In proposed rule FR Doc. 2021-14947, beginning on page 37251 in the issue of July 15, 2021, make the following correction: On page 37251, in the first column, the Regulation Identifier Number is corrected to read “RIN 0583-AD76”.

Under the Federal Food, Drug, and Cosmetic Act (FFDCA), FDA is responsible for ensuring that pet food is safe for animals, produced under sanitary conditions, contains no harmful substances, and is truthfully labeled. FDA has had authority to regulate pet food since the FFDCA was passed in 1938. FDA does not charge pet food producers a fee for any FDA activities related to pet food. Individual States also regulate and inspect pet food.

Since 1958, under the Agricultural Marketing Act at 7 U.S.C. 1622(h), USDA also has provided for the certification of pet food as having been produced under sanitary conditions and meeting compositional and labelling requirements. 1 Under the regulations at 9 CFR part 355, participating facilities pay for this certification. The regulations governing FSIS certification services for pet food have not been substantively amended since the 1960's; therefore, the requirements are outdated ( e.g., requirements regarding pet food ingredients and the submission of firm blueprints). Additionally, the regulations allow for certification only of certain categories of pet food ( i.e., canned or semi-moist maintenance food, canned or fresh frozen certified supplemental animal foods, and canned certified variety meats). Many types of pet foods developed in the last few decades are thus not eligible for FSIS certification ( e.g., pet jerky, pet treats, pet rawhides, raw pet food, freeze-dried pet food, and prescription pet food). Likely for these reasons, as of June 2020, no firms were participating in the FSIS certified pet food program.

FSIS is proposing to remove 9 CFR part 355 from the regulations because the certified pet food regulations are outdated, no companies use the voluntary service, and the regulations have led to industry and consumer confusion. FSIS and FDA agree that stakeholders will benefit from a single set of Federal pet food safety regulations under FDA jurisdiction.

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

The proposed rule ( i.e., removing 9 CFR part 355) would clarify that FDA has sole Federal jurisdiction over pet food inspection, benefiting industry and consumers by reducing confusion. As described above, the certified pet food regulations are outdated and unnecessary. As of June 2020, no firms were using FSIS' certified pet food program. As such, the proposed rule is not expected to increase industry or Agency costs or have a negative public health impact.

The FSIS Administrator has made a preliminary determination that this proposed rule would not have a significant economic impact on a substantial number of small entities, as defined by the Regulatory Flexibility Act (5 U.S.C. 601). The proposed rule is not expected to increase costs to the industry.

There are no new paperwork or recordkeeping requirements associated with this proposed rule under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

FSIS and the U.S. Department of Agriculture (USDA) are committed to achieving the purposes of the E-Government Act (44 U.S.C. 3601, et seq. ) by, among other things, promoting the use of the internet and other information technologies and providing increased opportunities for citizen access to Government information and services, and for other purposes.

Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this Federal Register publication and officially notify the World Trade Organization's Committee on Sanitary and Phytosanitary Measures (WTO/SPS Committee) in Geneva, Switzerland, of this proposal on-line through the FSIS web page located at: https://www.fsis.usda.gov/federal-register.

FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to our constituents and stakeholders. Constituent Updates are available on the FSIS web page. Through the web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an email subscription service which provides automatic and customized access to selected food safety news and information. This service is available at: https://www.fsis.usda.gov/subscribe. Options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves and have the option to password protect their accounts.

In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Persons with disabilities who require alternative means of communication for program information ( e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by: (1) Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410; (2) fax: (202) 690-7442; or (3) email: program.intake@usda.gov.

USDA is an equal opportunity provider, employer, and lender.

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0570; Project Identifier 2019-SW-091-AD” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Jacob Fitch, Aerospace Engineer, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-4130; email jacob.fitch@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0252, dated October 10, 2019 (EASA AD 2019-0252), to correct an unsafe condition for Leonardo S.p.A. (formerly Finmeccanica S.p.A and AgustaWestland S.p.A) Model AW169 helicopters, all serial numbers. Although EASA AD 2019-0252 applies to all Model AW169 helicopters, this proposed AD would apply to helicopters with an affected part installed instead.

This proposed AD was prompted by a report of a broken adjustable device that is part of the pilot and co-pilot yaw pedal assemblies. The results of the investigations determined that a modification of the pilot and co-pilot yaw pedal assemblies is required to prevent this kind of failure. The modification includes installing additional end stroke stops on the yaw pedal assemblies by replacing the existing bolts with bolts having a longer grip to house a wider washer that acts as an additional stop in case of a yaw pedal adjuster failure. The FAA is proposing this AD to address failure of a yaw pedal adjuster, which could result in reduced yaw control of the helicopter. See EASA AD 2019-0252 for additional background information.

EASA AD 2019-0252 requires modification (rework) of the affected pilot and co-pilot assemblies and re-identification of each affected part after it has been modified. EASA AD 2019-0252 also provides an option to replace an affected part with a non-affected part instead of doing the modification.

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 helicopter has been approved by EASA and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is proposing this AD after evaluating all known relevant information and determining that the unsafe condition described previously is likely to exist or develop on other helicopters of the same type design.

This proposed AD would require accomplishing the actions specified in EASA AD 2019-0252, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use certain civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, EASA AD 2019-0252 will be incorporated by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2019-0252 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2019-0252 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 EASA AD 2019-0252. Service information specified in EASA AD 2019-0252 that is required for compliance with it will be available at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0570 after the FAA final rule is published.

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

The FAA estimates that this AD, if adopted as proposed, would affect 7 helicopters of U.S. Registry. The FAA estimates the following costs to comply with this proposed AD.

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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 proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 this proposed regulation:

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

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

(3) Would 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 proposes to amend 14 CFR part 39 as follows:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0568; Project Identifier MCAI-2021-00446-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend the proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this proposed AD.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Vladimir Ulyanov, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax: 206-231-3229; email vladimir.ulyanov@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0103, dated April 13, 2021 (EASA AD 2021-0103) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all Airbus SAS Model A330-200, -200 Freighter, -300 and -900 series airplanes; Model A340-200 and -300 series airplanes; and Model A340-541, -542, -642, and -643 airplanes. Model A340-542 and -643 airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this AD therefore does not include those airplanes in the applicability.

This proposed AD was prompted by a report that during the frame of flight test clearance process, a detailed analysis of ADR failure scenarios led to the identification that compliance requirements for loads and handling qualities throughout the flight envelope could be impaired in case of dispatch with one ADR inoperative (MMEL item 34-10-01) during the maximum interval allowed by the current MMEL. The FAA is proposing this AD to address the possibility of in-flight loss of a second ADR combined with erroneous low speed data provided by the remaining functional ADR, which could result in loss of control of the airplane. See the MCAI for additional background information.

EASA AD 2021-0103 describes procedures for revising the air data/inertial reference system for MMEL item 34-10-01. 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 proposing this AD because the FAA evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in EASA AD 2021-0103 described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.

EASA AD 2021-0103 requires operators to “inform all flight crews” of revisions to the MMEL, and thereafter to “operate the aeroplane accordingly.” However, this proposed AD would not specifically require those actions as they are already required by FAA regulations.

FAA regulations (14 CFR 121.628(a)(2)) require operators to provide pilots with access to all of the information contained in the operator's MEL.

Furthermore, 14 CFR 121.628(a)(5) requires airplanes to be operated under all applicable conditions and limitations contained in the operator's MEL. Therefore, including a requirement in this AD to operate the airplane according to the revised MEL would be redundant and unnecessary. Further, compliance with such a requirement in an AD would be impracticable to demonstrate or track on an ongoing basis; therefore, a requirement to operate the airplane in such a manner would be unenforceable.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use certain civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, EASA AD 2021-0103 will be incorporated by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2021-0103 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2021-0103 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 EASA AD 2021-0103. Service information specified in EASA AD 2021-0103 that is required for compliance with it will be available at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0568 after the FAA final rule is published.

The FAA estimates that this proposed AD affects 130 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

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

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

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 this proposed regulation:

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

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

(3) Would 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 proposes to amend 14 CFR part 39 as follows:

The FAA invites you to send any written relevant data, views, or arguments about this IRFA. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0032; Project Identifier AD-2020-01314-P” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend the proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Michael Schwetz, Aviation Safety Engineer, Boston ACO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2020-12-07, Amendment 39-21142 (85 FR 36145, June 15, 2020) (AD 2020-12-07) for certain Hamilton Sundstrand 54H model propellers. AD 2020-12-07 was prompted by a report of the separation of a 54H60 model propeller blade installed on a United States Marine Corps Reserve (USMCR) KC-130T airplane during a flight in July 2017. The USMCR investigation of this event revealed the Hamilton Sundstrand 54H60 model propeller blade separated due to corrosion pitting and a resultant intergranular radial crack that was not corrected at the last propeller overhaul. From this intergranular crack, a fatigue crack initiated and grew under service loading until the Hamilton Sundstrand 54H60 model propeller blade could no longer sustain the applied loads and ultimately the blade separated. The separation of the blade resulted in the loss of the airplane and 17 fatalities. The investigation further revealed that 54H60 model propeller blades manufactured before 1971 are susceptible to cracks of the propeller blade in the area of the internal taper bore. The applicability of AD 2020-12-07 was therefore limited to those Hamilton Sundstrand 54H60 model propellers blades with a blade serial number (S/N) below 813320, which are those propeller blades manufactured before 1971. AD 2020-12-07 required initial and repetitive eddy current inspections (ECIs) of the affected propeller blades and replacement of any propeller blade that fails inspection. The agency issued AD 2020-12-07 to detect cracking in the propeller blade taper bore.

Since the FAA issued AD 2020-12-07, the manufacturer determined that all propeller blades installed on Hamilton Sundstrand 54H model propellers with a 54H60 model propeller hub are susceptible to intergranular corrosion cracking in the blade taper bore. As a result, the manufacturer published Hamilton Sundstrand Alert Service Bulletin (ASB) 54H60-61-A154, Revision 1, dated May 29, 2020, to expand the effectivity of the ASB to include propeller blades with a blade S/N below 813320, all propeller blades if the propeller contains a propeller blade with a blade S/N below 813320, and all propeller blades that have not been overhauled within ten years.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.

To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the Act. Based on the comments received following publication of the NPRM, the FAA has completed an IRFA and requests comments from affected small entities. The purpose of this analysis is to identify the number of small entities affected, assess the economic impact of the proposed regulation on them, and consider less burdensome alternatives and still meet the agency's statutory objectives.

The Regulatory Flexibility Act (RFA) of 1980, Public Law 96-354, 94 Stat. 1164 (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857, Mar. 29, 1996) and the Small Business Jobs Act of 2010 (Pub. L. 111-240, 124 Stat. 2504, Sept. 27, 2010), requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and small organizations that are independently owned and operated and are not dominant in their fields, and small governmental jurisdictions with populations of less than fifty thousand (50,000).

The FAA is publishing this Initial Regulatory Flexibility Analysis (IRFA) to aid the public in commenting on the potential impacts to small entities from this proposal. The FAA invites interested parties to submit data and information regarding the potential economic impact that would result from the proposal. The FAA will consider comments when making a determination or when completing a Final Regulatory Flexibility Assessment.

Under Sections 603(b) and (c) of the RFA, the initial regulatory flexibility analysis for a proposed rule must: Contain the following:

(1) A description of the reasons why the action by the agency is being considered;

(2) A succinct statement of the objectives of, and legal basis for, the proposed rule;

(3) A description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply;

(4) A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record;

(5) An identification, to the extent practicable, of all relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule; and

(6) A description of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities.

AD 2020-12-07 was prompted by a report of the separation of a 54H60 model propeller blade installed on a USMCR KC-130T airplane during a flight in July 2017. The subsequent NPRM proposed to retain certain requirements of AD 2020-12-07 and proposed to require initial and repetitive ECIs of all propeller blades installed on Hamilton Sundstrand 54H model propellers with a propeller hub, model 54H60, installed. Additionally, the NPRM proposed to require replacement of any propeller blade that fails inspection.

The FAA issued NPRM, Project Identifier AD-2020-01314-P, under the authority described in Title 49, Subtitle VII, Part A, Subpart III, Section 44701, General requirements. Under that section, the FAA is charged with promoting safe flight of civil aircraft in air commerce by prescribing minimum safety standards required in the interest of safety. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on the propellers identified in the NPRM.

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.

There are no relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule.

FAA used the definition of small entities in the RFA for this analysis. The RFA defines small entities as small businesses, small governmental jurisdictions, or small organizations. In 5 U.S.C. 601(3), the RFA defines “small business” to have the same meaning as “small business concern” under section 3 of the Small Business Act. The Small Business Act authorizes the Small Business Administration (SBA) to define “small business” by issuing regulations.

SBA (2019) has established size standards for various types of economic activities, or industries, under the North American Industry Classification System (NAICS). 1 These size standards generally define small businesses based on the number of employees or annual receipts.

The FAA identified fifty-three (53) airplanes with 54H model propellers having propeller hub, model 54H60, installed. These 53 airplanes are registered to twenty (20) entities. Twenty (20) airplanes are registered to the United States Government entities, including the U.S. Customs and Border Protection, which operates thirteen (13) of these airplanes. The FAA determined that these government entities are not small businesses or other forms of small entity.

The remaining thirty-three (33) airplanes are owned and operated by sixteen (16) private entities. All of these private entities fall under the 481112 NAICS Code (Scheduled Freight Air Transportation) with a small business size standard of a maximum of 1,500 employees to be considered small business.

Six (6) of these thirty-three (33) airplanes are registered to Lynden Air Cargo, LLC, affiliated with the Lynden Incorporated, which, with 2,500 employees on its payroll, is not a small entity per the SBA definition. The FAA considered all other entities that own and operate similar airplanes as small entities since they all employ less than 1,500 employees. Therefore, the FAA estimated that this proposed AD would impact fifteen (15) small entities.

There are no reporting or recordkeeping costs with this proposed AD. However, the FAA estimated that there would be compliance costs due to the proposed requirements as discussed below.

Using the compliance cost estimate that Lynden Air Cargo LLC provided in its public comment to the proposed AD ($9,190 to inspect all propeller blades installed on each propeller, or $36,760 to inspect an airplane with four (4) propellers), the FAA calculated the total compliance costs of this AD on fifteen (15) small businesses that own and operate twenty-seven (27) airplanes at $992,520 ($36,760 × 27). Eight (8) small businesses that own and operate one airplane would incur $36,760. The compliance costs of one small entity with five (5) airplanes would be $183,800. The average compliance costs of this AD on small entities would be $66,168 ($992,520/15).

The FAA estimated the revenue impact of complying with this proposed AD's requirements on these 15 small entities would vary from under 1 percent (0.12 percent) of affected companies' annual revenues to approximately 2 percent (1.69 percent) of their annual revenues.

To the extent that small entities provide more unique services or serve markets with less competition, they may also be able to pass on costs in the form of price increases. However, the FAA assumed that none of these small entities would be able to pass these compliance costs to their customers in terms of higher prices.

The FAA did not find any significant regulatory alternatives to the proposed AD that would still accomplish the safety objectives of this proposed AD.

The FAA issued an NPRM that proposed to amend 14 CFR part 39 by adding an AD that would apply to certain serial-numbered Gulfstream Models G-IV and GIV-X airplanes. The NPRM published in the Federal Register on July 27, 2018 (83 FR 35568). The NPRM was prompted by reports of disbonding and accompanying surface cracking of the composite aft pressure bulkhead. The NPRM stated that this condition, if not addressed, could result in structural failure of the aft pressure bulkhead and loss of cabin pressure.

In the NPRM, the FAA proposed to require a one-time inspection of the forward and aft surfaces of the pressure bulkhead composite panels for damage and repairing any damage found.

After issuance of the NPRM, the FAA reviewed a Gulfstream safety assessment and determined that a bulkhead with disbonding is still capable of carrying operational loads. If the affected airplanes are capable of carrying operational loads without failure, then there is no unsafe condition.

Based on the above information, the FAA has determined that AD action is not warranted and the proposal should be withdrawn.

The FAA received comments from Gulfstream, the European Union Aviation Safety Agency (EASA), and an individual commenter.

Gulfstream requested that the FAA clarify language throughout the preamble and unsafe condition statement. EASA requested the FAA add a requirement to repeat the inspection. The individual commenter requested the FAA clarify the affected serial numbers.

The FAA acknowledges these comments. However, because the NPRM is being withdrawn, the commenters' requests are no longer necessary.

Withdrawal of the NPRM constitutes only such action and does not preclude the FAA from further rulemaking on this issue, nor does it commit the FAA to any course of action in the future.

Since this action only withdraws an NPRM, it is neither a proposed AD nor a final rule. This action, therefore, is not covered under Executive Order 12866 or the Regulatory Flexibility Act.

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0157; Project Identifier AD-2020-00483-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Tara Shawn, Aviation Safety Engineer, Wichita ACO Branch, FAA, 1801 Airport Road, Wichita, KS 67209. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

In December 2018, the FAA received a report from Learjet of corrosion found in the center wing area of a Model 45 (Learjet 45) airplane. Exfoliating corrosion was found on the upper surface of the lower center wing mid spar splice plate during unrelated maintenance. The corrosion appeared to extend half way through the thickness of the splice plate. Since the initial report, the FAA has received 23 additional reports of corrosion from Learjet. The FAA determined areas of the wing center section are not sealed against the elements; in addition, the fuselage has drain holes that allow condensation to drain into the center wing. The accumulation and retention of moisture in the center wing section may lead to corrosion. This condition, if not addressed, could result in failure of the wing centerline joint and lead to partial wing separation with consequent loss of control of the airplane.

The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

The FAA reviewed the following service documents proposed for compliance with this NPRM:

• Bombardier Learjet 40 Service Bulletin 40-57-06, Revision 1, dated October, 26, 2020;

• Bombardier Learjet 45 Service Bulletin 45-57-13, Revision 1, dated October, 26, 2020;

• Bombardier Learjet 70 Service Bulletin 70-57-02, Revision 1, dated October, 26, 2020; and

• Bombardier Learjet 75 Service Bulletin 75-57-01, Revision 2, dated April 19, 2021.

As applicable to the model configuration specified, each service bulletin contains procedures for inspecting for corrosion and deterioration of protective treatments of the center wing area from the front spar to the rear spar between wing stations 33.00L to 33.00R, treating deteriorated areas, and removing any corrosion. Bombardier Learjet 75 Service Bulletin 75-57-01, Revision 2, dated April 19, 2021, does not apply to newly- manufactured airplanes, since Learjet added this inspection to the Airworthiness Limitation Section, which will be delivered with new airplanes starting at S/N 45-597.

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 .

This proposed AD would require accomplishing the actions specified in the service information already described. This proposed AD would also require reporting the inspection results to the FAA by email at Wichita-COS@faa.gov.

The FAA estimates that this AD, if adopted as proposed, would affect 450 airplanes of U.S. registry.

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

The extent of corrosion and deterioration of protective treatments may vary significantly from airplane to airplane. The FAA has no way of determining how much damage may be found on each airplane, the cost to remove the corrosion or treat deteriorated areas (or replacing the part, if needed), or the number of airplanes that may require repair.

If corrosion is found and removed, the FAA estimates that it would take 2 work-hours per airplane to provide data to Learjet. With an average labor rate of $85 per work-hour, the FAA estimates a cost of $170 per airplane.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to take up to 3 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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 proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 this proposed regulation:

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

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

(3) Would 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 proposes to amend 14 CFR part 39 as follows:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0604; Project Identifier 2019-CE-007-AD” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Mike Kiesov, Aviation Safety Engineer, General Aviation & Rotorcraft Section, FAA, International Validation Branch, 901 Locust, Room 301, Kansas City, MO 64106. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The Civil Aviation Authority (CAA), which is the aviation authority for New Zealand, has issued AD DCA/750XL/35, effective date February 7, 2019 (referred to after this as “the MCAI”), to correct an unsafe condition for certain Pacific Aerospace Limited Model 750XL airplanes. The MCAI states:

You may examine the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0604.

The FAA reviewed Pacific Aerospace Limited Mandatory Service Bulletin PACSB/XL/102, Issue 2, dated November 5, 2018. This service information specifies procedures for removing support clamps if installed by following the prior version of the service bulletin; inspecting the engine mount, the temperature probe, and the reversing cable for signs of chafing or damage; installing anti-chafing blade tape onto the engine mount tube; and obtaining further guidance for corrective actions. 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 ADDRESSES .

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 this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this NPRM after determining the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This proposed AD would require accomplishing the actions in the service information described above, except as discussed under Differences Between this Proposed AD and the Service Information.

Where the service information states to contact Pacific Aerospace Limited if chafing or any damage is present on an engine mount, temperature probe, or reversing cable, this proposed AD would require contacting the CAA of New Zealand.

The FAA estimates that this AD, if adopted as proposed, would affect 23 airplanes of U.S. registry.

The FAA also estimates that it would take about 2 work-hours per airplane to comply with the inspection and install anti-chafing blade tape. The average labor rate is $85 per work-hour and required parts would cost about $10 per product for an estimated cost of $4,140 on U.S. operators, or $180 per airplane.

The damage found during the proposed inspection may vary from airplane to airplane. The FAA has no way of knowing how much damage each airplane may have or the cost to repair the damage for each airplane.

Contacting the CAA of New Zealand, if required, would take about 1 work-hour for an estimated cost of $85 per airplane.

The FAA has included all known costs in this cost estimate. According to the manufacturer, however, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to take approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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 proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 this proposed regulation:

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

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

(3) Would 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 proposes to amend 14 CFR part 39 as follows:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0603; Project Identifier 2019-CE-006-AD” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Mike Kiesov, Aviation Safety Engineer, General Aviation & Rotorcraft Section, International Validation Branch, FAA, 901 Locust, Room 301, Kansas City, MO 64106. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The Civil Aviation Authority (CAA), which is the aviation authority for New Zealand, has issued AD No. DCA/750XL/34, effective date February 7, 2019 (referred to after this as “the MCAI”), to correct an unsafe condition for certain Pacific Aerospace Limited Model 750XL airplanes. The MCAI states:

The MCAI requires inspecting the wing internal skin for chafing and taking any necessary corrective actions. You may examine the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0603.

The FAA reviewed Pacific Aerospace Limited Mandatory Service Bulletin PACSB/XL/099, Issue 1, dated January 16, 2019. The service information contains procedures for removing and modifying the inspection panel assembly, inspecting the wing internal skin for chafing, repairing any chafing damage and replacing the fuel filter as necessary, and reinstalling the inspection panel assembly. 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.

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 this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this NPRM after determining the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This proposed AD would require accomplishing the actions specified in the service information already described.

The FAA estimates that this AD, if adopted as proposed, would affect 23 airplanes of U.S. registry. The FAA also estimates that it would take about 5 work-hours per airplane to do the inspection and modification requirements of this proposed AD, and no parts would be necessary. Based on these figures, the FAA estimates the cost of the inspection and modification for U.S. operators to be $9,725, or $425 per product.

In addition, the FAA estimates that any necessary follow-on actions for repair or replacement requirements of this proposed AD would take about 6 work-hours and require parts costing $150, for a cost of $660 per airplane. The FAA has no way of determining the number of airplanes that may need these actions.

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 proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 this proposed regulation:

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

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

(3) Would 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 proposes to amend 14 CFR part 39 as follows:

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 the Class E airspace extending upward from 700 feet above the surface at Marana Regional Airport, Marana, AZ, to support instrument flight rule operations at this airport.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2021-0590/Airspace Docket No. 21-AWP-43.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

This document proposes to amend FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to 14 CFR part 71 by amending the Class E airspace extending upward from 700 feet above the surface to within a 6.7-mile (increased from a 6.6-mile) radius of Marana Regional Airport, Marana, AZ; adding an extension 3.8 miles each side of the 031° bearing from the airport extending from the 6.7-mile radius to 15.3 miles northeast of the airport; adding an extension 3.4 miles each side of the 330° bearing from the airport extending from the 6.7-mile radius to 12.7 miles northwest of the airport; updating the header of the airspace legal description to “Marana, AZ” (previously “Marana Regional, AZ”) to coincide with the FAA's aeronautical database; updating the name of the airport (previously Marana Regional) to coincide with the FAA's aeronautical database; and removing the exclusionary language as it is no longer required.

This action is the result of an airspace review caused by the decommissioning of the Marana NDB which provided navigation information for the instrument procedures at this airport. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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 will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

On November 18, 2019, we proposed to revise our regulations regarding when and how often we conduct continuing disability reviews (CDR), which are periodic reviews of eligibility required for benefit continuation. 1 The proposed rules would have added a category to the existing medical diary categories that we use to schedule CDRs, and would have revised the criteria for assigning each of the medical diary categories to cases. The proposed rules would also have changed the frequency with which we perform a CDR for claims involving permanent impairments.

In this proposed rule, we provided a 60-day comment period, which we extended for 15 days, concluding on January 31, 2020. 2 We received 125,552 comments during the comment cycle. 3 The total comment count reflects electronic submissions through the eRulemaking portals at the Office of the Federal Register and Regulations.gov , as well as emailed, mailed, and faxed comments. We did not make 181 comments available. These 181 comments were submitted after the comment period closed; included personally identifiable information or profanity; were unrelated to the rulemaking subject matter; or were submitted by individuals commenting in their capacity as Social Security Administration (SSA) employees.

The Office of Management and Budget conducted 11 listening sessions under the authority of Executive Order (E.O.) 12866 during December 2020 and January 2021 for interested stakeholders, many of whom also provided thoughtful and relevant comments during the NPRM comment period. We appreciate all the commenters who provided thoughtful feedback on their analysis of, and concerns about, the proposed rule.

After considering the submitted comments and further feedback provided in the listening sessions, we are withdrawing the proposed rule, Rules Regarding the Frequency and Notice of Continuing Disability Reviews (84 FR 63588, November 18, 2019) (RIN 0960-AI27). We noted our intent to withdraw the proposed rule in our Spring 2021 Unified Agenda of Regulatory and Deregulatory Actions. 4

The Acting Commissioner of the Social Security Administration, Kilolo Kijakazi, having reviewed and approved this document, is delegating the authority to electronically sign this document to Faye I. Lipsky, who is the primary Federal Register Liaison for SSA, for purposes of publication in the Federal Register .

The Indianapolis Boulevard Bridge, mile 2.59, over the Indiana Harbor Canal is a double leaf bascule bridge that provides a horizontal clearance of 68-feet and a vertical clearance of 12-feet in the closed position with an unlimited vertical clearance in the open position. The Indianapolis Boulevard Bridge, mile 2.59, over the Indiana Harbor Canal is required to open on signal and there are no previous rulemakings for this bridge to discuss. The Indiana Harbor Canal is a 3-mile long commercial waterway that serves several industries near the city of East Chicago, Indiana including the largest integrated steelmaking facility in North America and the 1,400 acre Whiting Refinery that includes the former 1889 Standard Oil of Indiana refinery at the head of navigation. The Indianapolis Boulevard Bridge, mile 2.59, over the Indiana Harbor Canal is the last drawbridge before the head of navigation; once the 1889 Standard Oil of Indiana refinery was torn down the bridge lost its purpose for regular openings and the waterway silted in around the bridge preventing vessels from approaching. Approximately thirty years after the removal of the refinery the USEPA and USACE partnered to remove polluted sediments form the waterway and established a contaminated dredge spoils area above the bridge. The EPA and USACE contracted dredging company is working a few weeks each season and is the only commercial vessel requesting the bridge to open. There are no records of recreational vessels using the Indiana Harbor Canal.

The only vessel that has requested an opening at the Indianapolis Boulevard Bridge, mile 2.59, over the Indiana Harbor Canal in thirty years has been the dredging contractor, and their work schedule is limited to a few weeks a year due to migratory wildlife concerns in the summer and ice formation in the winter. INDOT has agreed that a drawtender will be assigned to the bridge to accommodate vessel traffic if a 12-hour advance notice is provided.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the ability that vessels can still transit the bridge given advanced notice.

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

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

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01, Rev.1, associated implementing instructions, and Environmental Planning Policy COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). The Coast Guard has determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule promulgates the operating regulations or procedures for drawbridges. Normally such actions are categorically excluded from further review, under paragraph L49, of Chapter 3, Table3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.

Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this proposed rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at https://www.regulations.gov. If your material cannot be submitted using https://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to https://www.regulations.gov and will include any personal information you have provided. For more about privacy and submissions in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

Documents mentioned in this NPRM as being available in this docket and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

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

On July 6, 2021, the Brayman Construction Corporation notified the Coast Guard that it will be conducting an underwater pipe and diffuser installation for Longview Power from 6 a.m. to 9 p.m. on August 23, 2021 through August 25, 2021. The installation will take place at mile 96.5 on the Monongahela River near Maidsville, WV. Hazards associated with proposed operations present a hazard to navigation. The COTP Pittsburgh has determined that potential hazards associated with the installation work would be a safety concern for anyone transiting the river.

The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters before, during, and after the scheduled installation activity. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

The COTP Pittsburgh is proposing to establish a safety zone from 6 a.m. to 9 p.m. on August 23, 2021 through August 25, 2021. The safety zone would cover all navigable waters from mile 96.0 to mile 97.0 on the Monongahela River near Maidsville, WV. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled intallation project. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP Pittsburgh or a designated representative. The regulatory text we are proposing appears at the end of this document.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, and duration of the safety zone. The safety zone will impact a 1-mile stretch of the Monongahela River for 3 days. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rulemaking would allow vessels to seek permission to enter the zone.

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

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

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this proposed rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting from August 23, 2021 through August 25, 2021 from mile 96.0 to mile 97.0 on the Monongahela River near Maidsville, WV. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

Submitting comments. We encourage you to submit comments through the Federal Decision Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2021-0531 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this proposed rule for alternate instructions.

Viewing material in docket. To view documents mentioned in this proposed rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

Personal information. We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have provided. For more about privacy and submissions to the docket in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 165 as follows:

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

Submit your comments, identified by Docket ID No. EPA-R07-OAR-2019-0708 at https://www.regulations.gov. Once submitted, comments cannot be edited or removed from Regulations.gov . The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

The EPA is proposing to approve a submission from the State of Iowa to revise its SIP to incorporate recent updates to Chapter 10 of Polk County's Code of Regulation pertaining to air quality. The Clean Air Act (CAA) allows authorized States to delegate portions of the Act's implementation and enforcement to local governments such as Polk County. The proposed revisions to the Iowa SIP incorporate Polk County's updated definitions and references to the effective dates of Federal rules approved into the State's SIP, update references to methods and procedures for performance test/stack test and continuous monitoring systems, prohibit burning of demolished buildings, and revise permitting exemptions. The proposed revisions to the Iowa SIP also include changes to Polk County's public notice and participation requirements to allow permit modifications to be published online rather than in area newspapers which is consistent with recent revisions to Iowa's SIP (83 FR 191, October 2, 2018).

The EPA is not acting on portions of Polk County Chapter V that amend Standards for Marijuana Production and Marijuana Processing (section 5-21), Permits for New and Existing Stationary Sources, and Chapter 10-59, Permit Fees, that pertain to Prevention of Significant Deterioration (PSD) regulations because Iowa has not delegated the PSD program authority to Polk County.

The EPA is also proposing to approve minor changes to the text of various ordinances that were previously submitted to the EPA, but were inadvertently omitted from previous actions. These revisions were contained in submittals dated December 3, 2007, September 1, 2009, September 19, 2011, April 15, 2014, and November 25, 2015.

The EPA is proposing approval of the revisions to the Iowa SIP to incorporate revisions to Chapter V of the Polk County Board of Health Rules and Regulations listed below. A Technical Support Document (TSD) with a detailed description of the proposed revisions and the rationale for approval has been prepared by the EPA and is provided in the docket for this proposed action.

Article I, In General. The proposed rule changes update the references to effective dates and definitions. The rule changes are administrative updates that do not negatively impact air quality and ensure greater consistency with the Iowa regulations.

Article III, Incineration and Open Burning. Polk County amended this article to add a prohibition against burning demolished buildings. The addition of the prohibition on burning of demolished buildings will lead to reduced particulates and hazardous air pollutants (HAPs) thus improving air quality.

Article VI, Emission Of Air Contaminants From Industrial Processes. Section 5-16 is being amended to include a general provision referencing paragraph (n) which applies to New Source Performance Standards (NSPS). NSPS is delegated by Iowa to Polk County but not SIP-approved by the EPA. The EPA proposes to approve the general provision because it pertains to a delegated authority.

Article VII, Performance Test For Stack Emission Test. In section 5-18, paragraph (a)(2) the title and references to “stack sampling” are being revised to read “performance test (stack test)” and “department” is being changed to read “local program.” These minor changes in wording do not impact air quality. References to performance test methods and specifications and quality assurance procedures for performance evaluations of continuous monitoring systems are being updated to be consistent with the currently approved references in Iowa code. Thus, for consistency, the EPA is proposing to approve these updates.

Article X, Permits, Division 1, Construction Permits. Section 5-28, Construction Permit Required, is being amended to add “Air Quality Division (AQD)” to the title. Subparagraphs (1) through (4) of paragraph (c) are not highlighted in Iowa's SIP revision request as new text. After consulting with Iowa, the State submitted an Addendum dated July 21, 2020, to request EPA approval of paragraphs (1) though (4) of section 5-28 into the SIP, and stated that section 5-28 has been submitted to EPA for approval in the past. The text of these paragraphs is substantively similar to that of Iowa 22.1 (455B) and 22.3 (b) which EPA has approved into Iowa's SIP; thus, the EPA recommends approval of Paragraphs (a) through (c), including subparagraphs (1) through (4) of paragraph (c), to ensure consistency between Polk County's and Iowa's air permitting regulations.

The title of article X, section 5-29, is being revised to add that the application is for a “construction” permit and the acronym “AQD.” The new title now reads “Application for a Construction Permit (AQD).” Also, this section is being revised to add a paragraph title, “construction permit applications,” to revise “health officer” to now read “local program,” to eliminate that the applications must be submitted “in duplicate,” and to add “applications” to the list of items to be submitted by entities seeking a construction permit. The EPA proposes to approve these changes into the Iowa SIP because they clarify the construction permitting process and reduce the number of hard copies that need to be submitted.

Polk County has added the acronym “AQD” representing the Air Quality Division to title X, sections 5-30, Processing of Applications for Construction Permits, section 5-31, Issuance of Construction Permits, and section 5-32, Denial of Permit. These additions represent minor clarifications. As such, the EPA proposes to approve them.

The acronym “AQD” has also been added to title X, section 5-33, Exemptions from Permit Requirements. In item (50), Production Welding, “stationary source” is replacing “facility.” Further, the equations used to calculate the exemption in item (50) are being revised. The calculations make item (50) more stringent than calculations set forth in the welding exemption in the EPA-approved Iowa SIP, section 22.1(2)(ff)(1).

Item (62) has been added to section 5-33. Item (62) exempts from construction permitting non-road diesel engines used for periodic testing and maintenance of natural gas compressor engines. The exemption is consistent with EPA-approved construction permitting requirements in Chapter 22.1(2) “oo” of the Iowa code. The EPA proposes to approve item (62) into the Iowa SIP as it makes Polk County's authorities consistent with Iowa's.

Article X, Permits, Division 2, Operating Permits. “Annual Operating” is being added to the title of section 5-37 to clarify the type of permit to which the section pertains. The acronym “AQD” is being added as well. The reference to “department” is being changed to “Local Program.” Also, this section is being updated to be consistent with Iowa code regarding public notice requirements. The State made revisions that address public participation requirements for its PSD permitting program to reflect updates to the Federal regulations, at 40 CFR part 51, subpart I, published October 18, 2016. The revision removes the requirements for advertisement in a newspaper of general circulation in each region in which the proposed source will be constructed and provides for posting of the public comment period on a website identified by the State. The language and intent of the revisions to the Polk County rules and regulations are consistent with the Federal regulations and the EPA-approved Iowa SIP. Thus, the EPA is proposing to approve these Polk County revisions into the Iowa SIP.

The title for section 5-39 is being revised to clarify that the listed exemptions are for “Annual Operating” Permits. Revisions to item (43) update the language from “facility” to “stationary source(s)” and correct the equation for exemption from permitting for welding activities to agree with that in Iowa code. The EPA is proposing to approve these revisions because they clarify the permit exemptions.

Items (56), Equipment related to research and development activities at a stationary source, (57), Exemptions for non-road diesel combustion engines, and item (58), fuel burning equipment for indirect heating or cooling with a capacity less than one million Btu per hour input when burning No. 1 or No. 2 fuel oil, are consistent with previously approved exemptions in section 22.1(b) of the Iowa SIP. In paragraphs (57) and (58), Polk County has elected to be more stringent in its regulations than the EPA-approved Iowa code for similar operations. The EPA is proposing to approve items (56), (57) and (58) into the Iowa SIP.

Section 5-39, paragraph (b) was not highlighted as new language in Iowa's SIP revision request; however, following discussions with Iowa, the state indicated that this paragraph had been requested for approval in a previous submittal, and requested approval of this paragraph in its July 21, 2020, Addendum. This paragraph discusses exemptions from permitting for smaller liquified or natural gas fired heaters, residential wood or pellet heaters, cook stoves and fireplace, as well as jet engines, marine engines and locomotives. This paragraph is consistent with Iowa code section 22.1 which is EPA-approved; thus, the EPA is proposing to approve the same Polk County exemptions.

Revisions to sections 5-40, 5-42, 5-43 and 5-44 are clarifications that the permits discussed are “Annual Operating” permits issued by AQD. The EPA is proposing to approve these minor editorial changes, as there is no impact to air quality.

The submittals met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfies the completeness criteria of 40 CFR part 51, appendix V. In addition, these proposed revisions meet the substantive SIP requirements of the CAA, including section 110 and implementing regulations. These proposed revisions are also consistent with applicable EPA requirements of title V of the CAA and 40 CFR part 70.

The EPA is proposing to approve revisions to the Iowa SIP to incorporate the revisions to chapter 5, Air Pollution, of the Polk County Board of Health Rules and Regulations. The proposed revisions clarify rules, make revisions and corrections, and rescind portions of rules no longer relevant to the air program. The EPA has determined that approval of these proposed revisions will not adversely impact air quality and will ensure consistency between the local, State and federally-approved rules, and will ensure Federal enforceability of the State's revised air program rules.

In this document, the EPA is proposing to include regulatory text in an EPA final rule that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the Iowa Regulations described in the proposed amendments to 40 CFR 52 set forth below. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

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

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

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

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

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

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

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

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

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

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

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

Submit your comments, identified by Docket ID No. EPA-R07-OAR-2021-0405, at https://www.regulations.gov. Once submitted, comments cannot be edited or removed from Regulations.gov . The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

The EPA is proposing to approve SIP revisions submitted by the State of Missouri on November 12, 2019, revising the 1997 PM 2.5 maintenance plan. This SIP revision demonstrates continued maintenance of the 1997 PM 2.5 NAAQS in the St. Louis area through the future year of 2025. The maintenance area boundary includes the Missouri counties of Franklin, Jefferson, St. Charles, and St. Louis along with the City of St. Louis.

Through this action, the Missouri Department of Natural Resources (MoDNR) is requesting EPA to approve this maintenance plan into Missouri's SIP pursuant to Clean Air Act (CAA) Section 175A as a replacement to the maintenance plan previously approved by EPA on October 2, 2018 (83 FR 38033).

On August 3, 2018, EPA published in the Federal Register a final rulemaking approving the State of Missouri's request to redesignate the Missouri portion of the St. Louis nonattainment area to attainment and their demonstration for maintaining the 1997 PM 2.5 NAAQS through the ten-year maintenance period. The effective date for this approval was on October 2, 2018 (83 FR 38033).

The SIP revision we are acting on in this proposal, removes the reliance on the St. Louis vehicle Inspection and Maintenance (I/M) program and the use of Reformulated Gasoline (RFG) for continued maintenance of the 1997 PM 2.5 standard. To support this revision, Missouri utilized EPA's 2014 Motor Vehicle Emissions Simulator (MOVES2014b) emission modeling system to project revised mobile source emissions by removing emissions reductions related to I/M and RFG throughout the maintenance period to the future year of 2025.

Tables 1 and 2 below lists the total direct PM 2.5 and PM 2.5 precursor emissions for the attainment year 2008 and the projection year 2025 for point, area, onroad and nonroad source categories of the five counties in the St. Louis area. Because the area attained the standard in 2008, this represents a level of emissions suitable to maintain compliance with the 1997 PM 2.5 standard. By comparing the total emissions in Tables 1 and 2, Missouri's emissions analysis shows substantial decreases in mobile source emissions and decreases in total source category emissions through the maintenance period of 2025. These decreases in direct PM 2.5 and precursor pollutants demonstrate the area will continue to meet the 1997 PM 2.5 standard throughout the maintenance period without relying on the I/M program or RFG requirements in the Missouri portion of the maintenance area.

It is important to note approval of this maintenance plan revision does not remove the I/M program or the RFG program requirements from the SIP.

In addition, the motor vehicle emissions budgets (MVEBs) from the previously SIP approved Maintenance Plan for the PM 2.5 NAAQS  1 and this SIP submittal remain the same. Therefore, there are no new MVEBs being created for this SIP revision. Moreover, EPA has revoked the 1997 primary annual PM 2.5 NAAQS, which has been replaced by the more health protective 2012 primary annual PM 2.5 NAAQS and Missouri is currently in compliance with this standard (84 FR 36472). As a result, areas that have been redesignated to attainment for the 1997 annual PM 2.5 NAAQS ( i.e., maintenance areas for the 1997 annual PM 2.5 NAAQS) will no longer be required to make transportation conformity determinations for that NAAQS (81 FR 58010).

EPA is proposing approval of the revised maintenance plan based on information provided in the emissions projections, modeling results and an evaluation of quality assured air monitoring data submitted as part of this revision and in a previously reviewed analysis as part of the St. Louis Nonattainment Area 1997 PM 2.5 NAAQS Redesignation rulemaking published on August 3, 2018 (83 FR 38033). Current and future projections of air quality and emissions data for this revision demonstrates maintenance for the 1997 PM 2.5 NAAQS.

This revision only affects maintenance for the 1997 PM 2.5 standard, only removes the reliance upon the I/M and RFG programs for continued maintenance and therefore meets the requirements of the Clean Air Act.

The full text of the plan revisions including Missouri's technical demonstration can be found in the State's submission, which is included in the docket for this action.

The State submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State provided public notice on this SIP revision from July 29, 2019 through September 13, 2019 and received one comment from the Missouri Petroleum Marketers and Convenience Store Association, one comment from Abel Realty, and thirteen comments from EPA. After receiving comments, the state revised the SIP prior to submitting the plan to EPA. In addition, as explained above and in more detail in the Missouri submittal document, which is part of the docket, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

We are proposing to approve a SIP revision submitted by the State of Missouri on November 12, 2019, revising the 1997 PM 2.5 maintenance plan. EPA is proposing to determine that this revision would not interfere with attainment or maintenance of the NAAQS or with any other CAA requirement. We are processing this as a proposed action because we are soliciting comments on this proposed action. Final rulemaking will occur after consideration of any comments.

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

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

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

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

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

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

• Is not subject to requirements of the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; and

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

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

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

This is a summary of the Commission's document, Public Notice, in WC Docket No 19-195, DA 21-853, released on July 16, 2021. The full text of this document, including the Technical Appendix is available for public inspection and can be downloaded at https://www.fcc.gov/document/input-sought-mobile-challenge-verification-technical-requirements or by using the Commission's ECFS web page at www.fcc.gov/ecfs.

This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must: (1) List all persons attending or otherwise participating in the meeting at which the ex parte presentation was made; and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with § 1.1206(b) of the Commission's rules. In proceedings governed by § 1.49(f) of the rules or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml., .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

The rulemaking required under section 802(a)(1) of the Broadband DATA Act is exempt from review by OMB and from the requirements of the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. As a result, the Public Notice will not be submitted to OMB for review under section 3507(d) of the PRA.

1. With this Public Notice, the Wireless Telecommunications Bureau (WTB), the Office of Economics and Analytics (OEA), and the Office of Engineering and Technology (OET) (collectively, the Bureau and Offices) take the next step in implementing the requirements of the Broadband DATA Act and improving the Commission's data on broadband availability as part of the Broadband Data Collection (BDC). To implement the Broadband DATA Act's requirements and obtain better mobile broadband availability data, the Commission delegated to the Bureau and Offices the obligation to develop: (1) Technical requirements for a challenge process that will enable consumers and other third parties to dispute service providers' coverage data; (2) a process to verify service providers' coverage data; and (3) a process to accept crowdsourced information from third parties. These measures will enable the Commission, Congress, other federal and state policy makers, Tribal entities, consumers, and other third parties to verify and supplement the data collected by the Commission on the status of broadband availability throughout the United States.

2. This Public Notice seeks comment on proposed technical requirements to implement the mobile challenge, verification, and crowdsourcing processes required by the Broadband DATA Act. These requirements include the metrics to be collected for on-the-ground test data and a methodology for determining the threshold for what constitutes a cognizable challenge requiring a provider response. The Public Notice also provides tentative views and seeks comment on the types of data that likely will be probative in different circumstances for validating broadband availability data submitted by mobile service providers. The Public Notice and the detailed Technical Appendix, Appendix A, propose detailed processes and metrics for challengers to use to contest providers' broadband coverage availability, for providers to follow when responding to a Commission verification request, and for state, local, and Tribal governmental entities and other third parties to follow when submitting verified broadband coverage data. For purposes of this Public Notice, the Bureau and Offices generally refer to state, local, and Tribal entities as “government entities” or “governmental entities.” The Public Notice seeks comment on the technical requirements for these complex issues to assure that the broadband availability data collected in the challenge and other data verification and crowdsource processes serves the important broadband data verification purposes envisioned in the Broadband DATA Act.

3. The Broadband DATA Act requires the Commission to collect granular data from broadband internet access service providers on the availability and quality of broadband service and also to establish a challenge process, verify the accuracy and reliability of the broadband coverage data that providers are required to submit in their BDC filings, and improve data accuracy through a crowdsourcing process. The Broadband DATA Act also requires the Commission to develop “a process through which it can collect verified data for use in the coverage maps from: (1) [s]tate, local, and Tribal governmental entities that are primarily responsible for mapping or tracking broadband internet access service coverage for a [s]tate, unit of local government, or Indian Tribe, as applicable; (2) third parties . . . ; and (3) other Federal agencies.” In its Second Order and Third Further Notice, the Commission adopted some of the Broadband DATA Act's requirements for collection and reporting broadband data from providers, developed the framework for the BDC, established a process for verifying the broadband data it receives from providers in their BDC filings, and adopted a basic framework for collecting crowdsourced information. While the challenge process, crowdsource data, and other FCC efforts will all serve to validate the data submitted by providers, for purposes of this Public Notice, “verification” or “verification process” refers to the internal process the Commission sought comment on in section IV.D. of the Third Further Notice and adopted in section III.E. of the Third Order. In the Third Order, the Commission adopted additional requirements for collecting and verifying provider-submitted data and established the challenge process. The Commission directed the Bureau and Offices to design and develop the new BDC platform for mapping broadband availability, and to set forth the specifications and requirements for the mobile challenge, verification, and crowdsourcing processes. The Commission was able to begin development of the BDC systems and the proposed technical requirements to implement these processes after funding to implement the Act was appropriated in December 2020.

4. In the Third Order, the Commission determined that it should aggregate speed test results received from multiple consumer challenges in the same general area in order to resolve challenges in an efficient manner, mitigate the time and expense involved, and ensure that the mobile coverage maps are reliable and useful. When these aggregated results reach an appropriate threshold, they will constitute a cognizable challenge requiring a provider response. While the Commission acknowledged that consumers are likely to submit challenges in distinct, localized areas instead of expending the time and resources to test in a broader area or for extended periods, it also recognized that providers should not be subject to the undue cost of responding to a large number of challenges in very small areas. In response to the Second Order and Third Further Notice, providers argued that a requirement to respond to every consumer challenge would be a substantial burden. The Commission directed OEA, in consultation with WTB, to determine the threshold number of mobile consumer challenges within a specified area that will constitute a cognizable challenge triggering a provider's obligation to respond. In connection with that determination, the Commission also directed OEA, in consultation with WTB, to establish: (1) The methodology for determining this threshold; and (2) the methodology for determining the boundaries of a geographic area where the threshold for a cognizable challenge has been met.

5. Consistent with the approach it adopted for consumer challenges, the Commission stated that it would also aggregate speed test evidence received from multiple government and third-party challengers in the same general area. The Commission directed OEA to determine the threshold number of mobile governmental and third-party challenges within the same general area that will constitute a cognizable challenge that requires a provider response. Similar to the consumer challenges, the Commission directed OEA, in consultation with WTB, to establish the methodology for this threshold and the methodology for determining the boundaries of an area where the threshold has been met.

6. The Broadband DATA Act requires the Commission to “establish a user-friendly challenge process through which consumers, [s]tate, local, and Tribal governmental entities, and other entities or individuals may submit coverage data to the Commission to challenge the accuracy of— (i) the coverage maps; (ii) any information submitted by a provider regarding the availability of broadband internet access service; or (iii) the information included in the Fabric.” The Commission established requirements for challenges to mobile service coverage reporting in the Third Order and directed the Bureau and Offices to adopt additional implementation details.

7. At the outset, the Bureau and Offices note that coverage maps generated using propagation modeling are probabilistic due to the variability of mobile wireless service. The BDC coverage maps will be based on specifications adopted by the Commission to reflect where a mobile service provider's models predict a device has at least a 90% probability of achieving certain minimum speeds at the cell edge for the parameters and assumptions used in the modeling. But an individual speed test conducted in an area where a provider's propagation model predicts adequate coverage may not, by itself, be sufficient to establish the on-the-ground reality of service in that area. Throughout this Public Notice the Bureau and Offices use the term “adequate coverage” to refer to coverage where a device should achieve upload and download speeds meeting or exceeding the minimum values associated with the provider's map for a given technology. The Bureau and Offices have therefore designed the mobile challenge process to evaluate the on-the-ground truth of whether devices are able to achieve particular minimum speeds at least 90% of the time, measured at any point within the covered area and at any time during typical usage hours. This approach strives to collect sufficient measurements to ensure the process is statistically valid, while at the same time meeting the statutory obligation to keep the challenge process “user-friendly.” The Bureau and Offices acknowledge that on-the-ground service can be measured and analyzed in ways other than the approach set forth herein, but the Bureau and Offices believe that their approach has the benefit of being both straightforward and consistent with the framework adopted by the Commission.

8. To implement the Commission's directives, the Bureau and Offices propose to evaluate the speed tests submitted by consumers in combination with the speed tests submitted by governmental and third-party challengers in the challenge process. Under this approach, the Bureau and Offices would combine such speed test evidence and apply a single methodology to determine whether the threshold for a cognizable challenge has been met and to establish the boundaries of the challenged area. Since the Bureau and Offices propose to require all entities submitting challenges to meet the same thresholds and follow similar procedures for submitting challenge data, the Bureau and Offices see little functional difference between consumer and governmental or third-party challenges. As such, the Bureau and Offices believe combining all challenges will result in more robust and accurate challenges.

9. In addition to combining consumer speed tests and governmental and third-party speed tests, the Bureau and Offices propose to validate each submitted speed test and exclude tests that are outside the scope of the challenge process, do not conform to the data specifications, or do not otherwise present reliable evidence. The Bureau and Offices propose to accept as valid speed tests only those tests conducted between the hours of 6:00 a.m. and 10:00 p.m. local time, so that speed tests are reflective of the hours that consumers typically use mobile broadband networks. The Bureau and Offices acknowledge that their proposal departs slightly from the time range proposed by the Commission, which would allow for tests to be conducted between 6:00 a.m. and 12:00 a.m. (midnight) local time. However, the Bureau and Offices believe that tests conducted after 10:00 p.m. may likely record network performance that is materially different than tests conducted earlier in the day due to reduced cell loading. The Bureau and Offices seek comment on this proposal and their assumptions about network traffic patterns. The Bureau and Offices also propose to compare each speed test against the relevant coverage map. Specifically, the Bureau and Offices propose to compare speed tests for a particular network technology ( e.g., 3G, 4G LTE, or 5G) to the coverage maps for the corresponding technology, to compare the environment of the speed test—stationary or in-vehicle mobile—to the coverage map of the corresponding modeled environment, and to treat as invalid and exclude any speed tests that fall outside the boundaries of the provider's most recent coverage data for the relevant technology and modeled environment. Additionally, because the Bureau and Offices do not believe there is a reliable way to evaluate mobile voice coverage using the speed test data which the Commission requires for submitting challenges, the Bureau and Offices propose not to permit challenges to the voice coverage maps submitted by mobile service providers. The Bureau and Offices seek comment on these proposals.

10. After excluding any speed tests that fail the validations proposed above, the Bureau and Offices propose to associate the location of each validated speed test with a particular underlying geography depicted as a specific hexagonal cell area based upon the H3 geospatial indexing system. H3 is an open-source project developed by Uber Technologies, Inc. that overlays the globe with hexagonal cells of different sizes at various resolutions, from zero to 15. The lower the resolution, the larger the area of the hexagonal cell. The H3 system is designed with a nested structure in which each hexagonal cell can be further subdivided into seven “child” hexagons at the next higher ( i.e., finer) resolution that approximately fit within the “parent” hexagon. Because of this nested structure, using the H3 system to group speed tests allows for challenges at multiple levels of granularity. The nested structure includes 16 total H3 resolutions of hexagons ranging in average area size from approximately 4.25 million square kilometers to 0.9 square meters. In the case where a test reports more than one pair of distinct geographic coordinates ( e.g., because the device was in motion), the Bureau and Offices propose to associate the test with the midpoint of the reported coordinates. The Bureau and Offices propose to use a system based upon hexagonal shapes instead of squares or rectangles because hexagons better enable them to evaluate challenges across multiple levels of granularity which can cover a significant area. The Bureau and Offices further propose that the smallest cognizable challenge would be to a single resolution 8 hexagonal cell, which has an area of approximately 0.7 square kilometers. The Bureau and Offices seek comment on this choice of geographical area, including their proposal to use the H3 geospatial indexing system, as well as the ideal resolution or minimum size of the area to consider a cognizable challenge.

11. As part of the proposed methodology, the Bureau and Offices would evaluate all valid challenger speed tests for a given technology within each hexagon to determine whether to create a cognizable challenge to the coverage in that area. In so doing, the Bureau and Offices propose to categorize each speed test as either a “positive” test or a “negative” test based upon whether the test is consistent or inconsistent with the provider's modeled coverage. The Bureau and Offices would consider a negative test to be a speed test that does not meet the minimum predicted download or upload speed based on the provider-reported technology-specific minimum speeds with the cell edge probability and cell loading factors modeled by the provider. The Bureau and Offices would consider a positive test to be a speed test that records speeds meeting or exceeding the minimum download and upload speeds the mobile service provider reports as available at the location where the test occurred. The Bureau and Offices seek comment on this proposal. Alternatively, rather than considering a speed test as “negative” when either the recorded download or upload speed fails to meet the minimum predicted speeds for that area, should the Bureau and Offices evaluate the download and upload portions of each test independently? The Bureau and Offices note that speed test applications (apps) typically measure download, upload, and latency metrics sequentially and not simultaneously, and thus evaluating these metrics independently may better account for geographic and/or temporal variability at the expense of adding complexity to their proposed approach. The Bureau and Offices seek comment on this alternative and also on whether the Bureau and Offices should consider any other methodologies to address the probabilistic nature of mobile wireless coverage and the potential for test results “at the margins” (either on the download speed or the upload speed) to either overrepresent or underrepresent coverage. Commenters proposing any alternative methodologies should explain how their proposals are consistent with the requirements and standardized reporting parameters set forth by the Commission and in the Broadband DATA Act. By aggregating speed tests and requiring challenges to meet the thresholds described below, the Bureau and Offices tentatively conclude that the methodology the Bureau and Offices propose above would ensure that challenges are temporally and geographically diverse, and therefore reflect a robust and representative sample of user experience. As such, the Bureau and Offices anticipate that situations in which a mobile service provider has throttled speeds of consumers that exceed data limits will have little, if any, effect on the challenge process. The Bureau and Offices seek comment on their assumptions, tentative conclusions, and whether there are other ways to address the issue of throttling.

12. The Bureau and Offices propose to consider a provider's coverage for a given technology in a resolution 8 hexagon to be challenged when the set of valid speed tests meets three thresholds: (1) A geographic threshold, (2) a temporal threshold, and (3) a testing threshold. For the geographic threshold, the Bureau and Offices propose to require that at least four child hexagons (or “point-hexes”) within the resolution 8 hexagon include two or more tests taken within each point-hex, and that at least one of the tests in each point-hex be negative. The Bureau and Offices define a point-hex as a resolution 9 child hexagon for a given resolution 8 hexagon. A resolution 9 hexagon has an area of approximately 0.1 square kilometers. The Bureau and Offices propose to require fewer than four point-hexes to include tests when there are fewer than four of the seven point-hexes of a resolution 8 hexagon that are “accessible”—that is, where at least 50% of the point-hex overlaps with the provider's reported coverage data and a road runs through the point-hex. Setting these dual requirements will help to demonstrate that inadequate coverage occurs at multiple locations within the resolution 8 hexagon. For the temporal threshold, the Bureau and Offices propose to require at least two negative tests be conducted at different times of day, separated by at least four hours, to demonstrate persistent inadequate coverage. For the testing threshold, the Bureau and Offices propose to require at least five negative tests within the resolution 8 hexagon when 20 or fewer total challenge tests have been submitted within the hexagon. When more than 20 challenge tests have been submitted within the hexagon, the Bureau and Offices propose to require that the percentage of negative tests within the resolution 8 hexagon statistically demonstrate, using a 0.95 statistical confidence level, that the probability of a test achieving the minimum speeds reported for the provider's coverage is less than 90% and therefore warrants a challenge. The required percentage of negative tests would thus vary, from at least 24% when between 21 and 30 challenge tests have been submitted within the hexagon, to 16% when 100 or more tests have been submitted. The Bureau and Offices also propose that a larger, “parent” hexagon (at resolutions 7 or 6) be considered challenged if at least four of its child hexagons are considered challenged. Consistent with the Commission's direction to consider “whether the tests were conducted in urban or rural areas,” the Bureau and Offices propose to allow challenges that account for differences in areas. The proposal sets forth a different geographic threshold depending on the road density of each resolution 8 hexagon which the Bureau and Offices anticipate will make it easier for challengers to establish a challenge in less densely populated areas. Additionally, the proposal includes a process to trigger challenges to a parent or grandparent hexagon (at resolutions 7 and 6, respectively) that likewise takes into account this different geographic threshold, thus more easily allowing for challenges over large rural areas. The Bureau and Offices seek comment on this proposed methodology and the associated thresholds. Specifically, the Bureau and Offices seek comment on whether these thresholds are sufficient to adequately reflect the actual coverage in an area while maintaining a user-friendly challenge process. Should additional tests and testing at additional times of day be required in order to overcome typical variability in mobile wireless coverage? Alternatively, instead of the Bureau and Offices proposed temporal threshold, should the Bureau and Offices categorize tests into different temporal ranges ( e.g., 6:00 to 10:00 a.m., 10:00 a.m. to 2:00 p.m., 2:00 to 6:00 p.m., and 6:00 to 10:00 p.m.) and require tests in different time ranges to account for the temporal variability of mobile networks, such as variability due to cell loading? Should the Bureau and Offices consider other metrics that correlate with the availability of mobile broadband ( e.g., signal strength or other radiofrequency metrics) or that provide an indication of real-world conditions that impact throughput, such as cell loading, when determining the temporal or testing thresholds, and if so, how should the Bureau and Offices adjust these thresholds in relation to such metrics? Once the challenge process has been implemented, the Bureau and Offices anticipate that the Bureau and Offices may revisit and modify these thresholds, after notice and comment, if they are not sufficient to provide a clear determination of actual coverage conditions. Appendix A of the Public Notice provides a more detailed technical descriptions of these proposed thresholds.

13. Because mobile service providers are required to submit two sets of coverage data for a given technology—one map modeled to assume a device is in a stationary environment and one map modeled to assume a device is in-vehicle and in a mobile environment—the Bureau and Offices propose to evaluate all tests for a given technology against each map independently when determining whether to establish a cognizable challenge. That is, the Bureau and Offices would filter speed tests to exclude any stationary tests that fall outside of the provider's stationary coverage map and exclude any in-vehicle mobile tests that fall outside of the provider's in-vehicle mobile coverage map. The Bureau and Offices would then aggregate all of the remaining stationary and in-vehicle mobile tests and compare these tests against the coverage data for a given technology and modeled environment. If the aggregated tests in a resolution 8 hexagon meet all three thresholds proposed above, the Bureau and Offices would consider that map's coverage to be challenged for that hexagon. Because the two sets of coverage data may differ (especially at the edge of a provider's network), tests submitted as challenges against the same provider within the same hexagon may be sufficient to create a challenge against one of the maps and insufficient to create a challenge against the other. The Bureau and Offices seek comment on this proposed approach to evaluating challenges against stationary and in-vehicle mobile maps. The Bureau and Offices acknowledge that stationary tests and in-vehicle mobile tests may not be entirely homogeneous measurements of an on-the-ground experience. However, the Bureau and Offices believe that aggregating such tests when evaluating challenges would more closely align with the Broadband DATA Act requirement to develop a “user-friendly” challenge process and would thus outweigh any cost to accuracy in treating such tests as homogeneous. In the alternative, if the Bureau and Offices were to not aggregate such tests and only evaluate stationary tests against stationary maps and separately evaluate in-vehicle mobile tests against in-vehicle mobile maps, the Bureau and Offices anticipate that it may be significantly more difficult to establish a challenge to certain coverage data. For example, if most consumers conduct stationary tests while most government and third-party entities conduct in-vehicle mobile tests ( i.e., drive tests), segregating such tests when evaluating challenges would likely result in tests meeting all three proposed thresholds in fewer resolution 8 hexagons. Moreover, there is a higher likelihood that, after adjudicating the challenges, portions of a provider's coverage data may show a lack of coverage for one type of map, due to successful challenges, yet still show robust coverage for the other type of map due solely to an absence of one type of test and in ways that are inconsistent with mobile wireless propagation. The Bureau and Offices seek comment on this view and on any alternatives to reconciling challenges to these two sets of coverage data.

14. In the Third Order, the Commission required consumer challengers to use a speed test app approved by OET for use in the challenge process and provided the metrics that approved apps must collect for each speed test. The Commission directed OET, in consultation with OEA and WTB, to update the FCC Speed Test app as necessary or develop a new speed test app to collect the designated metrics, so that challengers may use it in the challenge process. For government and third-party entity challengers, the Commission did not require the use of a Commission-approved speed test app but instead set forth the information that all submitted government and third-party challenger speed test data must contain and directed OEA, WTB, and OET to adopt additional testing requirements if they determine it is necessary to do so. The Bureau and Offices propose to update the metrics that approved apps must collect for consumer challenges and that government and third party entity challenger speed test data must contain. Specifically, the Bureau and Offices propose that on-the-ground test data submitted by challengers meet the following testing parameters: (1) A minimum test length of 5 seconds and a maximum test length of 30 seconds; (2) test measurement results that have been averaged over the duration of the test ( i.e., total bits received divided by total test time); and (3) a restriction that tests must be conducted between the hours of 6:00 a.m. and 10:00 p.m. local time. The Bureau and Offices also propose that on-the-ground challenge test data shall include the following metrics for each test: (1) App name and version; (2) timestamp and duration of each test metric; (3) geographic coordinates measured at the start and end of each test metric with typical Global Positioning System (GPS) Standard Positioning Service accuracy or better; (4) device make and model; (5) cellular operator name; (6) location ( e.g., hostname or IP address) of server; (7) signal strength, signal quality, unique identifier, and radiofrequency (RF) metrics of each serving cell, if available; (8) download speed; (9) upload speed; (10) round-trip latency; (11) the velocity of the vehicle, if available, for in-vehicle tests; and (12) all other metrics required per the most-recent specification for mobile test data released by OEA and WTB. The Bureau and Offices propose to require challengers to collect these data using mobile devices running either a Commission-developed app ( e.g., the FCC Speed Test app) or another speed test app approved by OET to submit challenges. For government and third-party entity challengers, the Bureau and Offices would also allow these data to be collected using other software and hardware. The Bureau and Offices anticipate that updating these parameters will provide the Commission with reliable challenges, while assuring a user-friendly challenge process by allowing consumers to use a readily-downloadable mobile app and preserving flexibility for government and third-party entities to use their own software and hardware. The Bureau and Offices note, however, that certain technical network information and RF metrics are not currently available on Apple iOS devices, thus limiting the conclusions that the Bureau and Offices can draw from on-the-ground tests conducted using such devices. The Bureau and Offices therefore propose to require that, until such time as such information and metrics are available on iOS devices, government and third-party entity challenges must use a device that is able to interface with drive test software and/or runs the Android operating system. However, the Bureau and Offices do not propose this same restriction for challenges submitted by consumers to ensure that the challenge process remains user-friendly and encourage public participation, including by consumers that may use a device running the iOS operating system. The Bureau and Offices seek comment on these proposals.

15. Providers must either submit a rebuttal to the challenge or concede the challenge within a 60-day period of being notified of the challenge. Providers may rebut a challenge by submitting to the Commission either on-the-ground test data and/or infrastructure data, so that Commission staff can examine the provider's coverage in the challenged area and resolve the challenge, and may optionally include additional data or information in support of a response. When a mobile provider responds to a consumer challenge, the challengers who submitted the challenge data would be notified individually by the Bureau or Offices via the online portal and would be able to view the provider's response. The Commission directed OEA to “develop a methodology and mechanism to determine if the data submitted by a provider constitute a successful rebuttal to all or some of the challenged service area and to establish procedures to notify challengers and providers of the results of the challenge.” The Commission “adopt[ed] the same challenge response process for government and third party-entities as [it] do[es] for consumer challenges in the mobile context,” therefore the Bureau and Offices infer the notification process will occur in the same way for challenges made by governmental and other entities as it does for challenges made by consumers. The Bureau and Offices propose for mobile service providers and challengers to be notified monthly of the status of challenged areas. Parties would be able to see a map of the challenged area, and a notification about whether or not a challenge has been successfully rebutted, whether a challenge was successful, and if a challenged area was restored based on insufficient evidence to sustain a challenge. The Bureau and Offices also propose that any area in which the provider does not overturn the challenge but is otherwise no longer challenged ( e.g., because some challenger tests were subsequently considered to be invalid or unreliable evidence), the coverage area would be restored to its pre-challenge status and would be eligible for challenges against it in the future. The Bureau and Offices propose that any valid speed test in a hexagon that was challenged and then restored (but where the provider did not overturn the challenge by demonstrating adequate coverage) may still be used for a future challenge (up to a year from the date the test was conducted). The Bureau and Offices seek comment on these proposals.

16. The Commission also directed OEA, in consultation with WTB, to establish procedures for notifying service providers of cognizable challenges filed against them. Accordingly, the Bureau and Offices propose that the challenged mobile service provider would be notified by the Bureau or Offices via the online portal of the challenged hexagons at the end of each calendar month. The Bureau and Offices seek comment on this proposal and note that this approach would allow challengers to submit additional evidence if desired and grant providers a standard set of deadlines rather than a rolling set of multiple deadlines. If the challenged provider concedes or fails to submit data sufficient to overturn the challenge within 60 days of notification, it must revise its coverage maps to reflect the lack of coverage in the successfully challenged areas.

17. The Commission directed OEA to resolve challenges based on a “preponderance of the evidence” standard with the burden on the provider to verify their coverage maps in the challenged areas. When the challenged mobile service provider chooses to submit on-the-ground speed test data to rebut a challenge, the Bureau and Offices propose to require the provider to meet analogous thresholds to those required of challengers, adjusted to reflect the burden on providers to demonstrate that sufficient coverage exists at least 90% of the time in the challenged hexagons. The Bureau and Offices also propose that mobile providers submit on-the-ground data consistent with the specific testing parameters and methodologies outlined above that the Bureau and Offices propose challengers use when submitting speed test data. The Bureau and Offices propose to require providers to collect these data using mobile devices running either a Commission-developed app ( e.g., the FCC Speed Test app), another speed test app approved by OET to submit challenges, or other software and hardware if approved by staff. As noted above, certain technical network information and RF metrics are not currently available on Apple iOS devices. Accordingly, until such time as these data are available on iOS devices, the Bureau and Offices propose to require providers to use a device that is able to interface with drive test software and/or runs the Android operating system. The Bureau and Offices seek comment on their proposals.

18. The Bureau and Offices propose that the test data that providers submit meet the same three thresholds required of challenger tests: (1) A geographic threshold; (2) a temporal threshold; and (3) a testing threshold. However, the Bureau and Offices propose somewhat different values ( i.e., the number of tests and percentages) for test data for each threshold. For the geographic threshold, the Bureau and Offices propose to require at least four point-hexes of a resolution 8 hexagon to include two tests taken within them, at least one of which must be positive, to demonstrate that adequate coverage occurs at multiple locations within the resolution 8 hexagon. Fewer point-hexes may be tested when not all seven point-hexes of a resolution 8 hexagon are within the coverage area or do not contain at least one road. For the temporal threshold, the Bureau and Offices also propose to require at least two positive tests be taken at times of day separated by at least four hours to demonstrate persistent adequate coverage. For the testing threshold, the Bureau and Offices propose to require at least 17 positive tests within the resolution 8 hexagon when 20 or fewer total response tests have been submitted within the hexagon. When more than 20 response tests have been submitted within the hexagon, the Bureau and Offices propose to require that the percentage of negative tests within the resolution 8 hexagon statistically demonstrate, using a 0.95 statistical confidence level, that the probability of a test achieving the minimum speeds reported in the provider's coverage is 90% or greater and therefore the area has adequate coverage. The required percentage of positive tests would thus vary, from at least 82% when between 21 and 34 response tests have been submitted within the hexagon to 88% when 100 or more tests have been submitted. As with the thresholds proposed for challengers, the Bureau and Offices seek comment on whether these thresholds are sufficient to adequately demonstrate the on-the-ground reality of coverage in an area while maintaining a user-friendly challenge process. The Bureau and Offices expect any future modifications to these thresholds would apply to both challengers and providers. The Bureau and Offices also propose that a provider may demonstrate sufficient coverage in a resolution 8 hexagon that was not challenged if that hexagon is the child of a lower resolution challenged hexagon. As discussed more fully in section 3.2.4 of the Technical Appendix of the Public Notice, for challenged hexagons at resolution 7 or 6, if the provider submits response data sufficient to demonstrate coverage in the hexagon's child hexagons such that fewer than four child hexagons would still be challenged, then the resolution 7 or 6 hexagon would no longer be challenged even if sufficient data were not submitted to rebut a challenge for the remaining child hexagons. If the provider can demonstrate sufficient coverage in a challenged hexagon, the provider would have successfully rebutted the challenge to that hexagon, and the challenge would be overturned. Conversely, if the provider is not able to demonstrate sufficient coverage in a challenged hexagon, the provider would be required to revise its coverage maps to reflect the lack of coverage in such areas. If the provider demonstrates sufficient coverage in some but not all child hexagons and the parent (or grandparent) hexagon remains challenged, we the Bureau and Offices propose that a provider would not be required to remove from its coverage map the portions of the challenged parent (or grandparent) hexagon where the provider demonstrated sufficient coverage in the child hexagons. However, the provider would be required to remove the remaining portion of the challenged parent (or grandparent) hexagon where it did not demonstrate sufficient coverage. The Bureau and Offices propose that any areas where the provider has demonstrated sufficient coverage would be ineligible for subsequent challenge until the first biannual BDC coverage data filing six months after the later of either the end of the 60-day response period or the resolution of the challenge. This is to avoid requiring a provider to repeatedly confirm the same area but also acknowledges that coverage may change over time due to changes in technology and infrastructure. The Bureau and Offices seek comment generally on this approach and as to whether this time period is too short or too long.

19. The Bureau and Offices seek comment on this methodology and invite commenters to propose alternative approaches that would allow for staff to adjudicate most challenges through an automated process. AT&T submitted a preliminary proposal for defining a challenge area based on the test data submitted by the challenger(s), and the Bureau and Offices considered this proposal while developing the proposed methodology. The Bureau and Offices tentatively conclude that their proposed methodology is preferable to that submitted by AT&T, because it ensures the challenge process is both user-friendly and supported by sufficient data, while also targeting a more precise geographic area where broadband coverage is disputed and limiting the burden on providers in responding to challenges. AT&T recommends the Bureau and Offices adopt an approach in which the geographic location of speed tests would determine the size and shape of a polygon that would serve as the challenged area. Moreover, AT&T proposes the Commission adopt a tiered structure in which challenges are filed and adjudicated in a manner proportional to their likelihood of success based on a percentage of valid speed tests in a polygon. This could lead to significant challenged areas with few or no speed tests. The Bureau and Offices' approach differs in that challenged areas would be based on the H3 hexagonal indexing system. Under the Bureau and Offices proposed process, individual speed tests would be aggregated and evaluated collectively, and a hexagon would be classified as challenged once the aggregated speed tests have met geographic, temporal, and testing thresholds in that particular area. In addition to the on-the-ground data or infrastructure information submitted by mobile service providers, staff could also consider other relevant data submitted by challenged providers, request additional information from the challenged provider (including infrastructure data, if necessary), and take such other actions as may be necessary to ensure the reliability and accuracy of the rebuttal data. The Bureau and Offices propose such steps could include rejecting speed tests or requiring additional testing. The Bureau and Offices seek comment on these proposals.

20. Providers may respond to challenges with infrastructure data rather than (or in addition to) on-the-ground speed test data. In cases where a challenged mobile service provider chooses to submit infrastructure data to rebut a challenge, the Bureau and Offices propose that the mobile service provider submit the same data as required when a mobile provider submits infrastructure information in response to a Commission verification request, which would include information on the cell sites and antennas used to provide service in the challenged area. Based on the Bureau and Offices' tentative conclusion below that such data may not be as probative in certain circumstances as on-the-ground speed tests, the Bureau and Offices propose to use these data, on their own, to adjudicate challenges in only a limited set of circumstances. Specifically, a challenged provider may use infrastructure data to identify tests within a challenger's speed test data that the provider claims are invalid or non-representative of network performance. Under the Bureau and Offices' proposal, a provider could claim a speed test was invalid, or non-representative, based on the following reasons: (1) Extenuating circumstances at the time and location of a given test ( e.g., maintenance or temporary outage at the cell site) caused service to be abnormal; (2) the mobile device(s) with which the challenger(s) conducted their speed tests do not use or connect to the spectrum band(s) that the provider uses to serve the challenged area; (3) speed tests were taken during an uncommon special event ( e.g., a professional sporting event) that increased traffic on the network; or (4) speed tests were taken during a period where cell loading exceeded the modeled cell loading factor. While providers may use infrastructure information with hourly cell loading data to rebut a challenge in this scenario to show sporadic or abnormally high cell loading, in the event a high number of challenges indicates persistent over-loading, the Bureau and Offices propose that staff may initiate a verification inquiry to investigate whether mobile providers have submitted coverage maps based on an accurate assumption of cell loading in a particular area. The Bureau and Offices propose to require that mobile providers respond to such a verification inquiry with on-the-ground data. Using this proposed approach, the Bureau and Offices would recalculate the challenged hexagons after removing any invalidated challenger speed tests and consider any challenged hexagons that no longer meet the thresholds required for a challenge to be restored to their status before the challenge was submitted. Challenged providers may also demonstrate sufficient coverage for any areas that remain challenged by submitting on-the-ground speed test data. The Bureau and Offices seek comment on this approach, including on whether there are other reasons or circumstances under which the Bureau and Offices should use infrastructure data alone to determine the outcome of a challenge.

21. The Bureau and Offices seek comment generally on other ways that infrastructure data could be used to automatically evaluate or rebut speed test data submitted by challengers. Where a challenged provider's submitted infrastructure data do not meet one of the processing rules proposed above, the Bureau and Offices propose that Commission staff consider any additional information submitted by the challenged provider or request additional information from the challenged provider. Such information would include on-the-ground speed test data, as specified in the Third Order, and staff would use this information to complete its adjudication of the challenge. The Bureau and Offices acknowledge there may be some scenarios in which a provider may not be able to respond to a challenge with on-the-ground test data due, for example, to the inability to collect on-the-ground data during certain months of the year or other unforeseen circumstances. The Bureau and Offices seek comment on the best approach to handle such situations. One approach would be to allow for providers to seek a waiver of the 60-day response deadline until the provider can make on-the-ground measurements, or a waiver of the requirement to submit either infrastructure or on-the-ground speed tests data in response to a challenge. Another approach would be to allow providers to submit infrastructure data, even if one of the four instances of particular probative value set forth above does not apply, with supplemental data that explain their inability to make on-the-ground measurements at that time. In such cases, the Commission could request that the on-the-ground test data be submitted at a time when such measurements would be more feasible, or that a possible substitute for such data—such as transmitter monitoring software data or third-party speed test data—be submitted instead. Commission staff could also use infrastructure data to do its own propagation modeling and generate its own predicted coverage maps using the data submitted by the provider including link budget parameters, cell-site infrastructure data, and the information provided by service providers about the types of propagation models they used, standard terrain and clutter data, as well as standard propagation models, to determine whether the provider should be required to update its maps. The Bureau and Offices seek comment on other approaches the Bureau and Offices should take where on-the-ground testing is temporarily infeasible.

22. In instances where the Commission staff uses its own propagation modeling to adjudicate challenges, the Bureau and Offices seek comment on how staff should conduct such propagation modeling. What model or models should staff use in different conditions ( e.g., for what combinations of spectrum band and terrain)? What inputs and parameters should staff use beyond those supplied by providers ( e.g., what specific sources of terrain and clutter data in what areas)? What assumptions should the Commission make regarding carrier aggregation? How should staff calculate the throughput in a given area given propagation-model calculations for signal strength? Finally, how should the Commission calibrate its models or ensure their accuracy?

23. The Bureau and Offices also seek comment about how staff should adjudicate instances where the on-the-ground test data and infrastructure data disagree or where the provider-filed coverage and Commission-modeled coverage differ. Under what conditions should staff determine that a given hexagon has network coverage? Would the results of the Commission propagation modeling always be dispositive? For example, should the Bureau and Offices always find that an area has network coverage if so indicated by the Commission propagation model, despite any number of on-the-ground tests that indicated a lack of service at the required speeds? Should the Bureau and Offices incorporate other, related metrics, such as signal strength or cell loading data, when considering how to treat infrastructure data in the adjudication of challenges? And should staff always require providers to update their filings or submit additional data if the Commission's propagation modeling indicate a lack of network coverage? If the Commission propagation model indicates network coverage over part of a hexagon, how should staff adjudicate that area? Should the specific location of on-the-ground test measurements within a challenged hexagon, relative to the Commission-predicted coverage, matter? Are there other scenarios in which the Bureau and Offices should consider adjudicating challenges with only infrastructure data?

24. In the Third Order, the Commission sought to adopt a flexible approach for providers to respond to challenges. Several commenters argued that the Commission should grant providers additional flexibility in responding to challenges, including allowing providers to respond with drive testing data collected in the ordinary course of business, third party testing data (such as speed test data from Ookla or other speed test app), and/or tower transmitter data collected from transmitter monitoring software. As discussed in the Third Order, providers may voluntarily submit these or other types of data to support their rebuttals, but they may not be used in lieu of on-the-ground testing or infrastructure data. Consistent with the Commission's direction, OEA staff will review such data when voluntarily submitted by providers in response to consumer challenges, and if any of the data sources are found to be sufficiently reliable, the Bureau and Offices will specify appropriate standards and specifications for each type of data and add them to the alternatives available to providers to rebut a consumer challenge via public notice.

25. The Bureau and Offices also seek comment regarding the conditions under which a provider's transmitter monitoring software can be relied upon by staff in resolving challenges. For example, in what ways would transmitter monitoring software data augment or reinforce the probative value of infrastructure or other data to rebut challenger speed test data? How precisely do such systems measure the geographic coordinates (longitude and latitude) of the end-user devices, and how does that precision compare to the information collected from on-the-ground testing? Would such software record instances of end-user devices not being able to connect to the network at all? If not, would that exclusion make the data less reliable and probative in the rebuttal process? What other information would staff need to determine how to make use of such data in the challenge process?

26. The Broadband DATA Act requires the Commission to “verify the accuracy and reliability of the [broadband internet access service data that providers submit in their biannual BDC filings] in accordance with measures established by the Commission.” In the Third Order, the Commission determined that OEA and WTB may request and collect verification data from a provider on a case-by-case basis where staff have a credible basis for verifying the provider's coverage data. The Third Order specifies that, in response to an OEA and WTB inquiry to verify a mobile service provider's coverage data, the provider must submit either infrastructure information or on-the-ground test data for the specified area(s). A mobile provider has the option of submitting additional data, including but not limited to on-the-ground test data or infrastructure data (to the extent such data are not the primary option chosen by the provider), or other types of data that the provider believes support its reported coverage. The Commission further directed OEA and WTB to implement this data collection and adopt the methodologies, data specifications, and formatting requirements that providers must follow when collecting and reporting such data. Below, the Bureau and Offices propose processes and methodologies for determining areas subject to verification and for the collection of on-the-ground test data and infrastructure information, as well as information from transmitter monitoring systems and other data. The Bureau and Offices seek comment on each of these proposals, including the additional details and specifications set forth in the Technical Appendix of the Public Notice.

27. The Bureau and Offices propose to identify the portion(s) of a mobile provider's coverage map for which the Bureau and Offices would require verification data—referred to as the targeted area(s)—based upon all available evidence, including submitted speed test data, infrastructure data, crowdsourced and other third-party data, as well as staff evaluation and knowledge of submitted coverage data (including maps, link budget parameters, and other credible information). The Bureau and Offices seek comment on this proposal and on any alternative methodologies for determining where staff have a credible basis for verifying a mobile provider's coverage data.

28. Within the targeted area, the Bureau and Offices propose to require verification data covering a statistically valid sample of areas for which the mobile service provider must demonstrate sufficient coverage in order to satisfy the verification request. The Bureau and Offices propose to start the sampling with the division of the targeted area into unique components called “units.” The complete list of units within the targeted area is called the “frame.” The Bureau and Offices propose to first subdivide the targeted area into units based upon the same hexagonal geography the Bureau and Offices propose to use for grouping challenger speed tests ( i.e., H3 geospatial indexing system at resolution 8). To create the frame, the Bureau and Offices propose to include all resolution 8 hexagons that are within the targeted area or, for those resolution 8 hexagons that are only partially within the boundary of the targeted area, its centroid falls within or on the boundary of the targeted area. The Bureau and Offices next propose to group the hexagonal units that comprise the frame into non-overlapping, mutually exclusive groups (one “stratum” or multiple “strata”). The Bureau and Offices propose to define each stratum based upon one or more variables that are correlated with a particular mobile broadband availability characteristic, such as population, road miles, and/or variation in terrain, and seek comment on what variables the Bureau and Offices should consider. The Bureau and Offices propose to exclude any hexagons that are not accessible by roads from the strata. If an area is unable to be sampled because there are too few hexagons accessible by road, the Bureau and Offices propose to include the minimum number of non-accessible hexagons within the strata as necessary to create a sufficient sample. The Bureau and Offices seek comment on these proposals, and on other methods that can be used to verify the part of the targeted area that cannot be drive tested.

29. Next, the Bureau and Offices propose to select a random sample of hexagons independently within each stratum and to require that a service provider conduct on-the-ground testing within these randomly selected hexagons or else submit infrastructure data sufficient for staff to reproduce coverage for these randomly selected hexagons. When evaluating on-the-ground test data, the Bureau and Offices propose that a sample meet two of the three thresholds proposed for evaluating tests in a challenged hexagon in the challenge process, specifically the geographic and temporal thresholds. The Bureau and Offices also propose to require a minimum of five speed tests in each selected hexagon. The Bureau and Offices would then evaluate the entire set of speed tests to determine the probability that the targeted area has been successfully verified. Under the Bureau and Offices' proposal, for the targeted area to be successfully verified, the probability of adequate coverage must be greater than or equal to 0.9 assessed using a one sided 95% confidence interval. When evaluating infrastructure data, the Bureau and Offices propose that staff review all available data and staff propagation modeling to demonstrate adequate coverage for all hexagonal units in a sample for the targeted area to be successfully verified. Where the data submitted by the provider in response to a verification request are not by themselves sufficient to demonstrate adequate coverage, the Bureau and Offices may request additional information to complete the verification process. The Bureau and Offices seek comment on these proposals.

30. Several commenters supported the Bureau and Offices' proposal in the Second Order and Third Further Notice to verify broadband availability data by requiring providers to submit tests and information on sampled areas, and agreed that it would be an efficient and less burdensome approach than having providers perform annual drive tests or regularly submit infrastructure information. The Bureau and Offices agree that sampling will require lower costs and fewer resources than collecting data from a provider's entire network coverage area. In particular, the proposed approach for sampling the targeted area is designed to minimize the cost and burden placed on service providers while ensuring staff have access to sufficient data to verify coverage in a reliable way. Without such a sampling plan, providers would need to submit substantially more data to demonstrate broadband availability.

31. In response to the Second Order and Third Further Notice, some providers expressed concerns that sampling would not mitigate the costs associated with performing testing and would still be a burden on providers, as it would require a minimum number of tests at different locations. However, compared to requiring providers to regularly drive test their networks or submit large amounts of infrastructure data in response to a verification request, the Bureau and Offices anticipate that their proposal to require providers to submit speed test results or infrastructure information on a case-by-case basis would minimize the time and resources associated with responding to the Commission's verification requests. The proposed stratification methodology would ensure that variation in broadband availability would be as small as possible within hexagons in the same stratum. The Bureau and Offices anticipate this methodology would reduce the sample size ( e.g., the number of test locations), the cost of data collection, and the variance in the estimate of the variable interest (meaning the percentage, P-hat, of positive tests indicating broadband availability), and, in turn, would increase the precision of the final estimate. The Bureau and Offices seek comment on this proposed methodology.

32. In addition, the Bureau and Offices seek comment on other variables which correlate with broadband availability and upon which stratification should be based. The Bureau and Offices also seek comment on the tradeoffs of setting a higher or lower confidence level for this verification process than the thresholds established for the challenge process. Under the Bureau and Offices' proposed methodology, if the provider fails to verify its coverage data, the provider would be required to submit revised coverage maps that reflect the lack of coverage in targeted areas failing the verification. Where a provider fails to verify its coverage and submits revised coverage data, the Bureau and Offices propose to re-evaluate the data submitted by the provider during the verification process against its revised coverage data for the targeted area. If the targeted area still cannot be successfully verified, the Bureau and Offices propose to require the provider to submit additional verification data or further revise its coverage maps until the targeted area is successfully verified. The Bureau and Offices seek comment on this proposal and invite commenters to propose alternative methodologies for generating a statistically valid sample of areas for which the mobile service provider must demonstrate sufficient coverage in response to a verification request.

33. Alternatively, the Bureau and Offices seek comment on the use of available spatial interpolation techniques, such as Kriging, that could be used to evaluate and verify the accuracy of coverage maps based on available measurements. Spatial interpolation techniques can be an alternative or complementary approach to specifying an exact testing threshold since spatial interpolation techniques require fewer data to compare with predictions using propagation models. Although spatial interpolation techniques can readily verify whether or not a hexagonal cell has coverage with speeds at or above the minimum values reported in the provider's submitted coverage data, the incremental benefit over testing thresholds may be minimal because spatial interpolation techniques provide better results as more data is collected. The Bureau and Offices seek comment on the costs and benefits of using spatial interpolation techniques either in addition to or as an alternative to the testing thresholds proposed above for verifying the accuracy of coverage maps.

34. To submit on-the-ground test data in response to a verification inquiry, the Bureau and Offices propose to require that mobile providers conduct on-the-ground tests consistent with the testing parameters and test metrics that the Bureau and Offices propose to require for provider-submitted test data in the challenge process. As described above, the Bureau and Offices propose to require verification data covering a statistically valid sample of areas for which the mobile service provider must demonstrate sufficient coverage in order to satisfy the verification request. To verify coverage with on-the-ground speed test data, the Bureau and Offices propose that the provider submit on-the-ground speed tests within a hexagonal area based upon the H3 geospatial indexing system at resolution 8. The Bureau and Offices would require that these tests meet a threshold percentage of positive tests ( i.e., those recording download and upload speeds at or above the minimum speeds the provider reports in its BDC submission as available at the location where the test occurred). The tests would be evaluated to confirm, using a 95% statistical confidence interval, that the cell coverage percentage is 0.9 or higher. In addition, the Bureau and Offices propose to require that tests meet the same geographic, temporal, and testing thresholds as proposed for evaluating provider rebuttals to challenges. The Bureau and Offices envision that the specific thresholds and the confidence interval proposed would provide balance between the costs to providers associated with verifying maps and the need for the Commission to acquire a significant enough sample to accurately verify mobile broadband availability. The Bureau and Offices seek input from commenters on the costs and benefits associated with these proposed threshold numbers and confidence intervals.

35. The Bureau and Offices propose that if the service provider is able to show sufficient coverage in the selected resolution 8 hexagon, the provider would have successfully demonstrated coverage to satisfy the verification request in that hexagon. The Bureau and Offices seek comment on this proposed methodology and invite commenters to propose alternative approaches that would allow for staff to automatically adjudicate speed test data submitted during the verification process. Staff may consider other relevant data submitted by providers, may request additional information from the provider (including infrastructure data, if necessary), and may take other actions as may be necessary to ensure the reliability and accuracy of the verification process. The Bureau and Offices seek comment on these proposals.

36. In the Third Order, the Commission found that infrastructure information can provide an important means for the Commission to fulfill its obligation to independently verify the accuracy of provider coverage propagation models and maps and provided examples of the infrastructure information that mobile providers may be required to submit as part of a verification inquiry. The Commission further concluded that collecting such data will enable the Commission to satisfy the Broadband DATA Act's requirement that the Commission verify the accuracy and reliability of submitted coverage data.

37. If a mobile service provider chooses to submit infrastructure data in response to a verification request, the Bureau and Offices propose to require the provider to submit such data for all cell sites and antennas that provide service to the targeted area. The Bureau and Offices propose that the Commission staff then evaluate whether the provider has demonstrated sufficient coverage for each selected hexagon using standardized propagation modeling. Under this approach, staff engineers would generate their own predicted coverage maps using the data submitted by the provider (including link budget parameters, cell-site infrastructure data, and the information provided by service providers about the types of propagation models they used). Using these staff-generated maps, the Bureau and Offices would evaluate whether each selected hexagon has predicted coverage with speeds at or above the minimum values reported in the provider's submitted coverage data. In generating the Bureau and Offices' own coverage maps, they propose to use certain standard sets of clutter and terrain data. The Bureau and Offices seek comment on this proposal and seek comment generally on other ways that infrastructure data could be used to evaluate the sufficiency of coverage in their proposed verification process. Staff may also consider other relevant data submitted by providers during the verification process, may request additional information from the provider (including on-the-ground speed test data, if necessary), and may take steps to ensure the accuracy of the verification process. The Bureau and Offices seek comment on these proposals.

38. Alternatively, the Bureau and Offices could use the submitted infrastructure and link budget data, along with available crowdsourced data, to perform initial verification of the claimed coverage within the selected hexagons using standard propagation models as well as appropriate terrain and clutter data. The Bureau and Offices could evaluate the provider's link budgets and infrastructure data for accuracy against other available data, such as Antenna Structure Registration and spectrum licensing data. Under this approach, if the Bureau and Offices' projection of speeds, along with the available crowdsourced data at the challenged locations, does not predict speeds at or above the minimum values reported in the provider's submitted coverage data, the Bureau and Offices propose that Commission staff would consider any additional information submitted by the provider or request additional information from the provider. Such information would include on-the-ground speed test data and staff would use this information to complete its verification of the targeted area. The Commission could also leverage spatial interpolation techniques to evaluate and verify the accuracy of coverage maps based on available crowdsourcing and on-the-ground data. The Bureau and Offices seek comment on this approach and other ways that infrastructure data could be used to verify a provider's coverage in the targeted area.

39. Consistent with the authority the Commission delegated to OEA and WTB in the Third Order to “adopt the methodologies, data specifications, and formatting requirements” that providers must follow when collecting and reporting mobile infrastructure data, and to help ensure that infrastructure information submissions are useful, the Bureau and Offices seek comment on adding additional input fields to the list of infrastructure information providers should include when responding to a verification request. In addition to the types of infrastructure information listed as examples in the Third Order, the Bureau and Offices propose that providers submit the following additional parameters and fields: (1) Geographic coordinates of each transmitter; (2) per site classification ( e.g., urban, suburban, or rural); (3) elevation above ground level for each base station antenna and other transmit antenna specifications, including the make and model, beamwidth, and orientation ( i.e., azimuth and any electrical and/or mechanical down-tilt) at each cell site; (4) operate transmit power of the radio equipment at each cell site; (5) throughput and associated required signal strength and signal to noise ratio; (6) cell loading distribution; (7) areas enabled with carrier aggregation and a list of band combinations (including the percentage of handset population capable of using this band combination); and (8) all other metrics required per the most-recent specification for infrastructure data released by OEA and WTB. The Bureau and Offices anticipate the Bureau and Offices will need all of this infrastructure information to use as inputs for Commission engineers to generate their own predicted coverage maps. While the Bureau and Offices recognize that several commenters recommended limiting the scope of infrastructure data in response to the Second Order and Third Further Notice, the Bureau and Offices anticipate that collecting additional infrastructure data based on the data specifications listed above will be necessary in order for such data to be useful in verifying providers' biannual data submissions. The Bureau and Offices seek comment on these proposals and tentative conclusions.

40. Mobile service providers may supplement their submission of infrastructure information or on-the-ground test data required by verification inquiry with “other types of data that the provider believes support its coverage.” In addition, OEA and WTB may require the submission of additional data when necessary to complete a verification inquiry. The Bureau and Offices seek comment on what types of other data, besides infrastructure information and on-the-ground test data, will be useful to verifying mobile service providers' coverage data and whether such data should be submitted in a specific format.

41. For example, in the Third Order, the Commission stated that it will allow mobile broadband service providers to supplement their submission of either infrastructure information or on-the-ground test data with additional data that the provider believes support its coverage, such as data collected from its transmitter monitoring systems and software. The Commission found that such data currently have not been shown to be a sufficient substitute for either on-the-ground testing or infrastructure data in response to a verification investigation. However, the Commission directed OEA and WTB to accept and review transmitter data to the extent they are voluntarily submitted by providers in response to verification requests from staff. These data could be especially helpful to the extent that they support potential reasons for service disruptions during the time interval in which measurements were performed, or to describe remedial improvements to network quality. To that end, the Commission delegated authority to OEA and WTB to specify appropriate standards and specifications for such data and add them to the alternatives available to providers to respond to verification requests if staff concludes that such methods are sufficiently reliable.

42. In the absence of any experience with this process it is premature to propose specifications and standards to receive voluntary data collected from a provider's transmitter monitoring systems and software. However, mobile service providers may submit transmitter data in addition to the infrastructure or on-the-ground data they submit in response to a verification investigation. The Bureau and Offices propose that OEA and WTB analyze transmitter data submitted by mobile service providers to determine whether such data accurately depict coverage by a mobile service provider. The Bureau and Offices seek comment on this proposal.

43. The Broadband DATA Act requires the Commission to develop a process through which it can collect verified data for use in the coverage maps from: (1) State, local, and Tribal government entities primarily responsible for mapping or tracking broadband internet access service coverage in their areas; (2) third parties, if the Commission determines it is in the public interest to use their data in the development of the coverage maps or in the verification of data submitted by providers; and (3) other federal agencies. In the Third Order, the Commission directed OEA to collect verified mobile on-the-ground data from governmental entities and third parties through a process similar to that established for providers making their semiannual Broadband Data Collection filings.

44. In accordance with the Commission's direction in the Third Order and to ensure the Commission receives verified and reliable data, the Bureau and Offices propose that governmental entities and third parties should submit on-the-ground test data using the same metrics and testing parameters as the Bureau and Offices propose above for mobile providers to use in submitting on-the-ground test data. While the Massachusetts Department of Telecommunications and Cable asks the Commission to adopt a “minimum standard” and avoid “strict submission methodology guidelines” on data submissions by states and other third parties, the Bureau and Offices do not propose standards that are lower than or differ from those the Bureau and Offices propose for mobile providers. As discussed, these data can be used to verify service providers' coverage maps, similar to the data submitted by mobile providers. The Bureau and Offices therefore anticipate that assigning consistent, standardized procedures for governmental entities and third parties to submit on-the-ground data will be both appropriate and necessary to ensure the broadband availability maps are as accurate and precise as possible.

45. The Bureau and Offices also propose that, to the extent the Commission has verified on-the-ground data submitted by governmental entities and third parties, such data may be used when the Commission conducts analyses as part of the verification processes and would be treated as crowdsourced data. Governmental entities and third parties may also choose to use these data to submit a challenge, provided it meets the requirements for submission of a challenge under the Commission's rules. The Bureau and Offices invite comment on both of these proposals and also on whether stakeholders would benefit from additional guidance regarding when the Commission will consider data from government entities and third parties.

46. The Commission directed OEA and WTB to provide guidance on the types of data that will likely be more probative in validating broadband availability data submitted by mobile service providers in different circumstances. The Bureau and Offices believe that on-the-ground test data that reflects actual on-the-ground tests as opposed to predictive modeling and other techniques will generally be more accurate reflections of user experience and thus more probative than infrastructure or other sources of information in most but not all circumstances. The Bureau and Offices recognize that on-the-ground test data can be more costly to obtain and may not be necessary in every instance, and therefore describe below at least four circumstances where the Bureau and Offices tentatively conclude that infrastructure information will likely be of probative value comparable to on-the-ground data. The Bureau and Offices seek comment on these conclusions and whether there are any other circumstances where the Bureau and Offices can draw such a conclusion. The Bureau and Offices further seek comment on the probative value of potentially less burdensome testing techniques using aerial drones or other technologies for collecting test data.

47. First, the Bureau and Offices propose to find that infrastructure information will be of comparable probative value when extenuating circumstances at the time and location of a given test ( e.g., maintenance or temporary outage at the cell site) caused service to be abnormal. In such cases, the Bureau and Offices propose for providers to submit coverage or footprint data for the site or sectors that were affected and information about the outage, such as bands affected, duration, and whether the outage was reported to the Network Outage Reporting System (NORS), along with a certification about the submission's accuracy. The Bureau and Offices would then remove measurements in the reported footprint in the relevant band(s) made during the outage and, as appropriate, recalculate the statistics.

48. Second, the Bureau and Offices propose to find that infrastructure or other information will be of comparable probative value when measurements that led to the verification request or challenge rely on devices that lack a band that the provider uses to make coverage available in the area in question. In such cases, the Bureau and Offices propose for providers to submit band-specific coverage footprints and information about which specific device(s) lack the band. The Bureau and Offices would then remove measurements from the listed devices in the relevant footprint and recalculate the statistics.

49. Third, the Bureau and Offices propose to find that infrastructure information will be of comparable probative value when speed tests were taken during an uncommon special event ( e.g., a professional sporting event) that increased traffic on the network. The Bureau and Offices recognize that mobile service providers would not have the same throughput they would in normal circumstances given the high volume of traffic on networks during these types of events, so demonstrating the existence of coverage in the area by submitting infrastructure information would be persuasive for why speed tests were negative in such a scenario.

50. Fourth, the Bureau and Offices propose to find that infrastructure information will be of comparable probative value when challenger speed tests were taken during a period where cell loading exceeded the modeled cell loading factor. The Bureau and Offices recognize speed tests taken during a period when cell loading is higher than usual can result in negative speed tests. However, as discussed, the Bureau and Offices anticipate infrastructure information will be useful to rebut challenges in this situation, but if a high number of challenges show persistent over-loading, the Bureau and Offices propose that staff may initiate a verification inquiry to investigate whether mobile providers have submitted coverage maps based on an accurate assumption of cell loading in a particular area, and mobile providers should respond to such a verification request with on-the-ground data in order to assess the experience of users in that area.

51. The Broadband DATA Act requires the Commission to “develop a process through which entities or individuals . . . may submit specific information about the deployment and availability of broadband internet access service . . . on an ongoing basis . . . to verify and supplement information provided by providers.” In the Second Order, the Commission adopted a crowdsourcing process to allow individuals and entities to submit such information.

52. The Commission instructed OET, OEA, WTB, and the Wireline Competition Bureau (WCB) to develop a process to prioritize the consideration of crowdsourced data submitted through data collection apps used by consumers and other entities that are determined to be “highly reliable” and that “have proven methodologies for determining network coverage and network performance.” The Commission further directed OET, OEA, WCB, and WTB to consider “(1) whether the application uses metrics and methods that comply with current Bureau and Office requirements for submitting network coverage and speed data in the ordinary course; (2) whether the speed application has enough users that it produces a dataset to provide statistically significant results for a particular provider in a given area; and (3) whether the application is designed so as not to introduce bias into test results.” The Bureau and Offices propose to find that the Commission's speed test app is a reliable and efficient method for entities to use in submitting crowdsourced mobile coverage data to the Commission. The Commission's speed test app allows users to submit specific information about the deployment and availability of mobile broadband service and meets the requirements outlined in the Commission's Second Order. To the extent that OET, in consultation with OEA and WTB, determines that other apps used by consumers or other entities are “highly reliable” and “have proven methodologies for determining mobile broadband network coverage and network performance,” the Bureau and Offices propose to allow consumers and other entities to use such an app to submit crowdsourced information. The Bureau and Offices also propose to consider as crowdsourced information speed tests taken with an authorized app that do not meet the criteria needed to create a cognizable challenge or are otherwise not intended to be used to challenge the accuracy of a mobile service providers' map.

53. To the extent consumers and governmental or other entities choose to submit on-the-ground crowdsourced mobile speed test data in the online portal, the Bureau and Offices propose that such data be collected using a similar measurement methodology as the Commission's speed test app and submitted in a similar format to that which the Bureau and Offices propose for challengers and providers to use when submitting speed tests. However, because crowdsourced data will not automatically require a response from a provider, and Commission staff will use crowdsourced data for identifying individual instances or patterns of potentially inaccurate or incomplete deployment or availability data that warrants further review and will only initiate an inquiry when a “critical mass of” crowdsourced filings suggest that a provider has submitted inaccurate or incomplete data, the Bureau and Offices propose for some speed test metrics to be optional. For example, the Bureau and Offices propose to allow entities submitting crowdsourced data to submit tests that include any combination of the download speed, upload speed, or round-trip latency test metrics rather than requiring all three as with challenge data. The Bureau and Offices seek comment on their proposal. Should the Bureau and Offices adopt a more or less stringent standard for consumers and other entities to submit crowdsourced data? If so, what metrics and methods should consumers and other entities be required to meet when submitting crowdsourced data? How should the Bureau and Offices ensure that a speed app has enough users to provide statistically significant results for a mobile provider in a specific geographic area? How should the Bureau and Offices ensure apps do not introduce bias into test results?

54. In the Third Order, the Commission directed OET, in consultation with OEA and WTB, to update the FCC Speed Test app as necessary or develop a new speed test app to collect the metrics and include the requisite functionalities so that challengers may use it in the challenge process. The Commission also directed OET to approve additional third-party speed test apps that collect all necessary data and include these required functionalities for use in the challenge process. The Bureau and Offices propose that OET issue a public notice inviting proposals for designation of third-party speed test data collection apps as acceptable for use for submission of crowdsourced and challenge data. In submitting proposals, parties would be required to include information indicating how the app complies with the requirements for crowdsourced data collection and challenge data collection requirements as set forth in applicable Commission orders. OET would provide an opportunity for comments and replies regarding the proposals. OET would then review all of the proposals, comments, and replies, and evaluate the functionalities before designating apps as acceptable for use for submission of crowdsourced and challenge data. The Bureau and Offices also propose that OET would provide periodic review and offer guidance for designated third party apps to ensure continued compliance with all technical and program requirements. The Bureau and Offices seek comment on their proposed process.

55. The Commission found it appropriate to establish and use an online portal for crowdsourced data filings and use the same portal for challenge filings. In adopting this approach, the Commission directed the Bureaus and Offices to implement the crowdsourced data collection and create a portal for the receipt of crowdsourced data. The Commission also directed OET, OEA, WCB, and WTB to “issue specific rules by which [the Commission] will prioritize the consideration of crowdsourced data in advance of the time that the online portal is available.” The Bureau and Offices seek comment on ways to implement this directive. Specifically, the Bureau and Offices ask commenters to recommend methodologies for submitting mobile crowdsourced data prior to the creation of the online portal that are efficient for consumers and other entities, protect consumers' privacy, and are feasible for the Bureaus and Offices to implement. For example, data submitted by consumers and other entities that do not follow any specific metrics or methodologies may be less likely to yield effective analysis and review by the Commission of providers' mobile broadband availability. Therefore, the Bureau and Offices propose to require consumers and other entities to submit any preliminary crowdsourced data using the same metrics that providers would use when submitting on-the-ground data in response to a Commission verification request. Do commenters agree?

56. As discussed in the Second Order, the Commission declined to establish specific thresholds to use when deciding whether to evaluate providers' filings where crowdsourced data suggest potential inaccuracies. Instead, the Commission found that staff should initiate inquiries when a “critical mass of” crowdsourced filings suggest that a provider has submitted inaccurate or incomplete information. The Commission directed OET, OEA, WCB, and WTB to provide guidance to providers when inquiries based on crowdsourced filings could be initiated. Commenters generally agreed that the crowdsourcing process could be used to highlight problems with the coverage maps' accuracy and trigger further review by the Commission. The Bureau and Offices propose to evaluate mobile crowdsourced data through an automated process to identify potential areas that would trigger further review using a methodology similar to the mobile verification process proposed above, with certain simplifications. The Bureau and Offices propose that the outcome of this methodology may provide staff with a credible basis for verifying a provider's coverage data. Under the Bureau and Offices proposed approach, they therefore propose that areas identified from crowdsourced data using this methodology would be subject to verification inquiry consistent with the proposed mobile verification process. The Bureau and Offices seek comment on this proposed framework for evaluating crowdsourced data.

57. More specifically, the methodology the Bureau and Offices propose would first exclude any anomalous or otherwise unusable tests submitted as crowdsourced data, and the Bureau and Offices seek comment generally on how to identify such tests. From the remaining crowdsourced tests, the Bureau and Offices propose to use data clustering to identify potential targeted areas where crowdsourced tests indicate a provider's coverage map is inaccurate. The Bureau and Offices seek comment on their proposal and on any alternative methods for determining when a “critical mass” of crowdsourced filings suggest a provider has submitted inaccurate or incomplete information.

58. In the Second Order, the Commission determined that all information submitted as part of the crowdsourcing process will be made public, with the exception of personally identifiable information and any data required to be confidential under § 0.457 of the Commission's rules, and directed OEA to make crowdsourced data publicly available as soon as practicable after submission and to establish an appropriate method for doing so. Accordingly, the Bureau and Offices propose to make all crowdsourced data available via the Commission's public-facing website. Such information will depict coverage data and other associated information and will not include any personally identifiable information. The Bureau and Offices propose to update the public crowdsourced data biannually. The Bureau and Offices seek comment on their proposals and on any alternative methods for making crowdsourced data available to the public. The Bureau and Offices also seek comment on ways to ensure personally identifiable and other sensitive information is kept secure and private.

59. Finally, the Commission directed OET, OEA, WCB, and WTB to modify the process for the collection of fixed and mobile crowdsourced data over time as determined to be necessary by the Bureaus and Offices. The Bureaus and Offices seek comment on the proposals herein and will modify the process for collecting mobile crowdsourced data in the future as necessary.

60. Supplemental Initial Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Bureau and Offices have prepared this Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) of the possible significant economic impact on a substantial number of small entities by the proposed rules and policies contained in this Public Notice to supplement the Commission's Initial and Final Regulatory Flexibility Analyses completed in the Digital Opportunity Data Collection Report and Order and Further Notice of Proposed Rulemaking, Second Order and Third Further Notice, and Third Order. Written public comments are requested on this Supplemental IRFA. Comments must be identified as responses to the Supplemental IRFA and must be filed by the same deadline for comments specified on the first page of this Public Notice. The Commission will send a copy of this Public Notice, including this Supplemental IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, this Public Notice and Supplemental IRFA (or summaries thereof) will be published in the Federal Register .

61. Need for, and Objectives of, the Proposed Rules. In this Public Notice, WTB, OEA, and OET take the next step to obtain better coverage data and implement the requirements under the Broadband DATA Act which tasks the Commission with collection of granular data from providers on the availability and quality of broadband internet access service and verification of the accuracy and reliability of broadband coverage data submitted by providers. Following the December 27, 2020, Congressional appropriation of funding for the implementation of the Broadband DATA Act, the Commission began to implement challenge, verification, and crowdsourcing processes involving broadband data coverage submissions.

62. The Commission has delegated to its staff the responsibility to develop technical requirements for verifying service providers' coverage data, a challenge process that will enable consumers and other third parties to dispute service providers' coverage data, and a process for third parties and other entities to submit crowdsourced data on mobile broadband availability. These measures will help the Commission, Congress, federal and state policy makers, and consumers to evaluate the status of broadband deployment throughout the United States. The Public Notice proposes and seeks comment on technical requirements to implement the mobile challenge, verification, and crowdsourcing processes required by the Broadband DATA Act, such as metrics for on-the-ground test data and a methodology for determining the threshold for what constitutes a cognizable challenge requiring a provider response. It also provides initial guidance and seeks comment on what types of data will likely be more probative in different circumstances. The Bureau and Offices propose detailed processes and metrics for providers to follow when responding to a Commission verification request, for government entities and other third parties to follow when submitting verified broadband coverage data, and for challengers to follow when contesting providers' broadband coverage availability. The Bureau and Offices believe this level of detail is necessary to allow providers, consumers and other third parties with robust opportunities to comment, provide input and help formulate the processes and procedures to enable better evaluation of the status of broadband deployment throughout the United States.

63. Legal Basis. The proposed action is authorized pursuant to sections 1-5, 201-206, 214, 218-220, 251, 252, 254, 256, 303(r), 332, 403, and 641-646 of the Communications Act of 1934, as amended, 47 U.S.C. 151-155, 201-206, 214, 218-220, 251, 252, 254, 256, 303(r), 332, 403, 641-646.

64. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted. 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.

65. As noted above, Regulatory Flexibility Analyses were incorporated into the Digital Opportunity Data Collection Report and Order and Further Notice of Proposed Rulemaking, Second Order and Third Further Notice, and Third Order. In those analyses, the Bureau and Offices described in detail the small entities that might be affected. In this Public Notice, for the Supplemental IRFA, the Bureau and Offices hereby incorporate by reference the descriptions and estimates of the number of small entities from the previous Regulatory Flexibility Analyses in the Digital Opportunity Data Collection Report and Order and Further Notice of Proposed Rulemaking, Second Order and Third Further Notice, and Third Order.

66. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities. The granular data collection for the challenge and verification processes proposed in the Public Notice would, if adopted, impose some new reporting, recordkeeping, or other compliance requirements on some small entities. Specifically, the Bureau and Offices propose that mobile providers of broadband internet access service submit coverage data in the form of on-the-ground test data or infrastructure information on a case-by-case basis in response to a Commission request to verify mobile broadband providers biannual BDC data submissions. Additionally, the Bureau and Offices propose a methodology for state, local, and Tribal government entities and third parties to follow when submitting verified mobile on-the-ground data to the Commission for use in the coverage maps. The Bureau and Offices also establish a methodology for mobile broadband providers to follow when responding to or rebutting consumer challenges of broadband availability. The Bureau and Offices also seek comment on other types of data that will likely have more probative value when used to either verify coverage maps or respond to a consumer challenge. Finally, the Bureau and Offices propose details and seek comment on how third parties and other entities may submit crowdsourced data and how this information may be put to best use. If adopted, any of these requirements could impose additional reporting, recordkeeping, or other compliance obligations on small entities.

67. The challenge and verification process proposals and issues raised for consideration and comment in the Public Notice may require small entities to hire attorneys, engineers, consultants, or other professionals. At this time, however, the Commission cannot quantify the cost of compliance with any potential rule changes and compliance obligations for small entities that may result from the Public Notice. The Bureau and Offices expect their requests for information on potential burdens, costs and cost minimization and alternative approaches associated with matters raised in the Public Notice will provide them with information to assist with their evaluation of the cost of compliance for small entities of any reporting, recordkeeping, or other compliance requirements the Bureau and Offices adopt.

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

69. The Bureau and Offices anticipate the proposals set forth in the Public Notice will balance the need for the Commission to generate more precise and granular mobile broadband availability maps with any associated costs and burdens on mobile broadband providers. In implementing the requirements of the Broadband DATA Act in orders preceding this Public Notice, the Commission sought comment on the burdens associated with the potential requirements discussed in collecting broadband internet access service data and how such burdens can be minimized for small entities. For example, in the Second Order and Third Further Notice, the Commission sought comment on the potential burdens on small providers associated with: (1) Requiring providers to submit on-the-ground data to validate mobile broadband coverage; and (2) encouraging small providers to participate in the challenge process. In part, the comments received in response to the Second Order and Third Further Notice helped shape the proposals, approaches and steps taken in this Public Notice.

70. Consistent with the Commission's recognition in the Third Order that providers should not be subject to the undue cost of responding to a large number of challenges to very small areas, for the mobile service challenge process, the Bureau and Offices have proposed in this Public Notice to jointly evaluate speed tests submitted by consumers and governmental and third-party challengers. The Bureau and Offices have also proposed data specifications that all submitted challenger speed test data must meet. After combining consumer speed tests and governmental and third-party speed tests, the Bureau and Offices propose to validate each speed test and exclude tests that do not present reliable evidence. Under the Bureau and Offices' proposed approach, they would combine such speed test evidence and apply a single methodology to determine whether the threshold for a cognizable challenge has been met and to establish the boundaries of the challenged area. After determining the full set of combined, valid challenger speed tests, the Bureau and Offices would then associate each speed test with the proposed standardized geographical area discussed in the Public Notice. For each area that includes valid challenger speed tests, the Bureau and Offices would then evaluate whether several thresholds have been met in order to determine whether the challenger evidence demonstrates a cognizable challenge requiring a provider response. Adopting a process to determine whether there is a cognizable challenge to which a provider is required to respond rather than requiring a provider to respond to any and all submitted challenges will minimize the economic impact for small providers to the extent they are subject to challenges.

71. The proposed mobile service challenge process metrics for mobile providers to follow when responding to a Commission verification request seek to balance the need for the Commission to establish valuable methods for verifying coverage data with the need to reduce the costs and burdens associated with requiring mobile providers to submit on-the-ground test data and infrastructure information. For example, in order to ensure the challenge process is user-friendly for challengers and workable for mobile providers to respond to and rebut challenges, the Bureau and Offices have proposed that challenged mobile service providers who choose to submit on-the-ground speed test data will be held to the same standard as the challengers to demonstrate that the challenged areas have sufficient coverage. Providers would be required to submit on-the-ground data consistent with the metrics the Bureau and Offices propose for verifying coverage with on-the-ground data and meet the same three threshold tests as the challengers. The Bureau and Offices considered but declined a proposal to define a challenge area based on the test data submitted by the challengers on their belief that the Bureau and Offices' proposal is both user-friendly and supported by sufficient data while also targeting a more precise geographic area where broadband coverage is disputed and limits the burden on providers in responding to challenges. The Public Notice seeks comment on the specifics of the Bureau and Offices' proposed methodology and invites commenters to propose alternative approaches that would allow for staff to automatically adjudicate most challenges.

72. Our proposals for collection of verification information recognize that some types of test data such as on-the-ground test data can be more costly for small entities and others to obtain and therefore the Bureau and Offices have proposed to identify the portion of a provider's coverage map (target area) for which the Bureau and Offices would require verification data based upon all available evidence, including submitted speed test data, infrastructure data, crowdsourced and other third-party data, as well as staff evaluation and knowledge of submitted coverage data (including maps, link budget parameters, and other credible information). Using all available evidence will enable providers to choose options in line with their specific economic situations. Further, to minimize the cost and burden placed on service providers, while ensuring Commission staff have access to sufficient data to demonstrate coverage, the Bureau and Offices have proposed to use sampling of the target area. Mobile service providers would be required to provide verification data which covers a statistically valid sampling of areas for which sufficient coverage must be demonstrated to satisfy the verification request. The sample would also be required to meet the same thresholds for adequate coverage as defined in the challenge process using either infrastructure data or on-the-ground speed tests for the targeted area to be successfully verified. The proposed use of a sampling plan to demonstrate broadband availability will allow small and other providers to avoid submission of considerably more data and the associated costs.

73. In crafting the challenge and verification process proposals in the Public Notice, the Bureau and Offices also considered the appropriate verification data requirements for government entities and third parties and the probative value of other types of data. To ensure consistency, reliability, comparability, and verifiability of the data the Commission receives the Bureau and Offices declined to propose different or lower standards than those that would be applicable to providers. Requiring government entities and third parties to submit on-the-ground test data using the same metrics and testing parameters proposed for mobile providers will ensure that the Commission implements a standardized process resulting in the broadband availability maps that are as accurate and precise as possible. The Bureau and Offices' consideration of appropriate verification data sources took into consideration both the usefulness and costs of on-the-ground test data which can be more costly to obtain and may not be needed in every situation versus the use of infrastructure information. Based on the Bureau and Offices' analysis they propose to find that infrastructure information will likely be of comparable probative value to on-the-ground test data in situations when cell sites or sectors had a temporary malfunction during measurements, when measurements that led to a verification request or challenge rely on devices that lack a band that the provider uses to make coverage available in the area in question, when speed tests were taken during an uncommon special event ( e.g., a professional sporting event) that increased traffic on the network, or when challenger speed tests were taken during a period where cell loading exceeded the modeled cell loading factor. The Public Notice seeks comment on this proposal, on whether there are any other circumstances where infrastructure data will be greater than, equal to, or comparable to, on-the-ground data, and on whether there are other types of data that will be probative in other circumstances.

74. To assist in the further evaluation of the economic impact on small entities of proposals in this Public Notice, and to identify any additional options and alternatives for such entities that the Commission can pursue while also achieving its objectives of improving accuracy and reliability of its data collections, the Bureau and Offices have sought comment on these matters. Before reaching any final conclusions and taking final action in this proceeding, the Bureau and Offices expect to review the comments filed in response to the Public Notice and more fully consider the economic impact on small entities and how any impact can be minimized.

75. Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules. None.

For the reasons discussed in the preamble, the Federal Communications Commission, under delegated authority, proposes to amend 47 CFR part 1 as follows:

The revisions and additions read as follows:

This is a summary of the Commission's Fifth Further Notice of Proposed Rulemaking, FCC 21-60, released May 24, 2021. This summary is based on the public redacted version of the document, the full text of which can be obtained from the following internet address: https://docs.fcc.gov/public/attachments/FCC-21-60A1.pdf.

1. Unlike virtually everyone else in the United States, incarcerated people have no choice in their telephone service provider. Instead, their only option typically is to use a service provider chosen by the correctional facility, and once chosen, that service provider typically operates on a monopoly basis. Egregiously high rates and charges and associated unreasonable practices for the most basic and essential communications capability—telephone service—impedes incarcerated peoples' ability to stay connected with family and loved ones, clergy, and counsel, and financially burdens incarcerated people and their loved ones. Never have such connections been as vital as they are now, as many correctional facilities have eliminated in-person visitation in response to the COVID-19 pandemic.

2. The Commission adopts a Fifth Further Notice of Proposed Rulemaking (FNPRM) to obtain evidence necessary to make further progress toward accomplishing the critical work that remains. To that end, this document seeks more detailed comments from stakeholders, including but not limited to, about the provision of communications services to incarcerated people with hearing and speech disabilities; the methodology to be employed in setting permanent interstate and international rate caps; general reform of the treatment of site commission payments in connection with interstate and international calls; the adoption of an on-going periodic cost data collection to ensure rates are just and reasonable; and additional reforms to its ancillary service charges rules.

3. The Commission expects today's actions to have immediate meaningful and positive impacts on the ability of incarcerated people and their loved ones to satisfy our universal, basic need to communicate. Although the Commission uses various terminology throughout this item to refer to the intended beneficiaries of the actions herein, unless context specifically indicates otherwise, these beneficiaries are broadly defined as the people placing and receiving inmate calling services (ICS) calls, whether they are incarcerated people, members of their family, or other loved ones and friends. The Commission also may refer to them, generally, as consumers.

4. Access to affordable communications services is critical for everyone in the United States, including incarcerated members of our society. Studies have long shown that incarcerated people who have regular contact with family members are more likely to succeed after release and have lower recidivism rates. Because correctional facilities generally grant exclusive rights to service providers, incarcerated people must purchase service from “locational monopolies” and subsequently face rates far higher than those charged to other Americans.

5. The Communications Act of 1934, as amended (Communications Act or Act) divides regulatory authority over interstate, intrastate, and international communications services between the Commission and the states. Section 2(a) of the Act empowers the Commission to regulate “interstate and foreign communication by wire or radio.” This regulatory authority includes ensuring that “[a]ll charges, practices, classifications, and regulations for and in connection with” interstate or international communications services are “just and reasonable” in accordance with section 201(b) of the Act. Section 201(b) also provides that “[t]he Commission may prescribe such rules and regulations as may be necessary in the public interest to carry out” these provisions.

6. Section 2(b) of the Act preserves states' jurisdiction over “charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service.” The Commission is thus “generally forbidden from entering the field of intrastate communication service, which remains the province of the states.” Stated differently, section 2(b) “erects a presumption against the Commission's assertion of regulatory authority over intrastate communications.”

7. Section 276 of the Act directs the Commission to prescribe regulations that ensure that payphone service providers, including inmate calling services providers, “are fairly compensated for each and every completed intrastate and interstate call using their payphone.” Although the Telecommunications Act of 1996 (1996 Act) amended the Act and “chang[ed] the FCC's authority with respect to some intrastate activities,” with respect to section 276, the U.S. Court of Appeals for the District of Columbia Circuit has held that “the strictures of [section 2(b)] remain in force.” Accordingly, that court concluded that section 276 does not authorize the Commission to determine “just and reasonable” rates for intrastate calls, and that the Commission's authority under that provision to ensure that providers “are fairly compensated” both for intrastate and interstate calls does not extend to establishing rate caps on intrastate services.

8. In 2003, Martha Wright and her fellow petitioners, current and former incarcerated people and their relatives and legal counsel (Wright Petitioners), filed a petition seeking a rulemaking to address “excessive” inmate calling services rates. The petition sought to prohibit exclusive inmate calling services contracts and collect-call-only restrictions in correctional facilities. In 2007, the Wright Petitioners filed an alternative petition for rulemaking in which they emphasized the urgency of the need for Commission action due to “exorbitant” inmate calling services rates. The Wright Petitioners proposed benchmark rates for interstate long distance inmate calling services calls and reiterated their request that providers offer debit calling as an alternative option to collect calling. The Commission sought and received comment on both petitions.

9. In 2012, the Commission commenced an inmate calling services rulemaking proceeding by releasing a document seeking comment on, among other matters, the proposals in the Wright Petitioners' petitions and whether to establish rate caps for interstate inmate calling services calls.

10. In the 2013 ICS Order, in light of record evidence that rates for calling services used by incarcerated people greatly exceeded the reasonable costs of providing those services, the Commission adopted interim interstate rate caps of $0.21 per minute for debit and prepaid calls and $0.25 per minute for collect calls. These interim interstate rate caps were first adopted in 2013 and remain in effect as a result of the vacatur, by the D.C. Circuit, of the permanent rate caps adopted in the 2015 ICS Order. Under the Commission's rules, “Debit Calling” means “a presubscription or comparable service which allows an Inmate, or someone acting on an Inmate's behalf, to fund an account set up [through] a Provider that can be used to pay for Inmate Calling Services calls originated by the Inmate.” “Prepaid Calling” means “a presubscription or comparable service in which a Consumer, other than an Inmate, funds an account set up [through] a Provider of Inmate Calling Services. Funds from the account can then be used to pay for Inmate Calling Services, including calls that originate with an Inmate.” “Collect Calling” means “an arrangement whereby the called party takes affirmative action clearly indicating that it will pay the charges associated with a call originating from an Inmate Telephone.” In the First Mandatory Data Collection, the Commission required all inmate calling services providers to submit data on their underlying costs so that the agency could develop permanent rate caps. In 2014, the Commission sought comment on reforming charges for services ancillary to the provision of inmate calling services and on establishing rate caps for both interstate and intrastate calls. Ancillary service charges are fees that providers assess on calling services used by incarcerated people that are not included in the per-minute rates assessed for individual calls.

11. The Commission adopted a comprehensive framework for interstate and intrastate inmate calling services in the 2015 ICS Order, including limits on ancillary service charges and permanent rate caps for interstate and intrastate inmate calling services calls in light of “egregiously high” rates for inmate calling services calls. Because of continued growth in the number and dollar amount of ancillary service charges that inflated the effective price paid for inmate calling services, the Commission limited permissible ancillary service charges to only five types and capped the charges for each: (1) Fees for Single-Call and Related Services—billing arrangements whereby an incarcerated person's collect calls are billed through a third party on a per-call basis, where the called party does not have an account with the inmate calling services provider or does not want to establish an account; (2) Automated Payment Fees—credit card payment, debit card payment, and bill processing fees, including fees for payments made by interactive voice response, web, or kiosk; (3) Third-Party Financial Transaction Fees—the exact fees, with no markup, that providers of calling services used by incarcerated people are charged by third parties to transfer money or process financial transactions to facilitate a consumer's ability to make account payments via a third party; (4) Live Agent Fees—fees associated with the optional use of a live operator to complete inmate calling services transactions; and (5) Paper Bill/Statement Fees—fees associated with providing customers of inmate calling services an optional paper billing statement. The Commission relied on sections 201(b) and 276 of the Act to adopt rate caps for both interstate and intrastate inmate calling services. The Commission set tiered rate caps of $0.11 per minute for prisons; $0.14 per minute for jails with average daily populations of 1,000 or more; $0.16 per minute for jails with average daily populations of 350 to 999; and $0.22 per minute for jails having average daily populations of less than 350. The Commission calculated these rate caps using industry-wide average costs based on data from the First Mandatory Data Collection and stated that this approach would allow providers to “recover average costs at each and every tier.” The Commission did not include site commission payments in its permanent rate caps, finding these payments were not costs reasonably related to the provision of inmate calling services. The Commission also readopted the interim interstate rate caps it had adopted in 2013, and extended them to intrastate calls, pending the effectiveness of the new rate caps, and sought comment on whether and how to reform rates for international inmate calling services calls. At the same time, the Commission adopted a Second Mandatory Data Collection to identify trends in the market and form the basis for further reform as well as an annual filing obligation requiring providers to report information on their current operations, including their interstate, intrastate, and international rates as well as their ancillary service charges.

12. In the 2016 ICS Reconsideration Order, the Commission reconsidered its decision to entirely exclude site commission payments from its 2015 permanent rate caps. The Commission increased those permanent rate caps to account for claims that certain correctional facility costs reflected in site commission payments are directly and reasonably related to the provision of inmate calling services. The Commission set the revised rate caps at $0.13 per minute for prisons; $0.19 per minute for jails with average daily populations of 1,000 or more; $0.21 per minute for jails with average daily populations of 350 to 999; and $0.31 per minute for jails with average daily populations of less than 350.

13. In January 2014, in response to providers' petitions for review of the 2013 ICS Order, the D.C. Circuit stayed the application of certain portions of the 2013 ICS Order but allowed the Commission's interim rate caps to remain in effect. Later that year, the court held the petitions for review in abeyance while the Commission proceeded to set permanent rates. In March 2016, in response to providers' petitions for review of the 2015 ICS Order, the D.C. Circuit stayed the application of the 2015 ICS Order' s permanent rate caps and ancillary service charge caps for Single Call Services while the appeal was pending. Single-Call Services mean “billing arrangements whereby an Inmate's collect calls are billed through a third party on a per-call basis, where the called party does not have an account with the Provider of Inmate Calling Services or does not want to establish an account.” Later that month, the court stayed the application of the Commission's interim rate caps to intrastate inmate calling services. In November 2016, the D.C. Circuit also stayed the 2016 ICS Reconsideration Order, pending the outcome of the challenge to the 2015 ICS Order.

14. In 2017, in GTL v. FCC, the D.C. Circuit vacated the permanent rate caps adopted in the 2015 ICS Order. First, the panel majority held that the Commission lacked the statutory authority to cap intrastate calling services rates. The court explained that the Commission's authority over intrastate calls is, except as otherwise provided by Congress, limited by section 2(b) of the Act and nothing in section 276 of the Act overcomes this limitation. In particular, section 276 “merely directs the Commission to `ensure that all providers [of calling services to incarcerated people] are fairly compensated' for their inter- and intrastate calls,” and it “is not a `general grant of jurisdiction' over intrastate ratemaking.” The court noted that it “need not decide the precise parameters of the Commission's authority under § 276.”

15. Second, the D.C. Circuit concluded that the “Commission's categorical exclusion of site commissions from the calculus used to set [inmate calling services] rate caps defie[d] reasoned decision making because site commissions obviously are costs of doing business incurred by [inmate calling services] providers.” The court noted that some site commissions were “mandated by state statute,” while others were “required by state correctional institutions” and were thus also a “condition of doing business.” The court directed the Commission to “assess on remand which portions of site commissions might be directly related to the provision of [inmate calling services] and therefore legitimate, and which are not.” The court did not reach the providers' remaining arguments “that the exclusion of site commissions denies [them] fair compensation under [section] 276 and violates the Takings Clause of the Constitution because it forces providers to provide services below cost.” Instead, the court stated that the Commission should address these issues on remand when revisiting the categorical exclusion of site commissions. Judge Pillard dissented from this view, noting that site commissions are not legitimate simply because a state demands them.

16. Third, the D.C. Circuit held that the Commission's use of industry-wide averages in setting rate caps was arbitrary and capricious because it lacked justification in the record and was not supported by reasoned decision making. Judge Pillard also dissented on this point, noting that the Commission has “wide discretion” under section 201 of the Act to decide “which costs to take into account and to use industry-wide averages that do not necessarily compensate `each and every' call.” More specifically, the court found the Commission's use of a weighted average per-minute cost to be “patently unreasonable” given that such an approach made calls with above-average costs unprofitable and thus did “not fulfill the mandate of § 276 that `each and every' ” call be fairly compensated. Additionally, the court found that the 2015 ICS Order “advance[d] an efficiency argument—that the larger providers can become profitable under the rate caps if they operate more efficiently—based on data from the two smallest firms,” which “represent[ed] less than one percent of the industry,” and that the Order did not account for conflicting record data. The court therefore vacated this portion of the 2015 ICS Order.

17. Finally, the court remanded the ancillary service charge caps. The D.C. Circuit held that “the Order's imposition of ancillary fee caps in connection with interstate calls is justified” given the Commission's “plenary authority to regulate interstate rates under § 201(b), including `practices . . . for and in connection with' interstate calls.” The court held that the Commission “had no authority to impose ancillary fee caps with respect to intrastate calls.” Because the court could not “discern from the record whether ancillary fees can be segregated between interstate and intrastate calls,” it remanded the issue so the Commission could determine whether it could segregate ancillary fee caps on interstate calls (which are permissible) and on intrastate calls (which are impermissible). The court also vacated the video visitation annual reporting requirements adopted in the 2015 ICS Order.

18. In December 2017, after it issued the GTL v. FCC opinion, the D.C. Circuit in Securus v. FCC ordered the 2016 ICS Reconsideration Order “summarily vacated insofar as it purports to set rate caps on inmate calling service” because the revised rate caps in that 2016 ICS Reconsideration Order were “premised on the same legal framework and mathematical methodology” rejected by the court in GTL v. FCC. The court remanded “the remaining provisions” of that Order to the Commission “for further consideration . . . in light of the disposition of this case and other related cases.” As a result of the D.C. Circuit's decisions in GTL and Securus, the interim rate caps that the Commission adopted in 2013 ($0.21 per minute for debit/prepaid calls and $0.25 per minute for collect calls) remain in effect for interstate inmate calling services calls.

19. In February 2020, the Wireline Competition Bureau (Bureau or WCB) issued a document seeking to refresh the record on ancillary service charges in light of the D.C. Circuit's remand in GTL v. FCC. This document was published in the Federal Register . In the Ancillary Services Refresh Public Notice, the Bureau sought comment on “whether each permitted [inmate calling services] ancillary service charge may be segregated between interstate and intrastate calls and, if so, how.” The Bureau also sought comment on any steps the Commission should take to ensure, consistent with the D.C. Circuit's opinion, that providers of interstate inmate calling services do not circumvent or frustrate the Commission's ancillary service charge rules. The Bureau also defined jurisdictionally mixed services as “ `[s]ervices that are capable of communications both between intrastate end points and between interstate end points' ” and sought comment on, among other issues, how the Commission should proceed if any permitted ancillary service is “jurisdictionally mixed” and cannot be segregated between interstate and intrastate calls.

20. In August 2020, the Commission responded to the court's remands and took action to comprehensively reform inmate calling services rates and charges. First, the Commission addressed the D.C. Circuit's directive that the Commission consider whether ancillary service charges—separate fees that are not included in the per-minute rates assessed for individual inmate calling services calls—can be segregated into interstate and intrastate components for the purpose of excluding the intrastate components from the reach of the Commission's rules. The Commission found that ancillary service charges generally are jurisdictionally mixed and cannot be practicably segregated between the interstate and intrastate jurisdictions except in the limited number of cases where, at the time a charge is imposed and the consumer accepts the charge, the call to which the service is ancillary is clearly an intrastate call. As a result, the Commission concluded that inmate calling services providers are generally prohibited from imposing any ancillary service charges other than those permitted by the Commission's rules, and providers are generally prohibited from imposing charges in excess of the Commission's applicable ancillary service fee caps.

21. Second, the Commission proposed rate reform of the inmate calling services within its jurisdiction. As a result of the D.C. Circuit's decisions, the interim interstate rate caps of $0.21 per minute for debit and prepaid calls and $0.25 per minute for collect calls that the Commission adopted in 2013 remain in effect today. Commission staff performed extensive analyses of the data it collected in the Second Mandatory Data Collection as well as the data in the April 1, 2020, annual reports. In the 2015 ICS Order, the Commission directed that the Second Mandatory Data Collection be conducted “two years from publication of Office of Management and Budget (OMB) approval of the information collection.” The Commission received OMB approval in January 2017, and Federal Register publication occurred on March 1, 2017. Accordingly, on March 1, 2019, inmate calling services providers submitted their responses to the Second Mandatory Data Collection. WCB and the Office of Economics and Analytics (OEA) undertook a comprehensive analysis of the Second Mandatory Data Collection responses, and conducted multiple follow-up discussions with providers to supplement and clarify their responses, in order to conduct the data analysis upon which the proposals in the August 2020 document are based. Based on that analysis, the Commission proposed to lower the interstate rate caps to $0.14 per minute for debit, prepaid, and collect calls from prisons and $0.16 per minute for debit, prepaid, and collect calls from jails. In so doing, the Commission used a methodology that addresses the flaws underlying the Commission's 2015 and 2016 rate caps (which used industry-wide averages to set rate caps) and that is consistent with the mandate in section 276 of the Act that inmate calling services providers be fairly compensated for each and every completed interstate call. The Commission's methodology included a proposed 10% reduction in GTL's costs to account, in part, for seemingly substantially overstated costs. The Commission also proposed to adopt a waiver process that would permit providers to seek waivers of the proposed rate caps on a facility-by-facility or contract basis if the rate caps would prevent a provider from recovering the costs of providing interstate inmate calling services at a facility or facilities covered by a contract. The Commission also proposed “to adopt a rate cap formula for international inmate calling services calls that permits a provider to charge a rate up to the sum of the inmate calling services provider's per-minute interstate rate cap for that correctional facility plus the amount that the provider must pay its underlying international service provider for that call on a per-minute basis (without a markup).” The Commission explained that this cap “would enable inmate calling services providers to account for widely varying costs,” be consistent with the “just and reasonable' standard in section 201(b) of the Act, and comport with the “fair compensation” provision of section 276 of the Act.

22. In response to the 2020 ICS document, the Commission received over 90 comments and reply comments and 9 economic studies. Filers included providers of calling services to incarcerated people, public interest groups and advocates for the incarcerated, telecommunications companies, organizations representing individuals who are deaf or hard of hearing, and providers of telecommunications relay service.

23. Intrastate Rate Reform Efforts. By April 1 of each year, inmate calling services providers file annual reports with the Commission that include rates, ancillary service charges, and site commissions. In an effort to compare interstate inmate calling services rate levels with intrastate rate levels, Commission staff analyzed the intrastate rate data submitted as part of the providers' April 1, 2020, annual reports. Commission staff's review revealed that intrastate rates for debit or prepaid calls exceed interstate rates in 45 states, with 33 states allowing rates that are at least double the Commission's interstate cap and 27 states allowing “first-minute” charges that can be more than 25 times that of the first minute of an interstate call. For example, one provider reported a first-minute intrastate rate of $5.34 and additional per-minute intrastate rates of $1.39 while reporting the per-minute interstate rate of $0.21 for the same correctional facility. Similarly, another provider reported a first-minute intrastate rate of $6.50 and an additional per-minute intrastate rate of $1.25 while reporting the per-minute interstate rate of $0.25 for the same correctional facility. Further, Commission staff identified instances in which a 15-minute intrastate debit or prepaid call costs as much as $24.80—almost seven times more than the maximum $3.15 that an interstate call of the same duration would cost.

24. In light of these data, in September 2020, former Chairman Pai and Brandon Presley, then president of the National Association of Regulatory Utility Commissioners (NARUC), jointly sent a letter to the co-chairs of the National Governors Association urging state governments to take action to reduce intrastate rates and related fees. At least one state has enacted a law to reduce intrastate inmate calling services rates and fees, at least one state commenced a regulatory proceeding aimed at reducing intrastate inmate calling services rates and fees, and several states are considering legislation.

25. In this document the Commission seeks further evidence and comments from stakeholders to consider additional reforms to inmate calling services rates, services, and practices within its jurisdiction, including permanent rate caps. To that end, the Commission seeks comment on the provision of functionally equivalent communications services to incarcerated people with hearing and speech disabilities, the methodology for establishing permanent rate caps, further reforms to the treatment of site commission payments, including at jails with average daily populations less than 1,000, and revisions to its ancillary service charge rules, among other matters.

26. While there are barriers to telecommunications access for incarcerated people, the obstacles are much larger for those who are deaf, hard of hearing, or deafblind, or who have a speech disability. The Commission refers to this class of people generally as incarcerated people with communication disabilities. Because functionally equivalent means of communication with the outside world are often unavailable to incarcerated people with communication disabilities, they are effectively trapped in a “prison within a prison.” The ability to make telephone calls is not just important to maintain familial and intimate relationships necessary for successful rehabilitation, but also crucial to allow for communication with legal representatives and medical professionals.

27. The Commission first sought comment in 2012 on access to inmate calling services for incarcerated people with communication disabilities. In 2015, the Commission affirmed the obligation of inmate calling services providers, as common carriers, to provide incarcerated people access to “mandatory” forms of TRS—TTY-based TRS and speech-to-speech relay service (STS). TTY-based TRS allows an individual with a communication disability to communicate by telephone with another party, such as a hearing individual, by using a text telephone (TTY) device to send text to a communications assistant (CA) over a circuit-switched telephone network. To connect a hearing individual as the other party to the call, the CA establishes a separate voice service link with the hearing party and converts the TTY user's text to speech. The CA listens to the hearing party's voice response and converts that speech to text for the TTY user. STS “allows individuals with speech disabilities to communicate with voice telephone users through the use of specially trained CAs who understand the speech patterns of persons with speech disabilities and can repeat the words spoken by that person.” The Commission also amended its rules to prohibit inmate calling services providers from levying or collecting any charge for TRS calls. For TTY-to-TTY calls, which require substantially longer time than voice calls, the Commission limited permissible charges to 25% of the applicable per-minute voice rate.

28. The Commission recognized in the 2015 ICS Order that other, more advanced forms of TRS, many of which use the internet, had been developed and recognized as eligible for TRS Fund support. For example, video relay service (VRS) makes use of video communications technology to allow individuals whose primary language is American Sign Language (ASL) to communicate in ASL. VRS is a form of TRS that “allows people with hearing and speech disabilities who use sign language to communicate with voice telephone users through video equipment. The video link allows the [communication assistant] to view and interpret the party's signed conversation and relay the conversation back and forth with a voice caller.” internet Protocol Captioned Telephone Service (IP CTS) and its non-internet counterpart, Captioned Telephone Service (CTS), allow a person who is hard of hearing to participate in direct voice communications while receiving captions of the other party's voice—thereby eliminating much of the delay inherent in more traditional forms of TRS. IP CTS is a form of TRS “that permits an individual who can speak but who has difficulty hearing over the telephone to use a telephone and an internet Protocol-enabled device via the internet to simultaneously listen to the other party and read captions of what the other party is saying.” And IP Relay enhances traditional text-based relay by making use of the faster transmission speeds offered by the internet. Today, among people with communication disabilities, there is far more demand for these forms of TRS than for TTY-based TRS and STS. In its annual TRS usage projections for TRS Fund Year 2020-21, the TRS Fund administrator projected that interstate usage of TTY-based TRS from July 2020 through April 2021 would total 1,361,038 minutes, and interstate usage of STS for the same period would be 141,313 minutes. Taking account of likely intrastate usage, total usage of TTY-based TRS in this period will not exceed 6 million minutes, and total usage of STS will not exceed 500,000 minutes. Although these statistics are for calendar year 2019, an earlier period, TTY-based TRS usage has been declining over time, and STS usage has not increased significantly in recent years. Therefore, the corresponding intrastate usage statistics for TRS Fund Year 2020-21 are likely to be lower (in the case of TTY-based TRS) or not substantially higher (in the case of STS) than these totals. By contrast, projected usage of VRS for the same period is 140,575,160 minutes (about 23 times the usage of TTY-based TRS) and projected usage of IP CTS is 542,340,606 minutes (about 90 times the usage of TTY-based TRS).

29. The Commission also “agree[d] with commenters that limiting all inmates with communication disabilities to one form of TRS, particularly what many view as an outdated form of TRS that relies on TTY usage, may result in communication that is not functionally equivalent to the ability of a hearing individual to communicate by telephone.” However, noting that the newer forms of TRS (other than STS) are not “mandatory” for common carriers to provide, the Commission declined to require calling service providers to make them available. Instead, it “strongly encourage[d] correctional facilities to work with [inmate calling services] providers to offer these other forms of TRS,” and to “comply with obligations that may exist under other federal laws, including Title II of the ADA, which require the provision of services to inmates with disabilities that are as effective as those provided to other inmates.” The Commission stated it would “monitor the implementation and access to TRS in correctional institutions and may take additional action if inmates with communications disabilities continue to lack access to functionally equivalent service.”

30. In 2015, the Commission sought comment on the accessibility implications of the increasing availability to incarcerated people of video calling and video visitation services. Recognizing that video calling could enable incarcerated sign language users to access and use VRS, as well as communicate directly with other sign language users, the Commission sought comment on the bandwidths and broadband speeds currently used for video visitation, the interoperability of video visitation systems with VRS, the prevalence of VRS access in correctional institutions, and the steps that should be taken to ensure that charges for video calling services offered to deaf incarcerated people are just and reasonable. In 2020, the Commission sought comment more broadly on the needs of incarcerated people with communication disabilities, including whether they have adequate access to TRS, whether additional forms of TRS should be made available by inmate calling services providers, and what the Commission can do to facilitate such access. In response to the 2015 and 2020 ICS documents, the Commission has received information describing the lack of functionally equivalent access to telecommunications services for incarcerated people with communication disabilities. The Commission has also received several individual comments urging it to require more access to communications in correctional facilities and sharing personal experiences with disability access to telecommunications in correctional facilities. As a result of these limitations, the Accessibility Coalition asserts, many incarcerated people with communication disabilities have been unable to stay in contact with their loved ones.

31. In light of the comments filed in response to the 2020 ICS document, as well as other evidence, the Commission proposes to amend the Commission's rules to require that inmate calling services providers provide access, wherever feasible, to all forms of TRS that are eligible for TRS Fund support—including (in addition to TTY-based TRS and STS) CTS (a non-internet-based telephone captioning service) and the three forms of internet-based TRS: VRS, IP CTS, and IP Relay. In proposing that inmate calling services providers offer access to all forms of TRS, the Commission does not contemplate that providers would necessarily provide TRS directly. They would only need to ensure that incarcerated people with hearing and speech disabilities can be connected to an existing, authorized provider of the appropriate form of TRS.

32. As the Commission has recognized, “functional equivalence” is an evolving standard for the level of communications access that TRS must provide. “Functional equivalence is, by nature, a continuing goal that requires periodic reassessment. The ever-increasing availability of new services and the development of new technologies continually challenge us to determine what specific services and performance standards are necessary to ensure that TRS is functionally equivalent to voice telephone service.” The current record confirms the Commission's initial assessment in the 2015 ICS Order that TTY-based TRS and STS may be insufficient by themselves to ensure functionally equivalent communication for people with communication disabilities. As explained above, among the general population of people with communication disabilities, TTY-based TRS and STS are currently the least frequently used forms of relay service. TTY-based TRS is little used today because it is based on an obsolete technology, which is very slow and cumbersome compared with current internet technology. Further, given the availability of VRS, limiting sign-language users to TTY-based TRS unnecessarily precludes them from communicating in their primary language. Similarly, for individuals who are hard of hearing, captioned telephone services such as CTS and IP CTS frequently provide far more efficient and effective means of communication than TTY-based TRS. Further, current transitions to modern IP-based networks have adversely affected the quality and utility of TTY-based communication. In the 2016 RTT Order, the Commission recognized the limitations of TTY technology in an IP environment, and adopted rules to facilitate a transition from TTY technology to real-time text (RTT) as a reliable and interoperable universal text solution over wireless IP-enabled networks for people who are deaf, hard of hearing, deafblind, or have a speech disability.

33. Although the Commission has not mandated the provision of the more advanced forms of TRS by state TRS programs or common carriers, their “non-mandatory” status does not reflect a lower level of need for these forms of TRS. These forms of TRS are “non-mandatory” only in the limited sense that the Commission does not require that they be included in the offerings of Commission-certified state TRS programs (and, in the event that a state does not have a certified TRS program, does not require common carriers in that state to make their own arrangements to provide such relay services). Instead, internet-based TRS are made available by TRS providers operating on a nationwide basis and certified by the Commission. However, support for all forms of TRS is mandatory for all carriers and VoIP service providers, which must support the provision of these services through mandatory contributions to the TRS Fund. As noted above, among the general population of people with communication disabilities, there is far more demand for “non-mandatory” than “mandatory” relay services. Further, the comments submitted in response to the 2015 and 2020 ICS documents persuade us that access to commonly used, widely available relay services such as VRS and IP CTS is equally or more important for incarcerated people with communication disabilities than it is for the general population. Further, incarcerated people—unlike the general population—have no ability to connect to a suitable form of TRS on their own. Therefore, to fulfill the statutory TRS mandate with respect to this subset of people with communication disabilities, it appears to be incumbent on the Commission to take additional steps in this proceeding to ensure that they can access those relay services needed for functionally equivalent communication, regardless of the “mandatory” or “non-mandatory” status of such services as provided in other contexts. The Commission seeks comment on this analysis.

34. Legal Authority. As a threshold matter, the Commission seeks comment on the extent of its statutory authority to require inmate calling services providers to provide access to TRS. Section 225 of the Act directs the Commission to “ensure that interstate and intrastate telecommunications relay services are available, to the extent possible and in the most efficient manner, to [individuals with communications disabilities] in the United States,” and incarcerated people are not excluded from this mandate. To this end, section 225 expressly provides the Commission with authority over common carriers providing intrastate as well as interstate communications services, including the authority to require carriers to provide access to TRS “to the extent possible.” Section 225 also expressly requires common carriers to “provide in compliance with the regulations prescribed under this section, throughout the area in which it offers service, telecommunications relay services, individually, through designees, through a competitively selected vendor, or in concert with other carriers.” Does section 225 authorize the Commission to require that inmate calling services providers provide access to appropriate forms of TRS, as well as to regulate the manner in which such access is provided?

35. As alternative sources of authority, section 255 of the Act requires providers of telecommunications services to ensure that their services are “accessible to and usable by individuals with disabilities `if readily achievable.'” Similarly, section 716 of the Act requires providers of advanced communications services (including VoIP services) to ensure that such services are accessible to and usable by individuals with disabilities “unless [these requirements] are not achievable,” prohibits such providers from installing “network features, functions, or capabilities that impede accessibility or usability,” and authorizes the Commission to adopt implementing regulations. The Commission seeks comment on the extent to which, independently of section 225, these provisions authorize the Commission to require inmate calling services providers to provide access to appropriate forms of TRS.

36. As noted earlier in the accompanying Report and Order, correctional authorities “exercise near total control over how incarcerated people are able to communicate with the outside world.” In general, the Communications Act does not provide us with authority to regulate the actions of correctional authorities (except to the extent that they also act as communications service providers or other entities subject to its authority). As a practical matter, therefore, its ability to compel an inmate calling services provider to make additional forms of TRS available in a particular facility may depend, for example, on whether the correctional institution agrees—or is required by other applicable law—to make suitable communications devices and network access available to incarcerated people with disabilities, or to permit a service provider to do so. The Commission seeks comment on the extent to which Title II of the ADA or other federal or state laws require such access. Access to telecommunications for incarcerated people with disabilities may also involve issues of constitutional rights. The Commission also stresses that, although the obligations of inmate calling service providers under any rules the Commission adopts may be limited to measures that are “feasible” in the circumstances of a particular correctional facility, the Commission does not propose to preempt other requirements under state or federal law, whether applicable to service providers or correctional authorities, which may expand the scope of access to TRS that would otherwise be deemed “possible” under section 225.

37. Benefits and Costs. To supplement the current record, the Commission seeks further comment on the benefits and costs of requiring that providers of inmate calling services provide access to all authorized forms of TRS. First, to establish a baseline, the Commission seeks additional, specific information on the extent to which VRS, IP Relay, IP CTS, and CTS are currently being made available in correctional facilities. According to comments on the 2020 ICS document, VRS and IP CTS already have been made available in some correctional facilities. ZP Better Together, LLC, a certified VRS provider, notes that a number of state facilities that allow video visitations also have added VRS and point-to-point video communications for those with accessibility needs. Where available, how are internet-based relay services and CTS provided? Do correctional facilities make arrangements directly with TRS Fund-supported TRS providers to provide these services, or are they accessed through an inmate calling services provider? What kinds of devices are used to access these forms of TRS, and how and by which entities are they provided? Similarly, how is broadband internet access provided to the facility—by arrangement with an inmate calling services provider or some other entity? Where access to additional forms of TRS has been made available, what operational or other challenges were encountered, and how were they addressed?

38. Second, the Commission seeks additional comment on the benefits of making VRS, IP CTS, IP Relay, and CTS available in correctional facilities where they are not currently available. As noted above, the record to date strongly suggests that TTY-based TRS and STS, by themselves, are insufficient to ensure that incarcerated people with communications disabilities have access to functionally equivalent communications. The Commission seeks additional, specific information on how and to what extent each of the other TRS-Fund supported relay services would enhance communications for incarcerated people with communications disabilities. Where available, what specific benefits do these services offer that TTY-based TRS and STS cannot? What communications limitations of TTY-based TRS and STS would be remedied by providing modern relay services? For example, how would access to additional forms of TRS improve communications access for incarcerated people who are deafblind? Should each of these relay services—VRS, IP CTS, IP Relay, and CTS—be available, or would a combination of some of them collectively provide adequate access to telecommunications for incarcerated people with communication disabilities? Would the provision of modern relay services also benefit the people that incarcerated people with communication disabilities want to call?

39. As part of its assessment of the potential benefits of making other forms of TRS available, the Commission also seeks comment on the extent to which, as a practical matter, TTY-based TRS is actually available and usable in correctional facilities. To what extent is access to TTY-based TRS subject to more restrictions ( e.g., physical access, limited hours, dependence on correctional staff) than telephone access? For example, to what extent are TTY devices incorporated into the telephones used by the general incarcerated population, or are TTY devices available only upon request? The Commission also seeks comment on the extent to which the TTYs available at correctional facilities are actually functional and capable of making calls. Are TTYs adequately maintained? Further, in light of the incompatibilities between TTYs and IP networks, the Commission seeks comment on the extent to which correctional facilities have upgraded to IP-enabled voice service. For those that have upgraded, how do correctional facilities ensure that incarcerated people with communication disabilities are able to use TTYs successfully? Do incarcerated people with disabilities wishing to use TTY-based TRS encounter difficulties navigating inmate calling services ( e.g., accessing the system to complete steps required to make an outgoing call)? What kinds of difficulties are encountered by individuals eligible to use STS? To what extent could such difficulties in using TTY-based TRS and STS be overcome by providing access to other forms of TRS?

40. Third, what security or other issues do inmate calling services providers and correctional facilities face that could be affected by the provision of VRS, IP CTS, IP Relay, and CTS, and how could such issues be effectively addressed? The Commission has recognized that security is a significant concern for inmate calling services generally. However, service providers and correctional facilities have developed methods for effectively monitoring, recording, and administering inmate calls, and some commenters have stated that these solutions are applicable or adaptable to the TRS context. Is there evidence that security issues are more challenging for TRS than for inmate calling services in general, and if so, why? What specific security issues are raised by incarcerated people's access to TRS? Are there specific concerns with respect to VRS, given its use of video? How have security concerns been addressed with respect to TTY-based TRS and STS, and in facilities where VRS is currently available? What measures are available to address such security concerns with respect to other forms of TRS?

41. Fourth, what additional costs would be incurred—and by which entities—in providing access to VRS, IP CTS, IP Relay, and CTS, respectively, for incarcerated people? For example, would inmate calling services providers or other entities incur costs associated with upgrading or modifying existing technology configurations, operations, or associated network infrastructure? To what extent would additional broadband services be needed for transmission and completion of TRS calls, what costs would be involved, and which entity would incur such costs—the correctional institution or the inmate calling services provider? To what extent would additional costs be incurred by TRS providers to provide relay services in correctional facilities? Would it be necessary to provide training to correctional facilities personnel regarding modern TRS, and which entity would incur such costs? To what extent would additional costs be incurred, and by which entity, in ensuring that the provision of VRS, IP CTS, IP Relay, and CTS is secure? The Commission seeks detailed estimates of the costs described above and how they would be incurred—including discussion of the actual costs incurred in those instances where access to some of these forms of TRS is already being provided.

42. The Commission also seeks comment on how the various costs attributable to the provision of TRS access should be recovered. Which, if any, of the additional costs that may be incurred by TRS providers should be treated as eligible for TRS Fund support? To the extent that costs are incurred by inmate calling services providers, to what extent should they be recoverable in generally applicable inmate calling services charges that are subject to Commission regulation? As discussed below, the Communications Act restricts the extent to which parties to a TRS call may be charged for TRS access.

43. Feasibility, TRS Equipment, and internet Access. As noted above, its proposed expansion of inmate calling services providers' obligations to provide access to TRS is necessarily conditional on the extent to which associated communications capabilities, such as internet access and suitable user devices, can be made available in a particular correctional facility. The Commission cannot compel providers to provide access to all forms of TRS in those facilities where it is not feasible to do so. The Commission seeks comment on how to determine feasibility in this context and how potential limitations on the availability of internet service and user devices could be addressed and overcome. In order to access relay services, certain hardware is necessary. The Commission notes that people who are deafblind may need devices that have refreshable Braille output or text enlarging capabilities. To access TTY-based relay, a TTY is necessary. For CTS, a telephone with a display suitable for captioning, and compatible with the applicable state-program captioning service, is required. For internet-based forms of TRS, broadband internet access is required, as well as appropriate devices. Various devices may be used for IP CTS, such as a caption-displaying telephone compatible with an IP CTS provider's service, a personal computer, a laptop, a tablet, or a smartphone. IP Relay, similarly, may be accessed using a personal computer, a laptop, a tablet, or a smartphone. Finally, VRS requires a device with a screen and a video camera, such as a standalone videophone, a personal computer, a laptop, a tablet, or a smartphone. Internet-based services (IP Relay, IP CTS, and VRS) also require certain software that is available from TRS providers. With respect to VRS, the Commission requires that any user devices and associated software distributed by a VRS provider must be interoperable and usable with all VRS providers' services.

44. As a threshold matter, the Commission seeks comment on the extent to which broadband internet access, as well as the various user devices described above, are currently made available in correctional facilities for use by incarcerated people. To what extent are broadband internet access services currently available for use by incarcerated people, and could such services be used to support access to internet-based TRS? For example, the record indicates that remote video visitation, where available, is often provided by an inmate calling service provider. Where an inmate calling service provider or affiliated company is providing video visitation using broadband internet access, is it feasible for the provider to also use such broadband service to provide access to VRS or other forms of internet-based TRS? To what extent are off-the-shelf user devices suitable for internet access, such as personal computers, laptops, tablets, smartphones, or specialized videophones, available to incarcerated people? For VRS, to what extent are video-capable versions of such devices available? To what extent do correctional facilities place restrictions on people with disabilities' access to the internet and internet-capable devices ( e.g., physical access, limited hours, dependence on correctional staff) that are not imposed on the use of telephones by hearing people? The Commission also seeks comment on any security issues specific to certain types of equipment that may be used to access TRS. Are such security issues more easily or effectively addressed with certain kinds of video-capable user devices than with others?

45. To what extent is the provision of broadband internet access or TRS-compatible user devices (other than TTYs) by a correctional facility required by the ADA or other laws? Federal prisons and other facilities receiving federal funds are subject to section 504 of the Rehabilitation Act of 1973 and implementing regulations. State and local correctional facilities are subject to Title II of the ADA, 42 U.S.C. 12131 et seq., and implementing regulations adopted by the Department of Justice. For example, public entities must “furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.” Such “auxiliary aids and services” include “qualified interpreters on-site or through video remote interpreting (VRI) services; . . . real-time computer-aided transcription services; . . . telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing.” The Commission invites parties to comment on the extent to which this or other applicable ADA regulations mandate the availability to incarcerated people of appropriate equipment for accessing TRS. To the extent that such access services and devices are not otherwise available, should the Commission require inmate calling services providers to provide internet access service or user devices? The Commission also notes that TRS providers frequently distribute suitable user devices to TRS users, although its rules do not permit recovery of device-related costs from the TRS Fund. Should the Commission make TRS Fund support available for the provision of these items by a certified TRS provider to an incarcerated person, as an exception to the cost-recovery prohibition? The Commission seeks comment on the merits, costs, and benefits of these alternatives, and whether the Commission has statutory authority to adopt each of them.

46. To what extent do these feasibility issues implicate the agreements between calling service providers and correctional facilities, and how should the Commission treat such contractual issues in defining providers' obligations? For example, an inmate calling services provider may claim that access to a particular form of TRS is infeasible at a particular facility because the correctional authority has withheld permission for incarcerated people to use that form of TRS—or has withheld permission for the inmate calling services provider or TRS provider to provide internet access or suitable user devices. How should the Commission evaluate such possible defenses? For example, should the Commission require the inmate calling services provider to provide written evidence that the necessary permissions were withheld? Should the Commission require providers to make a good faith effort to secure necessary permissions, and how should a sufficient effort be defined? Should the Commission require the provider to show that it assured the correctional authority of its willingness to abide by reasonable use limitations and security restrictions? If there is sufficient evidence of infeasibility of access to some form of TRS due to the policy of the correctional authority, are there any steps that the Commission could take to encourage the facility to alter its practice? The Commission invites commenters to discuss the Commission's legal authority for any measures advocated in this regard.

47. The Commission seeks comment on whether any modifications of its existing TRS rules may be appropriate in conjunction with expanded TRS access for incarcerated people. In general, the rules governing internet-based forms of TRS are more complex than those applicable to TTY-based TRS. For example, to prevent waste, fraud, and abuse and allow the collection of data on TRS usage, its rules require that people using VRS, IP Relay, or IP CTS be registered with a TRS provider and that such providers submit information on users registered for VRS and IP CTS to a central User Registration Database (User Database). The VRS provider must “obtain a written certification from the individual responsible for the videophone, attesting that the individual understands the functions of the videophone[,] that the cost of VRS calls made on the videophone is financed by the federally regulated Interstate TRS Fund,” and that the institution “will make reasonable efforts to ensure that only persons with a hearing or speech disability are permitted to use the phone for VRS.” In addition, the VRS provider must collect and submit to the User Database the following information: (1) The VRS provider's name; (2) the telephone number assigned to the videophone; (3) the name and physical address of the institution (and the Registered Location of the phone, if different from the physical address); (4) the type of location where the videophone is placed within the institution; (5) the date of initiation of service to the videophone; (6) the name of the individual responsible for the videophone, confirmation that the provider has obtained the certification described above, and the date the certification was obtained; and (7) whether the device is assigned to a hearing individual who knows sign language. VRS providers, however, may register videophones maintained by businesses, organizations, government agencies, or other entities and designated for use in private or restricted areas as “enterprise videophones.” In lieu of individual registration, should the Commission also permit such enterprise device registration for equipment used by incarcerated people to access IP Relay and IP CTS? Should the information and documents collected by TRS providers for purposes of such enterprise or individual user registration be the same, or different from, the information and documents currently required by its rules? Are additional safeguards necessary for the provision of certain relay services in the inmate calling services context, to prevent waste, fraud, and abuse? What steps should be taken to ensure that compliance with user registration rules or other TRS rules does not create a significant delay for telecommunication access for incarcerated people with disabilities?

48. Should incarcerated people be able to select the TRS provider they wish to use, or should the TRS provider be selected by the inmate calling services provider serving a facility (or by the facility itself)? Should a TRS provider be required to identify inmate calling services calls in their claims for TRS Fund compensation, or to submit additional or different information to the TRS Fund administrator regarding TRS calls involving incarcerated people? To assist the Commission in evaluating the level of service incarcerated people are receiving, and the effectiveness and efficiency of such service, should the Commission require TRS providers to report annually on the provision of TRS to incarcerated people? What kinds of information should be included in such reports— e.g., identification of the correctional facilities served, the number and type of devices provided at each facility, and the number of minutes handled per facility?

49. Are any changes in the Commission's TRS confidentiality rules necessary to address the security concerns of correctional facilities? For example, section 64.604(a) states:

This rule, which the Commission has recognized as fundamental to ensuring that TRS is “functionally equivalent” to voice communications and maintaining the trust of TRS users in the TRS program, applies to TRS providers and their CAs but does not expressly impose obligations on other parties, such as an inmate calling services provider that does not employ CAs and is only providing a communications link to an authorized TRS provider. The Commission tentatively concludes that the existing rule does not prohibit an inmate calling services provider or correctional facility from monitoring the transmissions sent and received between an incarcerated person and the TRS provider's CA, in the same way as they monitor other inmate calls, provided that the TRS provider and CA are not directly facilitating such monitoring. The Commission seeks comment on this tentative conclusion. The Commission also seeks comment on whether such monitoring that does not require affirmative steps by the TRS provider or CA is sufficient to ensure that a facility's security needs are protected as effectively as for other inmate calls. The Commission notes that, by monitoring transmissions to and from the incarcerated user's device, without involving the TRS provider, the inmate calling services provider or facility would have access to the entire content of the incarcerated person's conversation with the other party to the call. That is, the inmate calling services provider or facility could monitor the incarcerated person's communication directly, and could monitor the speech of the other party as conveyed in text or ASL video by the TRS CA. To the extent that monitoring permitted by the current rule is insufficient to protect institutional security, the Commission seeks comment on whether there are ways to narrowly address such security needs in order to avoid eroding the legitimate privacy interests of TRS users.

50. The Commission seeks comment on whether any other modifications to its TRS rules are necessary to address the special circumstances that characterize inmate calling services. For example, what, if any, changes are needed in the TRS rules governing the types of calls TRS providers must handle (47 CFR 64.604(a)(3)), the TRS Numbering Directory (47 CFR 64.613, 64.615(a)(1)-(2)), change of default TRS provider (47 CFR 64.630-64.636), and TRS customer proprietary network information (47 CFR 64.5101-64.5111)? In the inmate calling services context, should any of the rules under part 64, subpart F, that currently apply to TRS providers be applicable to inmate calling services providers as well—and if so, which rules?

51. Prohibition of Provider Charges for TTY-Based TRS Calls. In 2015, the Commission amended its rules to state that “No [inmate calling services] Provider shall levy or collect any charge or fee for TRS-to-voice or voice-to-TTY calls.” Notwithstanding this rule, some commenters allege that some calling service providers are imposing fees on the receiving end of TTY-based TRS calls placed by incarcerated people. In addition, at least one commenter suggests that incarcerated people with disabilities may be subject to charges for using or accessing the TTY or telephone devices needed to make TRS calls. To prevent circumvention of the rule, advocates and VRS providers have requested that the Commission clarify that it does not allow either party to be charged for a TRS call, or for access to equipment when used to place or receive a TRS call. The Commission seeks additional comment and information on whether, and to what extent, such practices have continued after section 64.6040(b) of the rules became effective, and by which entities—inmate calling services providers or correctional institutions—such charges are being imposed.

52. The Commission notes that, by its terms, section 64.6040(b) prohibits any charge for TRS calling, regardless of the person on whom such a charge might be assessed, or whether such a charge is formally applied to the service itself or to a device used to access the service. Prior to the adoption of section 64.6040, other provisions of the rules might have been read to suggest that inmate calling services providers were free to charge the called party for TRS calls. Specifically, in the payphone provisions of the rules, adopted more than 20 years ago, section 64.1330(b) states that “[e]ach state must ensure that access to dialtone, emergency calls, and telecommunications relay service calls for the hearing disabled is available from all payphones at no charge to the caller. ” However, the Commission sees no basis for inferring that the Commission, in adopting section 64.6040, intended an unstated qualification that similarly limits its application to the assessment of charges on the initiator of a call. In any event, the proposed amendment would put to rest any conceivable doubt that inmate calling services providers are prohibited from charging other parties to a TRS call. Nonetheless, to more effectively deter the charging practices described above, the Commission proposes to amend the rule to expressly prohibit inmate calling services providers from levying or collecting any charge on any party to a TRS call subject to this rule, regardless of whether the party is the caller or the recipient and whether the party is an incarcerated person or is communicating with such individual, and regardless of whether the charge is formally assessed on the service itself or on the use of a device needed to make the call. The Commission seeks comment on this proposal, including its costs and benefits. The Commission also seeks comment on its legal authority in this regard, including section 225 of the Act, which the Commission relied upon in the 2013 ICS Order, as well as the interplay with section 276 of the Act.

53. Provider Charges for Other Forms of TRS. In light of its proposal above to expand the kinds of relay services that incarcerated people are able to access, the Commission also proposes to amend section 64.6040 to prohibit inmate calling service providers from charging for other forms of TRS to which an inmate calling services provider provides access. The Commission seeks comment on the costs, benefits, and statutory authority for this proposal.

54. To the extent that incarcerated people currently have access to forms of TRS not currently covered by the ban on TRS charges, the Commission seeks comment on the extent to which callers or called parties are currently being charged for such TRS calls, and whether such charges are assessed by the inmate calling services provider, the correctional facility, the TRS provider, or another entity. Are the same charges assessed for all types of TRS calls allowed at a given correctional facility, or only some? If certain charges are only being assessed for some types of TRS, which types are being assessed? If charges are imposed on either party for relay calls, what justification, if any, is proffered for imposing such charges? Are incarcerated people with communication disabilities being charged to access equipment needed to make relay calls? If so, how are they being charged ( e.g., per use, or per minute), and how much are they being charged? Are there any comparable charges for the use of telephones in correctional facilities? Which entities impose charges for the use of relay equipment in correctional facilities, and what justification, if any, is proffered for such charges? Where charges are not imposed for calls involving such additional forms of TRS, how are costs attributable to such calls currently being recovered, and how should they be recovered?

55. To the extent that the Commission has discretion to permit calling service providers to assess charges for non-TTY TRS, to what extent should such charges be allowed? Should the Commission allow charges for some forms of TRS and not others? For example, while VRS cannot be used for video communication unless the user knows sign language, CTS and IP CTS have no similar inherent barriers to use—and consequently are more susceptible to abuse by ineligible users. Could requiring the free provision of CTS and IP CTS create an undesirable incentive for ineligible incarcerated people to place calls using such relay services, simply to avoid the applicable charges for using non-TRS inmate calling services? Are correctional facilities able to effectively mitigate such risks? Should any allowed charges be calibrated, like TTY-to-TTY calls, to take into account that VRS, IP Relay, IP CTS, or CTS calls, like TTY-to-TTY calls, are of longer duration than “functionally equivalent” calls using “voice communications services”? On this point, the Commission invites commenters to submit evidence regarding the relative duration of various kinds of TRS calls and voice calls.

56. Correctional Institution Charges. Regarding charges for the use of relay services (whether TTY-based or modern) or related user devices or access services that are imposed directly by a correctional facility, rather than by an inmate calling services provider, the Commission seeks comment on whether the Commission has authority to regulate or prohibit such charges, either directly or indirectly, the source of any such authority, and how any such rules should be structured. The Commission also seeks comment on the legality of such charges under other laws, including other titles of the ADA.

57. Availability of Direct Communication. Many incarcerated people with communication disabilities have family and loved ones who also have communication disabilities. Communication with these people requires direct communication without TRS. This is a particular concern for incarcerated persons who are deaf and whose primary language is ASL. For these individuals, direct communication in their primary language requires direct video communication. To facilitate direct communication among ASL users, the Commission has long required VRS providers to handle point-to-point calls between a registered VRS user and another ASL user with an assigned VRS telephone number. Further, the record indicates that the number of correctional facilities that allow some form of direct video communication by incarcerated people has grown in recent years.

58. Because of the key role of video communications for ASL users, because VRS providers are already set up to provide direct video service in conjunction with VRS, and because the equipment and internet connection needed for VRS is also sufficient for direct video, the Commission proposes to require that, wherever inmate calling services providers provide access to VRS, they also provide access to direct video service, through a VRS provider or by another effective method. The Commission seeks comment on this proposal, including its costs and benefits and relevant sources of statutory authority. The Commission invites commenters to provide additional information on specific benefits that direct video communication provides, beyond those offered by VRS. In terms of benefits, costs, and feasibility, what are the differences between video visitations, which some facilities currently allow, and direct video communications using VRS provider networks? Is one form of direct video communication generally more available than the other? What are the security concerns, and related costs, with providing direct video communication in ASL using broadband internet in correctional facilities? How can such concerns be effectively addressed to increase the availability of direct video communication to incarcerated people with disabilities?

59. With respect to direct text-based communication for incarcerated people with disabilities, the record is insufficient for us to formulate a proposed rule. What kinds of direct text-based communication services—such as SMS messaging and real-time text—are currently available to incarcerated people with disabilities, and to what extent? Do direct text communications raise security concerns, and if so, how can they be addressed to enable increased availability of text communication to incarcerated people with communication disabilities?

60. Charges for Direct Communication. The Commission's current rules limit the rates charged by inmate calling services providers for TTY-to-TTY calls to no more than 25% of the rates they charge for traditional inmate calling services. The Commission invites comment on whether and how to expand the scope of this rule to include charges for other types of direct communications.

61. First, the Commission seeks additional information on current charging practices for other types of direct communications by incarcerated people with communication disabilities. With respect to direct video communication that is currently available in correctional facilities, are incarcerated people being charged for such calls, and if so, how much? Are different charges currently applied to point-to-point videophone calls by sign-language-using individuals with communication disabilities than for video visitation by other incarcerated people? How do charges for direct video communication and video visitation compare with charges for voice telephone calls? Regarding direct text services for incarcerated people with communication disabilities, are there charges for such services? If so, what are the rates? Are there differences in how much incarcerated people with communication disabilities are charged to engage in direct text communication and how much other incarcerated people are charged for similar services?

62. The Commission invites comment on whether the Commission should impose limits on the charges that may be assessed for direct video communications by ASL users, as well as the costs and benefits and its statutory authority for regulating such charges. Are such limits justified by fairness and nondiscrimination considerations, such as those underlying the TTY-pricing rule? For example, should the Commission require that an inmate calling services provider's charges for direct video communication by an incarcerated ASL user should be no greater than the provider's charges for a voice call of equivalent duration? Are similar limits needed and appropriate for direct text communication by people with communication disabilities?

63. As a part of the Commission's Annual Reporting and Certification Requirement, inmate calling services providers are required to submit certain information related to accessibility: (1) “[t]he number of TTY-based Inmate Calling Services calls provided per facility during the reporting period”; (2) “[t]he number of dropped calls the . . . provider experienced with TTY-based calls”; and (3) “[t]he number of complaints that the . . . provider received related to[,] e.g., dropped calls, [or] poor call quality[,] and the number of incidents of each by TTY and TRS users.” Inmate calling services providers must submit annual reporting and certifications forms to the Commission by April 1 of each year. Required information to submit include international, interstate, and intrastate inmate calling services rates and ancillary service charges. In the 2015 ICS Order, the Commission concluded that tracking TTY-based calls would not be overly burdensome because: (1) TTY-based TRS calls make up only a small portion of inmate calling services calls; and (2) the need for specialized equipment or calling a designated TRS number (such as 711), or both, makes tracking easier. The Commission also found the burdens of reporting TTY-based calls to be far outweighed by the benefits of greater transparency and heightened accountability on the part of inmate calling services providers. In the same order, the Commission established a safe harbor, allowing inmate calling services providers to avoid TRS-related reporting obligations if: (1) The provider operates in a facility that allows additional forms of TRS beyond those already mandated by the Commission, or (2) the provider has not received any complaints related to TRS calls. Although the TRS-related reporting may not be required under this safe harbor, the provider would need to provide a certification from an officer of the company stating which prong(s) of the safe harbor the provider has met. This safe harbor was adopted to help encourage correctional facilities to adopt more modern forms of TRS. Accessibility Coalition requests that the Commission expand the reporting requirement to foster accountability on the part of inmate calling services providers, and to eliminate the safe harbor. Specifically, they ask to include the functionality and status of accessible equipment in correctional facilities in the reporting requirements. At this time, the Commission does not propose a rule on reporting of accessible equipment by inmate calling services providers, pending further information and analysis regarding the current availability of such equipment and the role of inmate calling services providers in providing such equipment. Generally, GTL is opposed to additional data collection on the basis it would create an administrative burden.