidders was a small business that won a total of two licenses.

113. Air-Ground Radiotelephone Service. The Commission has previously used the SBA's small business size standard applicable to Wireless Telecommunications Carriers (except Satellite). The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census Bureau data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had fewer than 1,000 employees and 12 had employment of 1,000 employees or more. There are approximately 100 licensees in the Air-Ground Radiotelephone Service, and we estimate that almost all of them qualify as small entities under the SBA definition.

114. For purposes of assigning Air-Ground Radiotelephone Service licenses through competitive bidding, the Commission has defined “small business” as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not exceeding $40 million. A “very small business” is defined as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not exceeding $15 million. These definitions were approved by the SBA. In May 2006, the Commission completed an auction of nationwide commercial Air-Ground Radiotelephone Service licenses in the 800 MHz band (Auction No. 65). On June 2, 2006, the auction closed with two winning bidders winning two Air-Ground Radiotelephone Services licenses. Neither of the winning bidders claimed small business status.

115. AWS Services (1710-1755 MHz and 2110-2155 MHz bands (AWS-1); 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz bands (AWS-2); 2155-2175 MHz band (AWS-3)). For the AWS-1 bands, the Commission has defined a “small business” as an entity with average annual gross revenues for the preceding three years not exceeding $40 million, and a “very small business” as an entity with average annual gross revenues for the preceding three years not exceeding $15 million. For AWS-2 and AWS-3, although we do not know for certain which entities are likely to apply for these frequencies, we note that the AWS-1 bands are comparable to those used for cellular service and personal communications service. The Commission has not yet adopted size standards for the AWS-2 or AWS-3 bands but proposes to treat both AWS-2 and AWS-3 similarly to broadband PCS service and AWS-1 service due to the comparable capital requirements and other factors, such as issues involved in relocating incumbents and developing markets, technologies, and services.

116. 3650-3700 MHz band. In March 2005, the Commission released a Report and Order and Memorandum Opinion and Order that provides for nationwide, non-exclusive licensing of terrestrial operations, using contention-based technologies, in the 3650 MHz band ( i.e., 3650-3700 MHz). As of April 2010, more than 1,270 licenses have been granted and more than 7,433 sites have been registered. The Commission has not developed a definition of small entities applicable to 3650-3700 MHz band nationwide, non-exclusive licenses. However, we estimate that the majority of these licensees are Internet Access Service Providers (ISPs) and that most of those licensees are small businesses.

117. Fixed Microwave Services. Microwave services include common carrier, private-operational fixed, and broadcast auxiliary radio services. They also include the Local Multipoint Distribution Service (LMDS), the Digital Electronic Message Service (DEMS), and the 24 GHz Service, where licensees can choose between common carrier and non-common carrier status. At present, there are approximately 36,708 common carrier fixed licensees and 59,291 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. There are approximately 135 LMDS licensees, three DEMS licensees, and three 24 GHz licensees. The Commission has not yet defined a small business with respect to microwave services. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite) and the appropriate size standard for this category under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census Bureau data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had fewer than 1,000 employees and 12 had employment of 1,000 employees or more. Thus, under this SBA category and the associated size standard, the Commission estimates that a majority of fixed microwave service licensees can be considered small.

118. The Commission does not have data specifying the number of these licensees that have more than 1,500 employees, and thus is unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA's small business size standard. Consequently, the Commission estimates that there are up to 36,708 common carrier fixed licensees and up to 59,291 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services that may be small and may be affected by the rules and policies adopted herein. We note, however, that the common carrier microwave fixed licensee category does include some large entities.

119. Broadband Radio Service and Educational Broadband Service. Broadband Radio Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel Multipoint Distribution Service (MMDS) systems and “wireless cable,” transmit video programming to subscribers and provide two-way high-speed data operations using the microwave frequencies of the Broadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as the Instructional Television Fixed Service (ITFS)).

120. BRS — In connection with the 1996 BRS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of no more than $40 million in the previous three calendar years. The BRS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At this time, we estimate that of the 61 small business BRS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent BRS licensees that are considered small entities. After adding the number of small business auction licensees to the number of incumbent licensees not already counted, we find that there are currently approximately 440 BRS licensees that are defined as small businesses under either the SBA or the Commission's rules.

121. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas. The Commission offered three levels of bidding credits: (1) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a 15 percent discount on its winning bid; (2) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (3) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses. Of the ten winning bidders, two bidders that claimed small business status won four licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.

122. EBS —The SBA's Cable Television Distribution Services small business size standard is applicable to EBS. There are presently 2,436 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities. Thus, we estimate that at least 2,336 licensees are small businesses. Since 2007, Cable Television Distribution Services have been defined within the broad economic census category of Wired Telecommunications Carriers. Wired Telecommunications Carriers are comprised of establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” The SBA's small business size standard for this category is all such firms having 1,500 or fewer employees. U.S. Census data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small.

123. Satellite Telecommunications. This category comprises firms “primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” Satellite telecommunications service providers include satellite and earth station operators. The category has a small business size standard of $32.5 million or less in average annual receipts, under SBA rules. For this category, U.S. Census Bureau data for 2012 show that a total of 333 firms operated for the entire year. Of this total, 299 firms had annual receipts of less than $25 million. Consequently, we estimate that the majority of satellite telecommunications providers are small entities.

124. All Other Telecommunications. The “All Other Telecommunications” category is comprised of establishments that are primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing internet services or voice over internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry. The SBA has developed a small business size standard for “All Other Telecommunications,” which consists of all such firms with gross annual receipts of $32.5 million or less. For this category, U.S. Census Bureau data for 2012 show that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million. Consequently, a majority of “All Other Telecommunications” firms potentially affected by our action can be considered small.

125. Cable and Other Subscription Programming. This industry comprises establishments primarily engaged in operating studios and facilities for the broadcasting of programs on a subscription or fee basis. The broadcast programming is typically narrowcast in nature ( e.g., limited format, such as news, sports, education, or youth-oriented). These establishments produce programming in their own facilities or acquire programming from external sources. The programming material is usually delivered to a third party, such as cable systems or direct-to-home satellite systems, for transmission to viewers. The SBA size standard for this industry establishes as small, any company in this category that has annual receipts of $38.5 million or less. According to 2012 U.S. Census Bureau data, 367 firms operated for the entire year. Of that number, 319 operated with annual receipts of less than $25 million a year and 48 firms operated with annual receipts of $25 million or more. Based on this data, the Commission estimates that the majority of firms operating in this industry are small.

126. Cable Companies and Systems (Rate Regulation). The Commission has developed its own small business size standards for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide. Industry data indicate that there are currently 4,600 active cable systems in the United States. Of this total, all but eleven cable operators nationwide are small under the 400,000-subscriber size standard. In addition, under the Commission's rate regulation rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Current Commission records show 4,600 cable systems nationwide. Of this total, 3,900 cable systems have fewer than 15,000 subscribers, and 700 systems have 15,000 or more subscribers, based on the same records. Thus, under this standard as well, we estimate that most cable systems are small entities.

127. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” There are approximately 52,403,705 cable video subscribers in the United States today. Accordingly, an operator serving fewer than 524,037 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that all but nine incumbent cable operators are small entities under this size standard. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million. Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

128. Electric Power Generators, Transmitters, and Distributors. This U.S. industry is comprised of establishments that are primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing internet services or voice over internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry. The closest applicable SBA category is “All Other Telecommunications.” The SBA's small business size standard for “All Other Telecommunications” consists of all such firms with gross annual receipts of $32.5 million or less. For this category, U.S. Census data for 2012 show that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million. Consequently, we estimate that under this category and the associated size standard the majority of these firms can be considered small entities.

129. We expect the rules adopted in the Report and Order will impose new or additional reporting, recordkeeping, and/or other compliance obligations on small entities. In an effort to develop better quality, more useful, and more granular broadband deployment data to advance our statutory universal service obligations, we conclude it is necessary to create a new data collection, calculated to produce broadband deployment maps that will allow the Commission to precisely target scarce universal service dollars to where broadband service is lacking. The Commission also modifies aspects of the Form 477 collection to increase the accuracy of the information collected and to streamline the current reporting requirements to reduce the burdens on filers. We are cognizant of the need to ensure that the benefits resulting from use of the data outweigh the reporting burdens imposed on filers and believe the new collection requirement for fixed providers to submit broadband coverage polygons depicting the areas where they actually have broadband-capable networks and make fixed broadband service available to end-user locations will benefit small entities as well as other providers. WISPA, for example, supports the reporting of broadband coverage polygons because it is less burdensome for its members, who are primarily small fixed wireless providers, and because it is a more accurate means of collecting deployment data.

130. We find that any additional burdens imposed by our new reporting approach will be relatively light for fixed providers in comparison to the significant benefit to be gained from more precise broadband deployment data. For example, many fixed providers are already familiar with GIS files because the Commission and other federal and state agencies use these files in other contexts. Further, some fixed providers already have internal GIS capabilities and/or vendor relationships for the production of GIS files, which should lessen the cost of compliance for small entities. The record suggests that several online resources and software options are available that can help fixed providers create their own polygons of service availability to comply with this requirement, which may lessen the need for small entities to hire professionals. Thus, we find that any additional burdens imposed by our new collection will be relatively light for fixed providers in comparison to the significant benefit to be gained from more accurate and precise broadband deployment data. Although the Commission cannot quantify the cost of compliance with the requirements in the Report and Order, we believe the streamlining and removal of certain reporting requirements should reduce the compliance burdens for small entities that are required to complete Form 477.

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

132. The Commission's actions to modernize and streamline the Form 477 collection and reduce the compliance burdens for filers include measures that should benefit small entities. In considering the comments in the record, we were mindful of the time, money, and resources that some small entities incur to complete the current Form 477. Our actions adopting the filing of broadband coverage polygons should provide some economic relief to small entities when compared to the burdens imposed by the current census-block reporting requirement. We also direct WCB, in coordination with OEA, WTB, and IB, to determine whether any category of very small fixed providers ( e.g., those with less than 250 subscribers (or 1,500 or some other small set number of subscribers) and who are not eligible telecommunications carriers (ETCs) under the USF program) should have additional time in filing their initial reports. In addition, to lessen the burdens on small fixed providers, the Commission and USAC intend to have service-desk help available, as well as clear instructions on the form for the new collection, to aid filers in preparing their broadband coverage polygons. We also believe our actions to streamline the filing process and eliminate certain filing requirements will benefit small entities by reducing the administrative costs they incur to file Form 477.

133. The Commission considered but declined to adopt a requirement to collect fixed broadband deployment data at the street segment level. With a street-level approach, smaller providers would encounter much greater burdens to report deployment data with more precision. For the reasons discussed in the Report and Order, we agree with WISPA that a street-level approach is not appropriate for fixed wireless providers. In addition, we declined to establish technical standards for fixed providers to follow in determining whether fixed broadband is available in an area. Imposing fixed standards could result in increased costs and burdens for small entities and could risk undermining the expertise and on-the-ground knowledge of fixed providers, possibly resulting in less accurate maps. The unique knowledge of fixed broadband providers about their networks puts them in the best position to determine where broadband is available in their service areas.

134. Paperwork Reduction Act. The Report and Order contains new and modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. The Commission, as part of its continuing effort to reduce paperwork burdens, will invite the general public and the Office of Management and Budget to comment on the information collection requirements contained in the Report and Order, as required by the PRA. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198 (44 U.S.C. 3506(c)(4)), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

135. Congressional Review Act. The Commission will send a copy of this Report & Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act, See 5 U.S.C. 801(a)(1)(A).

136. People With Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

137. Accordingly, it is ordered that, pursuant to Sections 1-4, 7, 201, 254, 301, 303, 309, 319, and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 157, 201, 254, 301, 303, 309, 319, and 332, this Report and Order and Second Further Notice of Proposed Rulemaking is adopted.

138. It is further ordered that Parts 1, 43, and 54 of the Commission's rules are amended as set forth in Appendix A.

139. It is further ordered that the Report and Order shall be effective 30 days after publication in the Federal Register , except for rules and portions of the Report and Order that have new or modified information collection requirements that must be approved by the Office of Management and Budget (OMB), which will be effective 30 days after the announcement in the Federal Register of OMB approval of those requirements. OMB approval is necessary for the information collection requirements in 47 CFR 54.1401, 54.1402(b), (c), (d)(2), and (e), plus paragraphs 44-51 and 57-65 of the Report and Order.

140. It is further ordered that the Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, shall send a copy of the Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

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

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 as follows:

NMFS manages the Gulf reef fish fishery, which includes gray triggerfish, under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council (Council) and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) through regulations at 50 CFR part 622. All gray triggerfish weights discussed in this temporary rule are in round weight.

The commercial ACL for Gulf gray triggerfish is 64,100 lb (29,075 kg) (50 CFR 622.41(b)(1)), and the commercial ACT (quota) is 60,900 lb (27,624 kg) (50 CFR 622.39(a)(1)(vi)). The regulations at 50 CFR 622.41(b)(1) require an overage of the commercial ACL be subtracted from the following year's ACL and ACT. Landings of gray triggerfish for the commercial sector in 2018 totaled 64,702 lb (29,348 kg); 602 lb (273 kg), which is 602 lb greater than the 2018 ACL of 64,100 lb (29,075 kg). Accordingly, this temporary rule reduces both the ACL and ACT for the commercial sector for Gulf gray triggerfish by the overage amount of 602 lb (273 kg). The revised commercial ACT (commercial quota) for gray triggerfish is 60,298 lb (27,351 kg), and the revised commercial ACL for gray triggerfish is 63,498 lb (28,802 kg). Both reductions in the ACL and ACT for the commercial sector for gray triggerfish are effective at 12:01 a.m., local time, on August 24, 2019, and they will remain in effect through the end of the fishing year on December 31, 2019.

The Regional Administrator for the NMFS Southeast Region has determined this temporary rule is necessary for the conservation and management of Gulf gray triggerfish and is consistent with the Magnuson-Stevens Act and other applicable laws.

This action is taken under 50 CFR 622.41(b)(1) and is exempt from review under Executive Order 12866.

These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds that the need to immediately implement this action to reduce the commercial ACL and ACT for gray triggerfish constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule pursuant to the authority set forth in 5 U.S.C. 553(b)(B), because such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule establishing the ACL and ACT revision provisions was subject to notice and comment, and all that remains is to notify the public of the reductions. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect gray triggerfish and to provide advance notice of the reductions in ACL and ACT for the commercial sector.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

The fishery for coastal migratory pelagic fish in the Atlantic includes king mackerel, Spanish mackerel, and cobia on the east coast of Florida, and is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. All weights described for Spanish mackerel in the Atlantic EEZ apply as either round or gutted weight.

On November 20, 2014, NMFS published a final rule in the Federal Register to implement Framework Amendment 1 to the FMP (79 FR 69058). That final rule implemented a commercial annual catch limit (equal to the commercial quota) of 3.33 million lb (1.51 million kg) for the Atlantic migratory group of Spanish mackerel (Atlantic Spanish mackerel). Atlantic Spanish mackerel are divided into northern and southern zones for management purposes. The northern zone commercial quota for Atlantic Spanish mackerel is 662,670 lb (300,582 kg) for the current fishing year, which is March 1, 2019, through February 29, 2020 (50 CFR 622.384(c)(2)(i)).

The northern zone for Atlantic Spanish mackerel extends in Federal waters from New York through North Carolina. The northern boundary of the northern zone extends from an intersection point off New York, Connecticut, and Rhode Island at 41°18′16.249″ N Lat., 71°54′28.477″ W long. and proceeds southeast to 37°22′32.75″ N Lat. and the intersection point with the outward boundary of the EEZ. The southern boundary of the northern zone extends from the North Carolina and South Carolina state border, along a line extending in a direction of 135°34′55″ from true north beginning at 33°51′07.9″ N Lat., 78°32′32.6″ W long. to the intersection point with the outward boundary of the EEZ.

Regulations at 50 CFR 622.388(d)(1)(i) require NMFS to close the commercial sector for Atlantic Spanish mackerel in the northern zone when the commercial quota for that zone is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the commercial quota of 662,670 lb (300,582 kg) for Atlantic Spanish mackerel in the northern zone will be reached by August 24, 2019. Accordingly, the commercial sector for Atlantic Spanish mackerel in the northern zone is closed effective at 12:01 a.m., local time, on August 24, 2019, through February 29, 2020, the end of the current fishing year.

During the commercial closure, a person on board a vessel that has been issued a valid Federal permit to harvest Atlantic Spanish mackerel may continue to retain this species in the northern zone under the recreational bag and possession limits specified in 50 CFR 622.382(a)(1)(iii) and (a)(2), as long as the recreational sector for Atlantic Spanish mackerel is open (50 CFR 622.384(e)(1)).

Also during the closure, Atlantic Spanish mackerel from the closed zone, including those harvested under the recreational bag and possession limits, may not be purchased or sold. This prohibition does not apply to Atlantic Spanish mackerel from the closed zone that were harvested, landed ashore, and sold prior to the closure and were held in cold storage by a dealer or processor (50 CFR 622.384(e)(2)).

The RA for the NMFS Southeast Region has determined this temporary rule is necessary for the conservation and management of Atlantic Spanish mackerel and is consistent with the Magnuson-Stevens Act and other applicable laws.

This action is taken under 50 CFR 622.8(b), 622.384(e)(2), and 622.388(d)(1)(i) and is exempt from review under Executive Order 12866.

These measures are exempt from the procedures of the Regulatory Flexibility Act, because the temporary rule is issued without opportunity for prior notice and opportunity for comment.

This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule implementing the commercial quota and the associated AM has already been subject to notice and public comment, and all that remains is to notify the public of the closure. Additionally, allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to immediately implement this action to protect the Atlantic Spanish mackerel stock, because the capacity of the fishing fleet allows for rapid harvest of the commercial quota. Prior notice and opportunity for public comment would require time and could potentially result in a harvest well in excess of the established commercial quota.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in effectiveness of this action under 5 U.S.C. 553(d)(3).

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

The 2019 Pacific cod TAC specified for catcher vessels using trawl gear in the BSAI is 35,660 metric tons (mt) as established by the final 2019 and 2020 harvest specifications for groundfish in the BSAI (84 FR 9000, March 13, 2019),

The 2019 Pacific cod TAC specified for vessels using jig gear in the BSAI is 1,059 mt as established by the final 2019 and 2020 harvest specifications for groundfish in the BSAI (84 FR 9000, March 13, 2019), and one reallocation (84 FR 2068, February 6, 2019).

The 2019 Pacific cod TAC specified for catcher vessels greater than or equal to 60 feet (18.3 m) LOA using hook-and-line gear in the BSAI is 321 mt as established by the final 2019 and 2020 harvest specifications for groundfish in the BSAI (84 FR 9000, March 13, 2019).

The 2019 Pacific cod TAC allocated to catcher vessels less than 60 feet (18.3 meters (m)) length overall (LOA) using hook-and-line or pot gear in the BSAI is 4,414 mt as established by the final 2019 and 2020 harvest specifications for groundfish in the BSAI (84 FR 9000, March 13, 2019) and one reallocation (84 FR 2068, February 6, 2019).

The Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that catcher vessels using trawl gear will not be able to harvest 1,000 mt of the 2019 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)( 9 ), jig vessels will not be able to harvest 500 mt of the 2019 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)( 1 ), and catcher vessels greater than or equal to 60 feet (18.3 m) LOA using hook-and-line gear will not be able to harvest 321 mt of the 2018 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)( 3 ).

Therefore, in accordance with § 679.20(a)(7)(iii)(A), NMFS reallocates 1,000 mt from the trawl catcher vessel apportionment and 321 mt from the catcher vessels greater than or equal to 60 feet (18.3 m) LOA using hook-and-line gear apportionment to the annual amount specified for catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear. Also, in accordance with § 679.20(a)(7)(iv)(C), NMFS reallocates 500 mt of Pacific cod from the jig gear apportionment to the annual amount specified for catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.

The harvest specifications for Pacific cod included in final 2019 and 2020 harvest specifications for groundfish in the BSAI (84 FR 9000, March 13, 2019) and one reallocation (84 FR 2068, February 6, 2019 are revised as follows: 34,660 mt to catcher vessels using trawl gear, 559 mt to vessels using jig gear, 0 mt to catcher vessels greater than or equal to 60 feet (18.3 m) LOA using hook-and-line gear, and 6,235 mt to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocations of Pacific cod to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear. Since the fishery is currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 16, 2019.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

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

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

The 2019 TAC of Atka mackerel, in the CAI, allocated to vessels participating in the BSAI trawl limited access sector fishery was established as a directed fishing allowance of 1,278 metric tons by the final 2019 and 2020 harvest specifications for groundfish in the BSAI (84 FR 9000, March 13, 2019).

In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Atka mackerel in the CAI by vessels participating in the BSAI trawl limited access sector fishery. While this closure is effective, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA) finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of the Atka mackerel directed fishing in the CAI for vessels participating in the BSAI trawl limited access sector fishery. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 16, 2019.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

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