EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0142R1, dated December 9, 2019 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Helicopters Model AS332C, AS332C1, AS332L, and AS332L1 helicopters. EASA advises that during the first flight of an Airbus Helicopters Model AS332L helicopter after a retrofit that re-installed the de-icing system, vibrations around the 12Hz frequency were observed. Subsequent flight tests and analysis determined that this vibration is due the specific helicopter configuration. Factors that contributed to the vibration included simultaneous installation of riveted main frames X3855 and X5295 (pre-Airbus Helicopter modification 0722907), additional weight created by parts of the rotor de-icing system on the main rotor head (the distributor and de-icing harnesses), and removable parts (hoist arm and hoists) of the dual hoist installation. EASA advises that this condition, if not corrected, could generate divergent aeromechanic coupling between the helicopter structure and the rotor, possibly resulting in mechanical failure of structural parts and loss of control of the helicopter.

EASA issued Emergency AD 2018-0142-E, dated July 6, 2018, for certain Model AS332C, AS332C1, AS332L, and AS332L1 helicopters, which required the removal of removable parts of the dual hoist installation or removal of the de-icing system. Since EASA Emergency AD 2018-0142-E, dated July 6, 2018, was issued, additional flight tests demonstrated that Model AS332L and AS332L1 helicopters do not exhibit the vibration at 12Hz when limiting the operational flight envelope and Vne (never-exceed speed). As a result, EASA advises that revising the RFM for Model AS332L and AS332L1 helicopters to incorporate certain limitations and installing a locally made placard is an optional method of compliance for Model AS332L and AS332L1 helicopters.

You may examine the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0454.

Airbus Helicopters has issued Emergency Alert Service Bulletin AS332 01.00.91, Revision 1, dated December 4, 2019 (AS332 01.00.91 Rev 1). This service information describes procedures for removing parts of the dual hoist installation or removing the de-icing system.

Airbus Helicopters has also issued Emergency Alert Service Bulletin AS332 01.00.96, Revision 0, dated December 4, 2019. This service information describes procedures for amending the RFM of Model AS332L and AS332L1 helicopters to limit the flight envelope and the Vne and installing a placard. This service information also describes procedures for removing parts of the dual hoist installation or removing the de-icing system.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Airbus Helicopters issued Emergency Alert Service Bulletin AS332 01.00.91, Revision 0, dated July 3, 2018 (AS332 01.00.91 Rev 0). AS332 01.00.91 Rev 0 contains the same procedures as AS332 01.00.91 Rev 1; however, AS332 01.00.91 Rev 1 removes Model AS332L and AS332L1 helicopters from the effectivity.

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 FAA has been notified of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this AD after evaluating all pertinent information and determining 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 the service information described previously.

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.

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 of vibrations around the 12Hz frequency that are due to the specific helicopter configuration, which could generate divergent aeromechanic coupling between the helicopter structure and the rotor, possibly resulting in mechanical failure of structural parts and loss of control of the helicopter. The FAA determined a compliance time of 7 days is required to correct the unsafe condition. This compliance time is shorter than the time necessary for the public to comment and for publication of the final rule.

Accordingly, notice and opportunity for prior public comment are impracticable pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the reasons stated above, 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.

This AD is a final rule that involves requirements affecting flight safety, and was not preceded by notice and opportunity for public comment. However, 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-2020-0454; Product Identifier 2019-SW-113-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 https://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 considers this AD interim action. If final action is later identified, the FAA might consider further rulemaking then.

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.

The FAA estimates that this AD affects 12 helicopters of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA issued AD 2019-12-10, Amendment 39-19665 (84 FR 30588, June 27, 2019) (“AD 2019-12-10”), which applied to all Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes. AD 2019-12-10 required revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. The FAA issued AD 2019-12-10 to address reduced structural integrity of the airplane. AD 2019-12-10 specified that accomplishing the revision required by that AD terminated all requirements of AD 2017-06-06, Amendment 39-18830 (83 FR 8328, February 27, 2018), and the requirements of paragraph (g) of AD 2012-12-07, Amendment 39-17087 (77 FR 37788, June 25, 2012).

Since the FAA issued AD 2019-12-10, the agency has determined that new or more restrictive airworthiness limitations are necessary.

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0024, dated February 13, 2020 (“EASA AD 2020-0024”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes. EASA AD 2020-0024 superseded EASA AD 2018-0159, dated July 25, 2018 (which corresponds to FAA AD 2019-12-10).

This AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The FAA is issuing this AD to address reduced structural integrity of the airplane. See the MCAI for additional background information.

EASA AD 2020-0024 describes new or more restrictive airworthiness limitations for airplane structures and safe life limits.

This AD also requires Fokker Engineering Report SE-623, Fokker 70/100 Airworthiness Limitations Section, Part 2—(Structure ALIs and Safe Life Items), Issue 18, dated June 14, 2018, which the Director of the Federal Register approved for incorporation by reference as of August 1, 2019 (84 FR 30588, June 27, 2019).

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 FAA has been notified of the unsafe condition described in the MCAI referenced above. The FAA is issuing this AD because the FAA 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 retains the requirements of AD 2019-12-10. This AD also requires revising the existing maintenance or inspection program, as applicable, to incorporate additional new or more restrictive airworthiness limitations, which are specified in EASA AD 2020-0024 described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.

This AD requires revisions to certain operator maintenance documents to include new actions ( e.g., inspections). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (m)(1) of this AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially 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. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, EASA AD 2020-0024 is incorporated by reference in this AD. This AD, therefore, requires compliance with EASA AD 2020-0024 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 2020-0024 that is required for compliance with EASA AD 2020-0024 is available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0450.

The FAA's process of incorporating by reference MCAI ADs as the primary source of information for compliance with corresponding FAA ADs has been limited to certain MCAI ADs (primarily those with service bulletins as the primary source of information for accomplishing the actions required by the FAA AD). However, the FAA is now expanding the process to include MCAI ADs that require a change to airworthiness limitation documents, such as airworthiness limitation sections.

For these ADs that incorporate by reference an MCAI AD that changes airworthiness limitations, the FAA requirements are unchanged. Operators must revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in the new airworthiness limitation document. The airworthiness limitations must be followed according to 14 CFR 91.403(c) and 91.409(e).

Since there are currently no domestic operators of these products, notice and opportunity for public comment before issuing this AD are unnecessary. 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-2020-0450; Product Identifier 2020-NM-034-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 https://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.

Currently, there are no affected U.S.-registered airplanes. For any affected airplane that may be imported and placed on the U.S. Register in the future, the FAA provides the following cost estimates to comply with this AD:

The FAA has determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although the FAA recognizes that this number may vary from operator to operator. In the past, the FAA has estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the FAA estimates the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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.

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

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2019-36, dated October 18, 2019 (“AD CF-2019-36”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain De Havilland Aircraft of Canada Limited Model DHC-8-400 series airplanes. You may examine the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0101.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain De Havilland Aircraft of Canada Limited Model DHC-8-400 series airplanes. The NPRM published in the Federal Register on February 24, 2020 (85 FR 10344). The NPRM was prompted by a report that certain elevator PCU arm fittings have nonconforming fillet radii. The NPRM proposed to require an inspection for affected elevator PCU assemblies, inspections of affected elevator PCU arm fittings for nonconforming fillet radii and cracks, replacement if necessary, and re-identification of the affected elevator PCU assemblies. The FAA is issuing this AD to address elevator PCU assemblies with nonconforming fillet radii, which could lead to premature failure of the fitting and a jam in one elevator; if the fittings on both elevators fail, a complete loss of elevator control could occur. See the MCAI for additional background information.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA received no comments on the NPRM or on the determination of the cost to the public.

The FAA reviewed the relevant data and determined that air safety and the public interest require adopting this final rule as proposed, except for minor editorial changes. The FAA has determined that these minor changes:

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

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

De Havilland Aircraft of Canada Limited has issued Service Bulletin 84-55-10, Revision A, dated July 25, 2019. This service information describes procedures for an inspection for affected elevator PCU assemblies, inspections of affected elevator PCU arm fittings for nonconforming fillet radii and cracks, replacement if necessary, and re-identification of the affected elevator PCU assemblies. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 38 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain part-numbered Rockwell Collins Pro Line 4 and Pro Line 21 FMSs. The NPRM published in the Federal Register on December 6, 2018 (83 FR 62736).

The NPRM was prompted by a flight inspection on a Bombardier Model CRJ-200 airplane, during which Nav Canada, which is Canada's civil air navigation service provider, observed the FMS map displaying an incorrect turn for the Fort St. John airport instrument landing system runway 29 missed approach while using temperature compensation. Nav Canada assumed this was only an issue with the map display and reported the incident to Rockwell Collins. Rockwell Collins subsequently determined that an error in the design of the Pro Line 4 and Pro Line 21 FMC software causes changes to the procedure-defined turn direction when the procedure has been significantly modified. The FMS removes the planned database turn direction when the flight crew edits the altitude climb field, and the flight crew may not notice the change during climb. The FMS also removes the planned database turn direction if the flight crew uses the temperature compensation to edit the altitude climb field, which may go unnoticed by the flight crew with the increased workload involved with a missed approach procedure. Editing the altitude or using temperature compensation does not change the flight segment. However, due to the design error, the software thinks the flight segment has changed. The change of the planned turn direction can occur for either left or right turns.

The FMS commanding incorrect turn direction may result in a collision or controlled flight into terrain.

The NPRM proposed to require disabling the automatic temperature compensation feature of the FMS through the CSU and revising the AFM Limitations section. The FAA is issuing this AD to address the unsafe condition on these products.

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.

Bombardier Commercial Aircraft (Bombardier) and Endeavor Air (Endeavor) requested the FAA remove paragraph (g), which proposed to require disabling the automatic temperature compensation feature on the CSU. These commenters stated that disabling this feature would also disable the temperature compensation calculator, which would increase crew workload and introduce error by necessitating that pilots manually calculate this information.

While the FAA agrees that performing manual temperature compensation calculations or using standard cold temperature altitude correction charts increases flight crew workload, the FAA finds that these are acceptable piloting tasks. The FMS and its built-in temperature compensation feature are not required under the FAA's airworthiness standards; rather, the temperature compensation feature of the FMS is an aid to the flight crew. Additionally, disabling the temperature compensation feature is necessary to address the unsafe condition. The FAA did not change the AD based on this comment.

Bombardier, Endeavor, and Collins Aerospace (Collins) requested the FAA revise the AFM Limitations for altitude edits. The NPRM proposed to require the limitation in Rockwell Collins Service Information Letter (SIL) FMC-XX00-18-1, dated June 27, 2018, which prohibits editing altitudes on departure, approach, and missed approach procedures. The commenters requested the FAA change the limitation to only prohibit editing altitudes on departure and missed approach procedures, and eliminate the limitation for approach procedures. Collins stated that following this limitation during approach prior to the missed approach could adversely impact Vertical Navigation (VNAV) safety and crew workload because it results in misleading VNAV alerts and displays prior to the missed approach point.

The FAA agrees. Rockwell Collins has revised the SIL and issued SIL FMC-XX00-18-1, Revision 1, dated February 5, 2019, which contains the limitation language requested by the commenters. This final rule requires revising the AFM to add the information in SIL FMC-XX00-18-1, Revision 1, dated February 5, 2019.

Endeavor requested the FAA reduce the time to revise the AFM from 12 months to 30 days.

The FAA does not agree. The FAA considered the variety of aircraft types and operations that would be affected by this AD and determined a 12-month compliance time is appropriate for both the AFM revisions and the requirement to disable the temperature compensation feature. The FAA did not change this AD based on this comment because 12 months after the effective date of this AD is necessary to allow the owner/operator a reasonable amount of time to perform the hardware modification. The AFM limitations cannot be implemented without the hardware change.

WR Ryan stated that this matter is not serious enough to warrant an AD. The commenter also stated that this issue is being exaggerated, as Collins will eventually fix the problem. The FAA infers the commenter wants the FAA to withdraw the NPRM.

The FAA does not agree. The FAA issues an airworthiness directive when it finds an unsafe condition exists in a product and the condition is likely to exist or develop in other products of the same type design. The FAA has determined the FMS design error is an unsafe condition. While an operator may choose to comply with the service information released by Rockwell Collins, not all operators are required to do so. In order for the corrective actions in a service document to become mandatory, and to correct the unsafe condition identified in the NPRM, the FAA must issue an AD. The FAA did not change this AD based on this comment.

WR Ryan stated the FAA estimated labor costs of $85 per work hour in the NPRM, while the majority of maintenance shops charge labor rates of $120 or more an hour. The FAA infers the commenter wants the FAA to revise the labor rate in its estimated cost of complying with the AD.

The FAA does not agree with this comment. The labor rate of $85 per work-hour is provided by the FAA Office of Aviation Policy and Plans for the FAA to use when estimating the labor costs of complying with AD requirements. The FAA did not change this AD based on this comment.

Bombardier stated the FAA's Wichita ACO Branch lacks the legal authority under 49 U.S.C. 44701 to issue an AD addressing a component and requiring changes to an AFM. Bombardier requested the FAA's Wichita ACO Branch coordinate the proposed AD with the FAA's New York ACO Branch and consider whether the AD should instead address the aircraft. Bombardier disagreed with the FAA's proposed AD because Transport Canada, the responsible authority for the state of design for its airplanes, has already issued an AD covering this same unsafe condition. Alternatively, Bombardier requested an extension to the NPRM commenting period to allow Bombardier and the New York ACO Branch to provide input to the Wichita ACO Branch.

The FAA does not agree. Although Canada is the state of design for Bombardier products, the United States is the state of design for Rockwell Collins products. Under the authority of 49 U.S.C. 44701 and the FAA's regulations regarding ADs (14 CFR part 39), the FAA issues an AD addressing a product (aircraft, engine, propeller, or appliance) that has an unsafe condition if the condition is likely to exist or develop in other products of the same type design. The FMS is an appliance, as that term is defined in 14 CFR 1.1, that may be installed in multiple aircraft types. Contrary to Bombardier's suggestion, 49 U.S.C. 44701 does not require the FAA to adopt the Transport Canada AD. Rather, 49 U.S.C. 44701(e)(5) permits the FAA to either accept a foreign AD (under certain conditions) or issue an FAA AD if determined necessary for safety. The Transport Canada AD for this issue applies only to Bombardier airplanes. The FAA determined corrective action is necessary for U.S. operators of all aircraft with an FMS installed.

The FAA also notes that its Wichita ACO Branch did not issue the NPRM. The NPRM was coordinated with all appropriate FAA offices and subsequently issued by the Deputy Director of the Policy and Innovation Division (AIR-601) of the FAA's Aircraft Certification Service. The FAA has not changed the AD based on this comment.

Collins requested the FAA replace some of the information in the preamble with text from Rockwell Collins Operational Service Bulletin 0166-l7R5. Collins stated the description in the NPRM does not accurately describe the issue. According to Collins, the design error is that the FMS removes the planned turn direction if the crew manually edits or uses temperature compensation to edit the altitude climb field. In addition, Collins stated the FMS does not always turn in an incorrect direction, but rather only when the shortest turn differs from the planned turn.

The FAA partially agrees. For clarification purposes, the FAA has revised the referenced text in accordance with Collins' comment. However, the FAA disagrees with replacing the referenced text with the description from Rockwell Collins Operational Service Bulletin 0166-17R5. The specific language requested by the commenter is a detailed engineering description of the FMS design error that is appropriate for a service bulletin.

The Air Line Pilots Association and an anonymous commenter supported the NPRM.

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

The FAA reviewed Rockwell Collins Service Information Letter, CSU-XX00-18-1, dated June 27, 2018. The service letter contains procedures for disabling the automatic temperature compensation option in Pro Line 4 and Pro Line 21 FMC systems. The FAA also reviewed Rockwell Collins Service Information Letter FMC-XX00-18-1, Revision 1, dated February 5, 2019. The service letter provides instructions for revising the Limitations section of the AFM by adding prohibitions on editing altitudes for specific Pro Line 4 and Pro Line 21 Flight Management Systems. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 2,855 products installed on airplanes of U.S. registry.

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

The FAA issued AD 2020-03-12, Amendment 39-19837 (85 FR 7863, February 12, 2020) (“AD 2020-03-12”), which applied to all Airbus SAS Model A350-941 and -1041 airplanes. AD 2020-03-12 required revising the existing AFM to define a liquid-prohibited zone in the flight deck and provide procedures following liquid spillage on the center pedestal. The FAA issued AD 2020-03-12 to address the potential for dual-engine uncommanded engine inflight shutdown (IFSD), possibly resulting in a forced landing with consequent damage to the airplane and injury to occupants.

Since the FAA issued AD 2020-03-12, Airbus developed mod 116010, introducing a removable cover for the ICP, which protects the ICP completely, including engine master levers, thumbwheels, and rotary knob, and provided modification instructions. Airbus also published a new AFM temporary revision (TR) defining a liquid-prohibited zone in the cockpit, procedures for ICP removable cover use, and the procedures to be followed in the case of inadvertent liquid spillage on the center pedestal. The FAA has determined that the removable ICP cover must be installed and the existing AFM must be revised to include these new procedures.

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0090, dated April 20, 2020 (“EASA AD 2020-0090”) (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. EASA AD 2020-0090 supersedes EASA Emergency AD 2020-0020-E, dated February 5, 2020, corrected February 6, 2020 (which corresponds to FAA AD 2020-03-12).

This AD was prompted by two reports of abnormal operation of the components of the ENG START panel or Electronic Centralized Aircraft Monitoring (ECAM) Control Panel (ECP) due to liquid spillage in the system, and the subsequent uncommanded engine IFSD of one engine in each case. This AD was also prompted by the FAA's determination that a removable integrated control panel (ICP) cover must be installed to prevent damage from spillage and that the existing AFM must be revised. The FAA is issuing this AD to address the potential for dual-engine IFSD, possibly resulting in a forced landing with consequent damage to the airplane and injury to occupants. See the MCAI for additional background information.

Although this AD does not explicitly restate the requirements of AD 2020-03-12, this AD retains all of the requirements of AD 2020-03-12. Those requirements are referenced in EASA AD 2020-0090, which, in turn, is referenced in paragraph (g) of this AD.

EASA AD 2020-0090 describes procedures for installation of the ICP removable cover in the cockpit and amendment of the AFM to define a liquid-prohibited zone in the cockpit, provide procedures for ICP removable cover use, and provide procedures following liquid spillage on the center pedestal. 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 FAA has been notified of the unsafe condition described in the MCAI referenced above. The FAA is issuing this AD because the FAA 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 2020-0090 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 initially 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. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, in EASA AD 2020-0090 is incorporated by reference in this AD. This AD, therefore, requires compliance with EASA AD 2020-0090 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 2020-0090 that is required for compliance with EASA AD 2020-0090 is available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0452.

The FAA considers this AD interim action. If final action is later identified, the FAA might consider further rulemaking then.

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 abnormal operation of the components of the ENG START panel or ECP due to liquid spillage in the system could result in dual-engine IFSD, possibly resulting in a forced landing with consequent damage to the airplane and injury to occupants. 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.

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 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-2020-0452; Product Identifier 2020-NM-062-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 https://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:

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.

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:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace at Mountain Home Municipal Airport, Mountain Home, ID, to ensure the safety and management of Instrument Flight Rules (IFR) operations at the airport.

The FAA included exclusionary language in the Final Rule that becomes effective on July 16, 2020 (85 FR 17744, March 31, 2020). This action will update the language in the final rule, but will not affect the airspace's charted boundaries.

Class E5 airspace designations are published in paragraph 6005 of FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11D dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11D lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is amending Title 14, Code of Federal Regulations (14 CFR) part 71 by removing the exclusionary language from Mountain Home Municipal Airport's Class E airspace extending upward from 700 feet above the surface. If the exclusionary language is not removed, it will require the FAA's Aeronautical Information Service to recalculate the Municipal Airport's airspace boundaries whenever changes occur to Mountain Home Air Force Base's surface areas but will not affect the airspace's charted boundaries.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial, and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

A. Background 1. Statutory Authority

Section 104(b)(1)(B) of the Consumer Product Safety Improvement Act (CPSIA), also known as the Danny Keysar Child Product Safety Notification Act, requires the Commission to promulgate consumer product safety standards for durable infant or toddler products. The law requires these standards to be “substantially the same as” applicable voluntary standards or more stringent than the voluntary standards if the Commission concludes that more stringent requirements would further reduce the risk of injury associated with the product.

The CPSIA also sets forth a process for updating CPSC's durable infant or toddler standards when the voluntary standard upon which the CPSC standard was based is changed. Section 104(b)(4)(B) of the CPSIA provides that if an organization revises a standard that has been adopted, in whole or in part, as a consumer product safety standard under this subsection, it shall notify the Commission. In addition, the revised voluntary standard shall be considered to be a consumer product safety standard issued by the Commission under section 9 of the Consumer Product Safety Act (15 U.S.C. 2058), effective 180 days after the date on which the organization notifies the Commission (or such later date specified by the Commission in the Federal Register ) unless, within 90 days after receiving that notice, the Commission notifies the organization that it has determined that the proposed revision does not improve the safety of the consumer product covered by the standard and that the Commission is retaining the existing consumer product safety standard.

On December 6, 2013, the Commission published a final rule issuing a mandatory standard for hand-held infant carriers that incorporated by reference the standard in effect at that time, ASTM F2050-13a, Standard Consumer Specification for Hand-Held Infant Carriers, with one modification in the definition of the product, to clarify that semi-rigid carriers fall within the scope of the standard. 78 FR 73415. The ASTM standard for hand-held infant carriers, ASTM F2050-19, Standard Consumer Safety Specification for Hand-Held Infant Carries, applies to hand-held infant carriers that are rigid ( e.g., infant car seat removed from the car) or semi-rigid ( e.g., Moses baskets). A hand-held infant carrier seat often serves as an infant car seat and also can be used with strollers and travel systems. A hand-held bassinet/cradle includes products such as carriage baskets (removed from a stroller base) and Moses baskets (those with handles). The standard was codified in the Commission's regulations at 16 CFR part 1225. Since publication of ASTM F2050-13a, the current mandatory standard, ASTM has published two revisions to ASTM F2050. ASTM did not notify CPSC of the first revision. The second revision, ASTM F2050-19 was approved on December 15, 2019, and published in January 2020. ASTM officially notified the Commission of this revision on February 5, 2020. The rule is incorporating ASTM F2050-19 as the mandatory standard.

Under section 104(b)(4)(B) of the CPSIA, unless the Commission determines that ASTM's revision of a voluntary standard that is a CPSC mandatory standard “does not improve the safety of the consumer product covered by the standard,” the revised voluntary standard becomes the new mandatory standard. As discussed below, the Commission determines that the changes made in ASTM F2050-16 and -19 are neutral or improve the safety of hand-held infant carriers. Therefore, the Commission will allow the ASTM F2050-19 to become effective as a mandatory consumer product safety standard under the statute, effective August 3, 2020.

On February 1, 2016, ASTM approved a revised version ASTM F2050 and published ASTM F2050-16, but ASTM did not notify CPSC of the revision. The 2016 revision contained several editorial non-substantive changes and one substantive change, as described below.

Minor formatting changes were made to bring the standard into accord with ASTM form and style guidelines ( e.g., “5s” to “5 s”, punctuation at the end of a sentence, and removing a repeated word). We find that all of the non-substantive changes made in ASTM F2050-16 are editorial in nature, and therefore, are neutral regarding safety for hand-held infant carriers.

In section 8.3.2.1, hand-held bassinets/cradles were exempt from the requirement to display a “NEVER leave child unattended” warning message. Although we generally assesses exemptions as a reduction in safety, in the case of this warning message, the exemption is unlikely to reduce safety because it is targeted at bassinets and cradles that are intended for sleep. In such a case, the caregiver would be rightly expected to leave a sleeping child unattended in a bassinet. Therefore, we conclude this exemption is neutral regarding safety.

In December 2019, ASTM revised ASTM F2050-19. These changes included non-substantive changes and one substantive change. The resulting standard is ASTM F2050-19, which was published in January 2020. The 2019 revision contained several editorial non-substantive changes and two substantive changes as described below.

A number of minor and editorial changes were made throughout ASTM F2050-19 that do not affect the safety of hand-held infant carriers. These include:

• In section 1.7, “safety and health” was changed to “safety, health, and environmental.”

• Section 1.8 was added, stating that ASTM developed the standard in accordance with principles recognized by the World Trade Organization.

• Changes to unit expressions bring the standard into accordance with ASTM form and style guidelines. For example, the revision added a unit of measurement for each numerical value—“73 °F ± 9 °F.” instead of “73 ± 9 °F” and “minute” changed to “min.”

• Minor spelling changes ( e.g., “gage” to “gauge” in 7.4.2.1)

• Definition for acronyms added ( e.g., “EPS (expanded polystyrene), EPP (expanded polypropylene)” in note 3).

All of the non-substantive changes made in ASTM F2050-19 are editorial in nature and are neutral regarding safety for hand-held infant carriers.

There are two substantive changes in ASTM F2050-19 that impact the safety of hand-held infant carriers, as described below.

• In section 3.1.3, the definition of “hand-held infant carrier” changed to include “semi-rigid.” This change harmonizes ASTM F2050 with the definition in16 CFR part 1225, and is, therefore, an improvement in safety over the previous standard.

• In section 9.2.4.1, ASTM added a new warning icon and warning statement regarding the fall hazard with shopping cart use. Specifically, the message “Fall Hazard: The carrier can fall from the shopping cart. Do not use on shopping cart,” and a related icon must now appear in the instructional literature for a hand-held infant carrier. We conclude that this change is an improvement in safety because it alerts the caregiver to an additional hazard.

The two substantive changes made to ASTM F2050-19 improve the safety of hand-held infant carriers, and the non-substantive changes are neutral regarding safety.

In December 2013, the Commission incorporated by reference ASTM F2050-13a, with one modification in 16 CFR 1225.2(b)(1) to the definition of “hand-held infant carrier” in section 3.1.3 of ASTM F2050-13a to clarify that semi-rigid carriers fall within the scope of the standard. The modification in 16 CFR 1225.2(b)(1) is no longer necessary because ASTM F2050-19 includes semi-rigid products in the definition. Therefore, the rule incorporates by reference ASTM F2050-19 and removes 16 CFR 1225.2(b)(1).

The Office of the Federal Register (OFR) has regulations concerning incorporation by reference. 1 CFR part 51. Under these regulations, agencies must discuss, in the preamble to the final rule, ways that the materials the agency incorporates by reference are reasonably available to interested persons and how interested parties can obtain the materials. In addition, the preamble to the final rule must summarize the material. 1 CFR 51.5(b).

In accordance with the OFR's requirements, section A of this preamble summarizes the major provisions of the ASTM F2050-19 standard that the Commission incorporates by reference into 16 CFR part 1225. The standard is reasonably available to interested parties, and interested parties may purchase a copy of the standard from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 USA; phone: 610-832-9585; www.astm.org. In addition, once the rule becomes effective, a read-only copy of the standard will be available for viewing on the ASTM website at: https://www.astm.org/READINGLIBRARY/. A copy of the standard can also be inspected at CPSC's Division of the Secretariat, U.S. Consumer Product Safety Commission, Room 820, 4330 East-West Highway, Bethesda, MD 20814; telephone: 301-504-7479; email: amills@cpsc.gov.

Section 14(a) of the CPSA requires manufacturers of products subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard, or regulation under any other act enforced by the Commission, to certify that the products comply with all applicable CPSC requirements. 15 U.S.C. 2063(a). Such certification must be based on a test of each product, or on a reasonable testing program, or, for children's products, on tests on a sufficient number of samples by a third party conformity assessment body accredited by the Commission to test according to the applicable requirements. As noted, standards issued under section 104(b)(1)(B) of the CPSIA are “consumer product safety standards.” Thus, they are subject to the testing and certification requirements of section 14 of the CPSA.

Because hand-held infant carriers are children's products, a CPSC-accepted third party conformity assessment body must test samples of the products. These products also must comply with all other applicable CPSC requirements, such as the lead content requirements in section 101 of the CPSIA, 1 the phthalates prohibitions in section 108 of the CPSIA and 16 CFR part 1307, 2 the tracking label requirement in section 14(a)(5) of the CPSA, 3 and the consumer registration form requirements in section 104(d) of the CPSIA. 4

In accordance with section 14(a)(3)(B)(iv) of the CPSIA, the Commission has previously published a notice of requirements (NOR) for accreditation of third party conformity assessment bodies for testing portable bed rails (78 FR 73415, December 6, 2013). The NOR provided the criteria and process for our acceptance of accreditation of third party conformity assessment bodies for testing hand-held infant carriers to 16 CFR part 1225. The NORs for all mandatory standards for durable infant or toddler products are listed in the Commission's rule, “Requirements Pertaining to Third Party Conformity Assessment Bodies,” codified at 16 CFR part 1112.

None of the test methods have been changed in the revised standard ASTM F2050-19. Therefore, testing laboratories that are currently CPSC-accepted, have demonstrated competence for testing in accordance with ASTM F2050-13a, and will have the competence to source a new sheet and conduct the testing to the new standard under the revised standard ASTM F2050-19. Therefore, the Commission considers the existing CPSC-accepted laboratories for testing to ASTM F2050-13a to be capable of testing to ASTM F2050-19 as well. Accordingly, the existing NOR for this standard will remain in place, and CPSC-accepted third party conformity assessment bodies are expected to update the scope of the testing laboratories' accreditation to reflect the revised standard in the normal course of renewing their accreditation.

The Commission is issuing this rule as a direct final rule. Although the Administrative Procedure Act (APA; 5 U.S.C. 551-559) generally requires agencies to provide notice of a rule and an opportunity for interested parties to comment on it. Section 553 of the APA provides an exception when the agency, “for good cause,” finds that notice and comment are “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). The Commission concludes that when the Commission updates a reference to an ASTM standard that the Commission has incorporated by reference under section 104(b) of the CPSIA, notice and comment are not necessary.

Under the process set out in section 104(b)(4)(B) of the CPSIA, when ASTM revises a standard that the Commission has previously incorporated by reference under section 104(b)(1)(b) of the CPSIA, that revision will become the new CPSC standard, unless the Commission determines that ASTM's revision does not improve the safety of the product. Thus, unless the Commission makes such a determination, the ASTM revision becomes CPSC's standard, by operation of law. The Commission is allowing ASTM F2050-19 to become CPSC's new standard. The purpose of this direct final rule is merely to update the reference in the Code of Federal Regulations (CFR) so that it reflects accurately the version of the standard that takes effect by statute. The rule updates the reference in the CFR, but under the terms of the CPSIA, ASTM F2050-19 takes effect as the new CPSC standard for hand-held infant carriers, even if the Commission did not issue this rule. Thus, public comments would not impact the substantive changes to the standard or the effect of the revised standard as a consumer product safety standard under section 104(b) of the CPSIA. Under these circumstances, notice and comment are not necessary.

In Recommendation 95-4, the Administrative Conference of the United States (ACUS) endorsed direct final rulemaking as an appropriate procedure to expedite rules that are noncontroversial and that are not expected to generate significant adverse comment. See 60 FR 43108 (August 18, 1995). ACUS recommends that agencies use the direct final rule process when they act under the “unnecessary” prong of the good cause exemption in 5 U.S.C. 553(b)(B). Consistent with the ACUS recommendation, the Commission is publishing this rule as a direct final rule because CPSC does not expect any significant adverse comments.

Unless CPSC receives a significant adverse comment within 30 days of this notification, the rule will become effective on August 3, 2020. In accordance with ACUS's recommendation, the Commission considers a significant adverse comment to be “one where the commenter explains why the rule would be inappropriate,” including an assertion challenging “the rule's underlying premise or approach,” or a claim that the rule would be “ineffective or unacceptable without change.” 60 FR 43108, 43111. As noted, this rule merely updates a reference in the CFR to reflect a change that occurs by statute.

If the Commission receives a significant adverse comment, the Commission would withdraw this direct final rule. Depending on the comments and other circumstances, the Commission may then incorporate the adverse comment into a subsequent direct final rule or publish a notice of proposed rulemaking, providing an opportunity for public comment.

The Regulatory Flexibility Act (RFA) generally requires that agencies review proposed and final rules for their potential economic impact on small entities, including small businesses, and prepare regulatory flexibility analyses. 5 U.S.C. 603 and 604. The RFA applies to any rule that is subject to notice and comment procedures under section 553 of the APA. Id. As explained, the Commission has determined that notice and comment are not necessary for this direct final rule. Thus, the RFA does not apply. We also note the limited nature of this document, which merely updates the incorporation by reference to reflect the mandatory CPSC standard that takes effect under section 104 of the CPSIA.

The standard for hand-held infant carriers contains information-collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The revisions made no changes to that section of the standard. Thus, the revisions will have no effect on the information-collection requirements related to the standard.

The Commission's regulations provide a categorical exclusion for the Commission's rules from any requirement to prepare an environmental assessment or an environmental impact statement where they “have little or no potential for affecting the human environment.” 16 CFR 1021.5(c)(2). This rule falls within the categorical exclusion, so no environmental assessment or environmental impact statement is required.

Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that where a consumer product safety standard is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a requirement dealing with the same risk of injury unless the state requirement is identical to the federal standard. Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to the CPSC for an exemption from this preemption under certain circumstances. Section 104(b) of the CPSIA deems rules issued under that provision “consumer product safety rules.” Therefore, once a rule issued under section 104 of the CPSIA takes effect, it will preempt in accordance with section 26(a) of the CPSA.

Under the procedure set forth in section 104(b)(4)(B) of the CPSIA, when a voluntary standard organization revises a standard that the Commission adopted as a mandatory standard, the revision becomes the CPSC standard within 180 days of notification to the Commission, unless the Commission determines that the revision does not improve the safety of the product, or the Commission sets a later date in the Federal Register . The Commission has not set a different effective date. Thus, in accordance with this provision, this rule takes effect 180 days after we received notification from ASTM of revision to this standard. As discussed in the preceding section, this is a direct final rule. Unless we receive a significant adverse comment within 30 days, the rule will become effective on August 3, 2020.

The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that, before a rule may take effect, the agency issuing the rule must submit the rule, and certain related information, to each House of Congress and the Comptroller General. 5 U.S.C. 801(a)(1). The submission must indicate whether the rule is a “major rule.” The CRA states that the Office of Information and Regulatory Affairs (OIRA) determines whether a rule qualifies as a “major rule.” Pursuant to the CRA, this rule does not qualify as a “major rule,” as defined in 5 U.S.C. 804(2). To comply with the CRA, the Office of the General Counsel will submit the required information to each House of Congress and the Comptroller General.

For the reasons stated above, the Commission amends 16 CFR chapter II as follows:

I. Background

Two of the four review boards within the Department of Labor were created by voluntary delegations of authority by previous Secretaries of Labor. Specifically, the Administrative Review Board (ARB)—which has authority to hear appeals from the decisions of the Department's Office of Administrative Law Judges (OALJ) about certain immigration, child labor, employment discrimination, federal construction/service contracts, and other issues—and the Board of Alien Labor Certification Appeals (BALCA)—which has authority over appeals from the decisions of the Employment and Training Administration's adjudication of foreign labor certification applications—were created, respectively, by a Secretary's Order and by regulation. Their existence is neither compelled nor governed by statute. Notably, before the ARB was created in 1996, many of the types of cases now subject to its jurisdiction were decided directly by the Secretary. Each board was also entrusted with the power to issue final agency decisions in the name of the Secretary. Previously, the Secretary's Order and regulations establishing the ARB and BALCA provide no mechanism by which the Secretary can review, where necessary, the decisions of the officers who exercise power on his behalf.

To ensure that the Secretary has the ability to properly supervise and direct the actions of the Department, the Department is establishing systems of discretionary secretarial review over the decisions of the ARB and decisions of and appeals before BALCA, which is being accomplished through this rule and the earlier issuance of a Secretary's Order governing the ARB. The Department's authority to effect these reforms derives from 5 U.S.C. 301, which authorizes the heads of agencies to regulate the internal operations of their departments; 5 U.S.C. 305, which provides for continuing review of agency operations; and the Secretary's authority to administer the statutes and programs at issue in ARB and BALCA proceedings. In combination, these statutes establish many of the powers of the Department within the Office of the Secretary, and give the Secretary wide latitude to delegate those powers to his subordinates on the terms he deems appropriate. Thus, the Secretary has the power to delegate his authority to appropriately supervise the adjudicatory process within the Department, and is now exercising that same authority to assert his decision-making prerogatives duly assigned to him by Congress by modifying the terms on which the members of the ARB and BALCA exercise his delegated authority.

The reforms to BALCA (and conforming edits to various Departmental regulations governing the ARB, BALCA, and the OALJ) preserve the existing structures by which the Department processes adjudications while giving the Secretary the option, in his sole discretion, to initiate review directly in a case where the Secretary's involvement is necessary and appropriate. Again, Congress has assigned the administration of various statutes to the Secretary of Labor, meaning that the Secretary is obligated to ensure that those laws are administered, executed, interpreted, and enforced according to law and Executive Branch priorities and policies. Under these reforms, the Secretary will rely on the ARB and BALCA to assist in identifying cases where secretarial review may be warranted. Consistent with the practice of other agencies, the Department does not anticipate that the power of secretarial review will be used often. The Department similarly anticipates that secretarial review—while completely within the Secretary's discretion as the officer assigned to administer the laws in the first place—will typically be reserved for matters of significant importance. With respect to the provisions revised by this rule under which decisions of the ARB become final, the Department notes that such decisions become final irrespective of whether a petition for secretarial review is filed under Secretary's Order 01-2020. Parties are not required by Secretary's Order 01-2020 to file petitions to exhaust their administrative remedies. See Darby v. Cisneros, 509 U.S. 137 (1993). Finally, the Department will ensure that the secretarial review process will be accomplished in a manner that complies with any applicable legal requirements.

Because of significant differences between how the ARB and BALCA operate, the systems of review for each board are designed somewhat differently. Most importantly, whereas with respect to the ARB the Secretary will not exercise review over cases until after a decision has been rendered, the regulations modifying BALCA's authority allow the Secretary to assume jurisdiction over most cases even before a decision has been issued. This is because BALCA processes significantly more cases each year than does the ARB, and, due to the nature of the temporary visa programs and DOL's role in administering these programs, does so much more quickly than does the ARB. As a result, under the BALCA regulations, the Secretary will be able to initiate review of a case even before BALCA has issued a decision.

The Department appreciates the expeditious nature of many types of BALCA proceedings, such as those involving temporary labor certification, and does not anticipate that the new system of secretarial review established over such cases will significantly disrupt or otherwise impede the way such cases are currently processed. As noted above, the Department expects that secretarial review over BALCA decisions will, as with agency head review at other departments, likely not be exercised often. Further, the changes to 29 CFR 18.95 provide that a BALCA decision is the Secretary's final administrative decision unless the Secretary assumes jurisdiction over the case. For example, once the BALCA issues a decision that affirms the Certifying Officer's decision or reverses and remands for further processing, the parties in the case will be able to proceed immediately to the next step of the application process, and will only be delayed in doing so if the Secretary later decides to undertake review. Moreover, the revised 29 CFR 18.95 limits any potential uncertainty that may exist because of the possibility of secretarial review by placing strict time limits on when the Secretary will have the option of assuming jurisdiction over a case.

This final rule revises several sections of the Code of Federal Regulations including 20 CFR parts 641, 655, 656, 658, 667, 683, and 702; 29 CFR parts 2, 7, 8, 10, 13, 18, 24, 29, 38, and 96; 29 CFR parts 417 and 471; 29 CFR parts 501 and 580; 29 CFR parts 1978-1988; and 41 CFR parts 50-203 and 60-30 to harmonize the manner in which the ARB issues decisions on behalf of the Secretary under the Department's regulations with the scope of the final decision-making authority delegated to the ARB by the Secretary in Secretary's Order 01-2020. Specifically, references to final decisions of the ARB have been modified or removed to ensure that no regulation contradicts the terms on which an ARB decision becomes final under the Secretary's Order. Certain provisions governing the timing of petitions for review to the ARB and when the ARB is required to issue decisions have also been amended to eliminate potential ambiguity or confusion over the distinction between when the ARB is required to issue a decision and when such decision becomes the final action of the Department pursuant to the Secretary's Order.

This rule also revises 29 CFR part 18 by modifying the conditions under which a decision of BALCA becomes the final decision of the Department and by creating a process by which the Secretary of Labor can exercise discretionary review over cases pending before or decided by the BALCA. Technical amendments are also made to 20 CFR parts 655 and 656 to harmonize the manner in which BALCA issues decisions on behalf of the Secretary with the new system of discretionary review established in 29 CFR part 18.

The Department of Labor and the Department of Homeland Security (DHS) have determined that it is appropriate to issue a separate rule regarding the Secretary of Labor's review authority over H-2B cases under 29 CFR 18.95 to address the same issues addressed by this rule in the H-2B context. It is the Departments' intent to promulgate this separate rule after the publication of this rule. This determination follows conflicting court decisions concerning DOL's authority to issue legislative rules on its own to carry out its duties in the H-2B program. Although DOL and DHS each have authority to issue rules implementing their respective duties in the H-2B program, including rules providing for secretarial review, the Departments plan to make the amendments to the applicable regulations jointly to ensure that there can be no question about the authority underlying such technical amendments. This approach is consistent with the joint rulemaking governing the Temporary Non-Agricultural Employment of H-2B Aliens in the United States, 80 FR 24042 (Apr. 29, 2015) (codified at 8 CFR part 214, 20 CFR part 655, and 29 CFR part 503).

In order to ensure that all parties appearing before the ARB and BALCA have fair notice of the new systems of discretionary review established in this rulemaking and in Secretary's Order 01-2020, the Secretary will not exercise his review authority over any decision of either Board issued before the passage of 30 calendar days from the date on which this rule becomes effective.

On March 6, 2020, the Department simultaneously published a direct final rule (DFR) and a notice of proposed rulemaking (NPRM) to effect the reforms described above. The Department treated comments received on the companion NPRM as comments also regarding the DFR, and vice versa. We describe the NPRM and DFR together as the “NPRM-DFR.” Some comments raised concerns while others expressed support for the Department's NPRM-DFR. After carefully considering the comments received, the Department determined that none of the comments required refraining to make the revisions set forth in the NPRM-DFR, as explained in more detail below, and has decided to issue this final rule, which, with the exception of one substantive change described below and some technical corrections, 1 is identical to the NPRM-DFR.

By its terms, the DFR became effective on April 20, 2020. However, because the Department received significant adverse comments on the NPRM-DFR, the Department has not exercised, and does not intend to exercise any authority under the provisions contained in the DFR, and the Department has not published in the Federal Register a document confirming the effective date of the DFR and withdrawing the NPRM. Rather, the Department is now issuing this final rule to respond to the comments received and to finalize the NPRM.

The Department received multiple adverse comments to the NPRM-DFR. The commenters expressed concerns that the new systems of discretionary review in the NPRM-DFR and established in Secretary's Order 01-2020 would result in significant delays in the resolution of cases. Further, some commenters argued that secretarial review would result in inconsistencies in how the Department decides cases, and also faulted the NPRM-DFR for not specifying the standards under which the Secretary would exercise review, which some commenters suggested would jeopardize the fairness and due process afforded parties in Department adjudications. Other concerns raised by commenters included a purported lack of data or other justifications for the proposed system of discretionary review and objections to the propriety of the direct final rulemaking process. Finally, some commenters suggested that the rule should include more public reporting requirements to increase transparency with respect to how the Secretary exercises his review authority.

The Department believes that many of the objections raised by the commenters are already addressed by the provisions in the NPRM-DFR, and also notes that some of the concerns are about the contents of Secretary's Order 01-2020, which became effective on February 21, 2020, and was not the subject of this rulemaking. To the extent the commenters' concerns relate to Secretary's Order 01-2020, and not the rule, the Department addresses them here insofar as doing so is helpful in more fully explaining how the new systems of discretionary review work.

As explained earlier in this preamble, the Department does not anticipate that discretionary review will be frequently exercised. The vast run of cases decided by the Department will therefore be minimally affected in the rate at which they are processed. Importantly, the timeline set for when BALCA decisions become final under the new rule is unchanged, except with respect to cases over which the Secretary decides to exercise review.

Some commenters argued that, despite BALCA decisions becoming final upon issuance, employers would still be delayed in moving on to the next step of the visa application process because they would have to wait until the time period for secretarial review elapsed, and that the time periods in which the Secretary is permitted to undertake review are unnecessarily long. Commenters were specifically concerned with the timing available for the Secretary to invoke jurisdiction over a case and the lack of a deadline for the Secretary to make a decision, particularly regarding the H-2A program given the time-sensitive nature of the program. One commenter also suggested that the proposal is inconsistent with Section 218(e) of the INA.

The Department does not agree with these assertions. For one thing, the possibility that the Secretary may undertake review of a BALCA decision that has become final no more impedes an employer's ability to proceed to the next step in the visa application process than does the possibility that BALCA may consider, and possibly grant, a motion for reconsideration. Like the possibility of reconsideration, secretarial review will be uncommon and will not significantly delay action on a final BALCA decision. The time periods specified in this rule in which secretarial review is allowed are included to limit further the already minimal uncertainty that the chance of secretarial review might create for employers by placing a strict time constraint on when secretarial review is even possible. Finally, the Secretary's authority to review BALCA decisions does not conflict with the INA. If an employer requests a de novo hearing, they are entitled to that hearing in accordance with the Department's regulations. It is only after that hearing that the Secretary can exercise their authority to review the ALJ's decision from that hearing.

In response to one commenter's question of whether the Department will refund a filing fee paid to United States Citizenship and Immigration Services (USCIS) in the event the Secretary undertakes review after the fee has been submitted, the Department notes that USCIS's refund policy is outside the Department's control. The Department notes, however, that this final rule reduces the limited risk of costs being incurred without a refund by allowing the Secretary to undertake review of cases pending before the BALCA before a decision is issued. That feature of the rule is formulated in recognition of the expeditious nature of many BALCA cases and ensures that, wherever possible, the Secretary may review a case before a party has filed a petition with USCIS.

As to the ARB, the Department notes that the ARB currently takes on average nineteen months to process a case; the up-to approximately two months' more  2 added by Secretary's Order 01-2020 to allow the Secretary time to determine whether to undertake review is not unreasonable. A modest extension of case processing times to give the Secretary the opportunity to ensure a case was properly decided is not, in the Department's judgment, inconsistent with the fair and timely adjudication of administrative appeals. The Department also believes that additional delay in the issuance of a final decision in the uncommon cases where the Secretary has undertaken review is appropriate and consistent with current practices at the Department.

Contrary to some commenters' concerns that secretarial review will lead to inconsistency and inefficiencies in Department adjudications because of the supposed haphazard manner in which they believe the review power will be exercised, the Department expects that it will in fact increase consistency and efficiency. Decisions of the Secretary under this rule and Secretary's Order 01-2020 are binding on all Department employees, and thus will serve as authoritative pronouncements within the Department on the statutes and regulations within the BALCA's and ARB's jurisdictions. That will serve to improve the consistency and efficiency of Department adjudications.

Commenters similarly suggested that the Department establish with more specificity both the standards the Secretary will use when deciding to exercise his authority and the standards that will govern the Secretary's review of a case. The Department does not believe that further specification of the standards that govern discretionary review is necessary to ensure the proper use of this power. When review is undertaken, the Secretary will adhere to all relevant sources of law, including, where applicable, 5 U.S.C. 557(b), which sets a standard of review for administrative appeals in formal adjudications. Further, providing that, generally, cases will be subject to secretarial review only if they present a matter of exceptional importance strikes the right balance between providing some clarity about when review will be undertaken while not unnecessarily precluding review in cases where secretarial involvement may be warranted under circumstances that are difficult to anticipate.

Several commenters raised concerns that the system of discretionary secretarial review does not adequately protect due process rights or risks undermining the fundamental fairness of DOL adjudications, including by failing to provide a mechanism for the parties to the proceeding to be notified when the Secretary exercises his discretion, the relevant issues under consideration, the lack of timeframe for the Secretary to make a decision, and a concern that the process will only be used to reverse decisions unfavorable to the Department. The Department notes that this final rule contains a number of important fairness safeguards, and does not believe that further protections are necessary. Whenever review of cases pending before or decided by BALCA is undertaken by the Secretary, parties are to be promptly notified. The Secretary is also to receive the Appeal File and any briefs filed to ensure parties have an opportunity to be heard. Further, the Secretary must state his decision in writing, and the parties are to be promptly notified of his decision. Finally, this rule provides that no individual involved in the investigation or prosecution of a case will advise the Secretary on the exercise of review with respect to that case or a case involving a common nucleus of operative fact. 3 This ensures the integrity of the review process by preventing the intermingling of functions within the Department. The Department also notes that the APA's separation of functions provision does not apply to the heads of agencies. 5 U.S.C. 554(d)(C). Finally, to the extent commenters have suggested that the Secretary will in all cases rule for the Department or a preferred party, or only consider undertaking review in cases where the Department lost before the BALCA, the Department regards those concerns as unfounded, and reiterates that the Secretary will decide all cases in accordance with law.

Some commenters' objected that the Department's reasons for establishing discretionary secretarial review do not sufficiently justify the rule, including failing to provide evidence or data that the ARB and BALCA issue obviously wrong decisions on a regular-enough basis to justify the establishment of this procedure.

The Department reiterates that ensuring the Secretary's ability to supervise and direct functions of the Department that are entrusted to his care by Congress is a compelling reason for the rule taken on its own terms, and will promote good governance within the Department. The Department does not believe it is unreasonable for the Secretary to execute the duties he has been assigned by Congress. As for evidence, past experience with the unreviewability of BALCA decisions indicates that it is necessary for the Secretary to have the option of reviewing decisions issued on his behalf lest disagreement on law and policy within the Department lead to protracted uncertainty and intractable problems for regulated communities. See, e.g., Withdrawal of Notice of Intent To Issue a Declaratory Order, 85 FR 14706, 14708 (March 13, 2020) (recounting historical facts). The overall effect of this process will be to establish binding secretarial precedent on certain issues, which will ensure consistency in the Department's review and adjudication of matters, ultimately saving time and providing greater certainty for the regulated community.

Some commenters objected that this rule is being promulgated through improper procedures, and specifically argued that the DFR process is not permitted under the APA. The Department disagrees. The Department emphasizes that, while it does not believe it was required to issue this procedural rule through notice-and-comment procedures, it nevertheless gave the public the opportunity to comment through the NPRM, received public submissions on the NPRM-DFR, and is now issuing this final rule having considered and responded to those submissions.

As to commenters' suggestions regarding transparency and the public reporting of decisions rendered by the Secretary, the Department notes that Secretary's Order 01-2020 already requires the publication of such decisions issued following the review of an ARB decision. Because the Department agrees with commenters that publishing decisions is an appropriate and effective way for the public to be informed about how the discretionary review power is exercised, the Department is adding an express publication requirement to 29 CFR 18.95(c)(2)(iii) for secretarial decisions issued after the review of cases decided by or pending before the BALCA. Commenters' other suggestions to promote transparency, including requiring BALCA to notify an employer of recommendations to the Secretary or for the Secretary to provide public explanations of his reasons for declining review in cases and providing the public with additional information about how the Secretary has handled specific referrals under Secretary's Order 01-2020, would, in Department's judgment, introduce more inefficiencies into the review processes than are warranted by the marginal benefits such transparency measures would generate.

Finally, the Department declines to grant some commenters' request for an extension of the comment period. The NPRM-DFR was not long or complex relative to other proposed rules issued by the Department. Further, the NPRM-DFR was made public on the Department's website on February 21, meaning interested parties have had notice of and have had the opportunity to examine it and to prepare comments for longer than the 30 days provided for comment. Some commenters argued that the disruption caused by the coronavirus pandemic, including the closure of law libraries or other institutions that commenters may use as a resource to submit comments, justifies an extension. The Department notes that while the pandemic has caused general disruption to the lives of all Americans, comments to proposed rules can be submitted electronically and do not rely on physical means of delivery or preparation that may be hindered by the pandemic, and that the research and work needed to prepare comments can also generally be carried on through electronic means.

To the extent that DOL received comments unrelated to the proposal to establish a system of discretionary secretarial review, such comments are outside the scope of this rulemaking. DOL did not consider any other aspects of its administrative adjudicative processes, either explicitly or implicitly, as part of this rulemaking. As such, DOL declines to address any comments unrelated to this very narrow rulemaking.

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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

This rule has been drafted and reviewed in accordance with Executive Order 12866. The Department of Labor, in coordination with the Office of Management and Budget (OMB), determined that this rule is not a significant regulatory action under section 3(f) of Executive Order 12866 because the rule will not have an annual effect on the economy of $100 million or more; will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; and will not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof. Furthermore, the rule does not raise a novel legal or policy issue arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Accordingly, OMB has waived review. 4

Because no notice of proposed rulemaking was required for this rule under section 553 of the Administrative Procedure Act, the regulatory flexibility analysis requirements of the Regulatory Flexibility Act, 5 U.S.C. 603, 604, do not apply to this rule. See 5 U.S.C. 601(2).

The Department has determined that this rule is not subject to the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., as this rulemaking does not involve any collections of information. See 5 CFR 1320.3(c).

The Department has reviewed this rule in accordance with the requirements of Executive Order 13132 and the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq., and has found no potential or 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. As there is no Federal mandate contained herein that could result in increased expenditures by State, local, and tribal governments, or by the private sector, the Department has not prepared a budgetary impact statement.

The Department has reviewed this rule in accordance with Executive Order 13175 and has determined that it does not have “tribal implications.” The rule does not “have substantial direct effects 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.”

For the reasons set forth in the preamble, the Department of Labor amends 20 CFR chapters V and VI; 29 CFR subtitle A and chapters IV, V, and XVII, and 41 CFR parts 50-203 and 60-30 as follows:

In FR Doc. 2019-28446 appearing on page 2022 in the Federal Register of Tuesday, January 14, 2020, the following correction is made: On page 2023, in the third column, under II. Background, A. General Discussion, footnote 1 is corrected to read:

“MSHA considers detonators fired by a shock tube and incorporating a pre-programmed microchip delay rather than a pyrotechnic one to be non-electric detonators, not electronic detonators.”

This is a summary of the Commission's Order on Reconsideration ( Order ) in EB Docket No. 04-296, PS Docket No. 15-94, FCC 19-57, adopted on June 25, 2019, and released on June 27, 2019. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov.

1. In the Order, the Commission partially grants a petition for partial reconsideration of the EAS First Report and Order ( First Report and Order ) in EB Docket No. 04-296, 70 FR 71023, 71072 (Nov. 25, 2005), filed by XM (the “XM Petition”), which was subsequently modified by supplemental filings made by Sirius XM, and adopts changes to its Part 11 EAS rules governing test requirements to harmonize the EAS testing requirements that apply to SDARS providers with the testing requirements applied to Direct Broadcast Satellite (DBS) providers.

2. The EAS is a national public warning system through which alerts concerning impending emergencies are distributed to the public by EAS Participants. The primary purpose of the EAS is to provide the President with “the capability to provide immediate communications and information to the general public at the national, state and local levels during periods of national emergency.” The EAS also is used by state and local governments, as well as the National Weather Service (NWS), to distribute alerts.

3. The EAS uses a broadcast-based, hierarchical alert message distribution architecture to deliver alerts to the public. Using this system, the originator of an alert message at the local, state or national level encodes (or arranges to have encoded) a message in the EAS Protocol, a series of numeric codes that provides basic information about the alert. When the transmission of an alert encoded in the EAS Protocol is received by the EAS equipment of EAS Participants assigned to monitor the transmission of the originating broadcaster, the encoded EAS header code tones activate the EAS equipment, which then decodes the numeric codes in the original alert message, re-encodes that information, and broadcasts anew the EAS header code tones, attention signal and audio message to the public. This process is repeated as the alert is rebroadcast to other downstream monitoring EAS Participants until all affected EAS Participants have received the alert and delivered it to the public. This process of EAS alert distribution among EAS Participants is often referred as the “daisy chain” distribution architecture.

4. To ensure that the EAS system and EAS Participants' EAS equipment will function properly, and that alerts will be accurately and consistently distributed, delivered to the public, the EAS rules contain national, monthly and weekly testing requirements that apply to different services, including broadcast, cable, DBS and SDARS. The EAS weekly test generally involves EAS Participant transmission of EAS header and End of Message (EOM) codes generated internally within their EAS equipment. For the EAS monthly test, a test alert message, composed of EAS header codes, an attention signal, test audio script and the EOM code, is transmitted from key sources identified in the State EAS Plan, which in turn are monitored by EAS Participants, who retransmit the test alert as they would an actual EAS alert. EAS Participants are required to determine the cause of any failure to receive the monthly test or weekly activation, and make appropriate entries in their station logs or facility records.

5. In the EAS First Report and Order, the Commission extended EAS obligations to various digital services, including SDARS. SDARS, commonly known as “satellite radio,” is “[a] radiocommunication service in which audio programming is digitally transmitted by one or more space stations directly to fixed, mobile, and/or portable stations, and which may involve complementary repeating terrestrial transmitters, telemetry, tracking and control facilities.” More colloquially, SDARS is primarily a satellite-delivered service in which digital radio programming is sent directly from satellites to subscriber receivers either at a fixed location or in motion.

6. With respect to testing requirements, although the Commission acknowledged that SDARS did not (and could not) supply local programming and EAS alerts, it nonetheless imposed the same testing regime as that applied to broadcasters, requiring “SDARS licensees to test their ability to receive and distribute EAS messages in the same manner required of other EAS participants in section 11.61 of our rules and to keep records of all tests.” Accordingly, SDARS licensees were required to adhere to the general monthly test requirements that apply to most other EAS Participant services. With respect to weekly test requirements, the Commission required that “SDARS providers must conduct tests of the EAS Header and EOM codes at least once a week at random days and times on all channels.” By contrast, the Commission adopted less burdensome testing requirements for DBS providers on grounds that performing such tests on all channels simultaneously on an inherently nationwide platform could pose technical challenges. More specifically, whereas SDARS was required to conduct weekly and monthly tests on all channels, the Commission required that DBS providers need only log receipt of other EAS Participants' weekly tests, and that monthly tests “be performed on 10% of all channels monthly (excluding local-into-local channels for which the monthly transmission tests are passed through by the DBS provider), with channels tested varying from month to month, so that over the course of a given year, 100% of all channels are tested.”

7. As originally filed, the XM Petition requested that the Commission modify the SDARS EAS test requirements to more accurately reflect the national nature of the service. The Petition first requested that the EAS testing rules for SDARS be revised to require (i) a yearly test that would be transmitted on every channel simultaneously, and (ii) weekly and monthly tests that would be distributed on XM's Instant Traffic, Weather and Alert channels. XM argued that requiring weekly and monthly tests on all of its channels “will mislead subscribers to believe that satellite radio operators transmit state and local EAS alerts on all channels, when in fact state and local EAS alerts will only be transmitted on those XM Instant Traffic, Weather & Alert channels on which XM has informed subscribers that it will offer state and local EAS messages.”

8. On July 31, 2014, Sirius XM submitted an ex parte letter in which it indicated that “[t]he passage of time and changed circumstances since [XM] initially filed the [XM Petition] has also simplified the relief that is needed.” Specifically, Sirius XM requested that the Commission modify the testing rules for SDARS to make them comparable to those applied to DBS providers. In justifying this request, Sirius XM contended that the requirement to carry weekly and monthly EAS tests on all Sirius XM channels “has imposed an excessive, disproportionate, and unnecessary burden on SiriusXM and its subscribers.” To that end, Sirius XM observed that “[u]nlike other multichannel services such as cable television, the satellite radio service rarely has natural breaks in programming for inserting a test, and never has uniform breaks that apply to all of our approximately 150 channels.” Sirius XM also contended that weekly testing of its system is “unnecessary and duplicative,” arguing, among other things, that it is “largely superseded by FEMA's own testing of [Sirius XM's EAS encoder/decoder] which is central to our EAS capabilities,” and achievable through logging requirements, “as [with] DBS.”

9. On June 5, 2017, Sirius XM submitted a Motion of Sirius XM Radio Inc. for Leave to Supplement Petition for Reconsideration and Request for Limited Waiver (the “Sirius XM Motion”) in which it requested leave to supplement the XM Petition with the modified testing relief requested in its July 2014 ex parte letter. Sirius XM subsequently submitted a Further Supplement of Sirius XM Radio Inc. to Petition for Reconsideration and Request for Limited Waiver (the “Further Supplement”) to refine the relief requested in the Sirius XM Motion.

10. On November 7, 2018, the Public Safety and Homeland Security Bureau (Bureau) released a Public Notice seeking comment on Sirius XM's July 2014 ex parte letter, Sirius XM Motion, Further Supplement and a November 2018 Letter submitted by Sirius XM as a transmittal letter to incorporate into the record of this proceeding FEMA correspondence identifying its official position regarding which Sirius XM channels it will permit to be monitored for federal EAS alerts. One comment was filed, and one reply comment was filed (by Sirius XM).

11. As a threshold matter, the Commission grants Sirius XM's motion for leave to modify the XM Petition as described in the Sirius XM Motion, Further Supplement and November 2018 Letter. The Commission observes that comment was sought on these filings and that no party raised objections to the relief requested. The Commission further observes that changed circumstances arose during the pendency of the XM Petition's review that fundamentally altered the nature of the initial relief requested in the XM Petition. In light of these developments, the Commission concludes that it is in the public interest to grant the Sirius XM Motion and consider the XM Petition as modified by the above-identified filings to the extent noted herein.

12. As described below, the Commission agrees with Sirius XM that modifying the EAS testing requirements for SDARS to make them comparable to those applied to DBS providers is consistent with the purpose of the EAS testing rules and in the public interest, and amends section 11.61 of the part 11 rules accordingly. Specifically, the Commission will require SDARS providers to log receipt of the weekly test, and to transmit the monthly test on 10% of all of its channels, with channels tested varying from month to month, so that over the course of a given year, 100% of all of its channels are tested.

13. The Commission finds that harmonizing SDARS testing requirements with DBS testing requirements is appropriate because these services are technologically similar. SDARS is similar to DBS in that they are both satellite-delivered services in which digital programming is sent directly from satellites to subscriber receivers. By virtue of similar network architectures, both services are inherently nationwide services. Further, SDARS and DBS are regulated in a similar manner. For example, both SDARS and DBS providers are subject to similar public interest and other obligations under Part 25 of the Commission's rules.

14. Notwithstanding this similarity, in the EAS First Report and Order, the Commission applied dissimilar testing requirements: It imposed on SDARS providers the same general monthly and weekly testing requirements that it applied to terrestrial EAS Participant services, while applying modified testing requirements to DBS. The Commission concluded that requiring DBS providers to conduct weekly and monthly tests on all channels simultaneously on an inherently nationwide platform could pose technical challenges. Accordingly, it required that DBS providers need only log receipt of other EAS Participants' weekly tests, and perform monthly tests on 10% of all channels such that over the course of a year, all channels are tested.

15. Meanwhile, the Commission required SDARS to conduct weekly and monthly tests on all channels. The Commission agrees with Sirius XM that these testing obligations are more onerous than those imposed on DBS (and other services subject to EAS requirements). Both services provide programming via satellites over multiple channels, which requires interrupting whatever programming is on these multiple channels to transmit the test. However, whereas DBS is not required to transmit weekly tests at all, and can transmit the monthly test over 10% of its channels per month, SDARS is required to transmit weekly tests on all of its channels every week, and monthly tests on all of its channels once per month. In SDARS's case, there are no uniform breaks across all channels, such as a commercial break, that might unobtrusively accommodate a test. Moreover, because SDARS is an audio service, the EAS header code tones, scripted audio and attention signal (in the case of a monthly test) are the only audio SDARS listeners will hear during the test. The Commission concluded in the EAS First Report and Order that the testing requirements adopted for DBS were “no more onerous to DBS providers than those required of any other EAS participant.” On their face, the disparity in the testing requirements imposed upon DBS as compared to SDARS—two similarly situated services—confirm that the same cannot be said with respect to SDARS.

16. Nor is the purpose of EAS testing undermined by harmonizing the SDARS testing requirements with the DBS testing requirements. In the EAS First Report and Order, the Commission stated that the “EAS testing regime is designed to test not only the EAS participant's ability to receive the message from the source it monitors, but also the ability of the participant to disseminate an alert to its entire audience.” This purpose will continue to be fully realized by applying the weekly and monthly DBS testing requirements to SDARS providers, because the weekly logging requirement should identify alerts not received, and the monthly requirements will ensure that, on a rolling basis, over a one year period, all Sirius XM's channels are able to disseminate the alert to its listeners. Moreover, as Sirius XM points out, because Sirius XM serves as a PEP source for national EAS alerts, FEMA already tests Sirius XM's EAS equipment “on a regular basis through remote polling . . . without even notifying SiriusXM of the testing—unless a problem is discovered—and without any disruption to [Sirius XM's] customers.”

17. 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 Sirius XM Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

18. This document contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. These modified requirements were submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies were invited to comment on the new or modified information collection requirements contained in this proceeding. OMB approved the modified information collection requirements on December 26, 2019, and the Commission published a notice in the Federal Register announcing such OMB approval on February 6, 2020, published at 85 FR 6951, February 6, 2020. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (NPRM), adopted in August 2004, which sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

19. In this present document, the Commission has assessed the effects of the information collection associated with the modified reporting requirement set forth in the Order, and finds that because this information collection involves a decrease in testing burdens that should more than offset the increase in logging burdens, the net burden of information collection should be reduced and therefore should not pose a substantial burden for businesses with fewer than 25 employees.

20. The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs that this rule is “non-major” under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of this Order on Reconsideration to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

21. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (NPRM), in EB Docket No. 04-296, 69 FR 52843 (Aug. 30, 2004). The Commission sought written public comment on the proposals in the NPRM, including comments on the IRFA. No comments were filed addressing the IRFA. The Commission included a Final Regulatory Flexibility Analysis (FRFA) in Appendix D of the EAS First Report and Order in this proceeding. This Supplemental Final Regulatory Flexibility Analysis (Supplemental FRFA) supplements the FRFA to reflect the actions taken in this Order and conforms to the RFA.

22. In the EAS First Report and Order, the Commission extended EAS obligations to digital television and radio, digital cable, and satellite television and radio services. Among other things, the Commission extended EAS obligations to SDARS providers. A petition for partial reconsideration of the EAS First Report and Order was filed and subsequently modified by Sirius XM, the sole provider of SDARS in the United States.

23. The Commission grants on reconsideration, to the extent described herein, Sirius XM's petition for partial reconsideration of the EAS First Report and Order by revising the EAS testing requirements for SDARS providers to make them symmetrical to applied to DBS providers.

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

25. 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.

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

27. 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.

28. As noted above, a FRFA was incorporated into the EAS First Report and Order. In that analysis, the Commission described in detail the small entities that might be significantly affected by the rules adopted in the EAS First Report and Order. This Supplemental FRFA reflects updated information, where applicable, for the descriptions and estimates of the number of small entities in the previous FRFA in this proceeding.

29. Small Businesses, Small Organizations, Small Governmental Jurisdictions. The Commission's actions, over time, may affect small entities that are not easily categorized at present. The Commission therefore describes here, at the outset, three broad groups of small entities 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.

30. 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).

31. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2012 Census of Governments indicate that there were 90,056 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 37, 132 General purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,184 Special purpose governments (independent school districts and special districts) with populations of less than 50,000. The 2012 U.S. Census Bureau data for most types of governments in the local government category show that the majority of these governments have populations of less than 50,000. Based on this data the Commission estimates that at least 49,316 local government jurisdictions fall in the category of “small governmental jurisdictions.”

32. Television Broadcasting. This Economic Census category “comprises establishments primarily engaged in broadcasting images together with sound.” These establishments operate television broadcast studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has created the following small business size standard for such businesses: Those having $38.5 million or less in annual receipts. The 2012 Economic Census reports that 751 firms in this category operated in that year. Of that number, 656 had annual receipts of $25,000,000 or less, 25 had annual receipts between $25,000,000 and $49,999,999 and 70 had annual receipts of $50,000,000 or more. Based on this data the Commission therefore estimates that the majority of commercial television broadcasters are small entities under the applicable SBA size standard.

33. The Commission has estimated the number of licensed commercial television stations to be 1,377. Of this total, 1,258 stations (or about 91%) had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on November 16, 2017, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission has estimated the number of licensed noncommercial educational television stations to be 384. Notwithstanding, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities. There are also 2,300 low power television stations, including Class A stations (LPTV) and 3,681 TV translator stations. Given the nature of these services, the Commission will presume that all of these entities qualify as small entities under the above SBA small business size standard.

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

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

36. According to Commission staff review of the BIA/Kelsey, LLC's Media Access Pro Radio Database as of January 2018, about 11,261 (or about 99.9%) of 11,383 commercial radio stations had revenues of $38.5 million or less and thus qualify as small entities under the SBA definition. The Commission has estimated the number of licensed commercial AM radio stations to be 4,633 stations and the number of commercial FM radio stations to be 6,738, for a total number of 11,371. The Commission notes that it has also estimated the number of licensed noncommercial (NCE) FM radio stations to be 4,128. Nevertheless, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.

37. The Commission also notes that in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. The Commission's estimate therefore likely overstates the number of small entities that might be affected by its action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, to be determined a “small business,” an entity may not be dominant in its field of operation. The Commission further notes, that it is difficult at times to assess these criteria in the context of media entities, and the estimate of small businesses to which these rules may apply does not exclude any radio station from the definition of a small business on these basis, thus the Commission's estimate of small businesses may therefore be over-inclusive. Also, as noted above, an additional element of the definition of “small business” is that the entity must be independently owned and operated. The Commission notes that it is difficult at times to assess these criteria in the context of media entities and the estimates of small businesses to which they apply may be over-inclusive to this extent.

38. 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 nine 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, the Commission estimates that most cable systems are small entities.

39. 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 one 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, the Commission finds that all but nine incumbent cable operators are small entities under this size standard. The Commission notes that it neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million. Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, the Commission is 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.

40. 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)).

41. 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, the Commission estimates 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 86 incumbent BRS licensees that are considered small entities (18 incumbent BRS licensees do not meet the small business size standard). After adding the number of small business auction licensees to the number of incumbent licensees not already counted, there are currently approximately 133 BRS licensees that are defined as small businesses under either the SBA or the Commission's rules.

42. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas. The Commission offered three levels of bidding credits: (i) 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% discount on its winning bid; (ii) 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% discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35% 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 4 licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.

43. EBS —Educational Broadband Service has been included within the broad economic census category and SBA size standard for Wired Telecommunications Carriers since 2007. 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 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. In addition to Census data, the Commission's Universal Licensing System indicates that as of October 2014, there are 2,206 active EBS licenses. The Commission estimates that of these 2,206 licenses, the majority are held by non-profit educational institutions and school districts, which are by statute defined as small businesses.

44. Wireless Carriers and Service Providers. Neither the SBA nor the Commission has developed a size standard specifically applicable to Wireless Carriers and Service Providers. The closest applicable SBA category and size standard is for Wireless Telecommunications Carriers (except Satellite), which is an entity employing no more than 1,500 persons. 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 employment of 999 or fewer employees and 12 had employment of 1000 employees or more. Thus, under this category and the associated size standard, the Commission estimates that the majority of Wireless Carriers and Service Providers are small entities.

45. According to internally developed Commission data for all classes of Wireless Service Providers, there are 970 carriers that reported they were engaged in the provision of wireless services. Of this total, an estimated 815 have 1,500 or fewer employees, and 155 have more than 1,500 employees. Thus, using available data, the Commission estimates that the majority of Wireless Carriers and Service Providers can be considered small.

46. 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 small business size standards, 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% 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.

47. 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.

48. Incumbent Local Exchange Carriers (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. U.S. Census Bureau data for 2012 indicate that 3,117 firms operated the entire 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 the Commission's actions. According to Commission data, one thousand three hundred and seven (1,307) Incumbent Local Exchange Carriers 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.

49. 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.

50. 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 there were a total of 333 firms that operated for the entire year. Of this total, 299 firms had annual receipts of less than $25 million. Consequently, the Commission estimates that the majority of satellite telecommunications providers are small entities.

51. All Other Telecommunications. The “All Other Telecommunications” category is comprised of establishments 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 annual receipts of $32.5 million or less. For this category, U.S. Census Bureau data for 2012 shows that there were 1,442 firms that operated for the entire year. Of those firms, a total of 1,400 had annual receipts less than $25 million and 42 firms had annual receipts of $25 million to $49,999,999. Thus, the Commission estimates that the majority of “All Other Telecommunications” firms potentially affected by the Commission's action can be considered small.

52. The reporting, recordkeeping, and other compliance requirements resulting from the EAS First Report and Order as described in the previous FRFA in this proceeding are hereby incorporated by reference. The actions the Commission takes in the Order modify the SDARS testing requirements to make them symmetrical to the DBS testing requirements, and do not otherwise amend or revise the requirements adopted in the EAS First Report and Order. More specifically, SDARS providers will be required to log receipt of the weekly test (which represents a new reporting requirement for SDARS providers), and to transmit the monthly test on 10% of all of its channels, with channels tested varying from month to month, so that over the course of a given year, 100% of all of their channels are tested.

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

54. In granting partial reconsideration of the EAS First Report and Order, the Commission opted to modify the current SDARS testing requirements and make them symmetrical to the DBS testing requirements based on its finding that SDARS and DBS services are similarly situated. Notwithstanding their similarity and the similar challenges the two services faced in conducting weekly and monthly tests on all channels simultaneously, in the EAS First Report and Order, the Commission applied the same general monthly and weekly testing requirements to SDARS providers that it applied to terrestrial EAS Participant services, while applying modified testing requirements to DBS providers. The Commission's action to harmonize the SDARS testing requirements with the DBS testing requirements on reconsideration should significantly reduce the economic impact for SDARS providers associated with compliance with the general monthly and weekly testing requirements adopted in the EAS First Report and Order. The modified weekly test requirement for SDARS of substituting logging of receipt of a weekly test for conducting the weekly test, represents a reduced burden, as EAS equipment automatically records when weekly tests are received. Further, not having to transmit the EAS header codes and EOM on all channels randomly once per week relieves the SDARS provider from having to coordinate and administer such testing.

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

56. 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).

57. Accordingly, it is ordered that pursuant to sections 1, 2, 4(i), 4(o), 301, 303(r), 303(v), 307, 309, 335, 403, 405, and 706 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i) and (o), 301, 303(r), 303(v), 307, 309, 335, 403, 405, and 606, and section 1.429 of the Commission's rules, 47 CFR 1.429, the Petition for Partial Reconsideration and Clarification of Sirius XM Radio Inc., as modified by the Motion of Sirius XM Radio Inc. for Leave to Supplement Petition for Reconsideration and Request for Limited Waiver are granted to the extent set forth herein;

58. It is further ordered that pursuant to section 1.429(d) of the Commission's rules, 47 CFR 1.429(d), Sirius XM Radio Inc.'s request for leave to supplement its pending petition for reconsideration set forth in the Motion of Sirius XM Radio Inc. for Leave to Supplement Petition for Reconsideration and Request for Limited Waiver is granted to the extent set forth herein;

59. It is further ordered that pursuant to section 1.429(d) of the Commission's rules, 47 CFR 1.429(d), the Further Supplement of Sirius XM Radio Inc. to Petition for Reconsideration and Request for Limited Waiver is dismissed to the extent set forth herein;

60. It is further ordered that Part 11 of the Commission's rules, 47 CFR part 11, is amended as set forth herein, and such rule amendments shall be effective thirty (30) days after publication of the rule amendments in the Federal Register , except to the extent they contain information collections subject to PRA review. Rule amendments that contain information collections subject to PRA review shall become effective upon the effective date announced when the Commission publishes a notice in the Federal Register announcing such OMB approval and the effective date.

61. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, 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 11 as follows: