The 2023 Supplement (2 CFR part 200, subpart F, and appendix XI to Part 200) adds new programs and provides updates on other programs, where necessary.

As part of the development of the audit guidance contained in the Supplement, OMB shared the draft language developed by the agencies with recipient and audit stakeholders, including the American Institute of Certified Public Accountants (AICPA), the National Association of State Auditors, Controllers and Treasurers (NASACT), the U.S. Government Accountability Office (GAO), and agency Inspector General offices for comments. The comments were reviewed, adjudicated, and addressed by the relevant agencies and OMB. All necessary changes are reflected in the final published version.

Section 11(k) of the Federal Reserve Act authorizes the Board to delegate, by published order or rule and subject to the Administrative Procedure Act, any of its functions, other than those related to rulemaking or pertaining principally to monetary and credit policies, to one or more administrative law judges, members or staff of the Board, or the Reserve Banks. 1 The Board has delegated authority to Board members (in their individual capacity and as chairs of committees of the Board), Board staff, and the Federal Reserve Banks to take certain actions under the various statutes that the Board administers. The Board's Rules Regarding Delegation of Authority (delegation rules) implement section 11(k) of the Federal Reserve Act and enumerate the actions that the Board has determined to delegate. By delegating actions that do not raise significant legal, supervisory, or policy issues, the Board can respond more efficiently to applications, requests, and other matters.

The Board published a final rule in 2022 that comprehensively revised the delegation rules. 2 The Board is amending the delegation rules to publish delegations of authority previously approved by the Board and make certain technical corrections, including cross-references that erroneously used the letter “l” in place of the number “1”.

For the reasons stated in the preamble the Board of Governors of the Federal Reserve System amends 12 CFR part 265 as follows:

I. Background Information

On April 12, 2023, SBA published the Final Rule on Small Business Lending Company (SBLC) Moratorium Rescission and Removal of the Requirement for a Loan Authorization (88 FR 21890, effective May 12, 2023). Through that rule, SBA lifted the self-imposed moratorium on licensing new SBLCs and established the plan to approve three SBLCs in the first year following implementation. An SBLC, as defined in 13 CFR 120.10, is a non-depository lending institution authorized by SBA to make loans pursuant to section 7(a) of the Small Business Act and loans to Intermediaries in SBA's Microloan program. An SBLC is:

• Supervised and examined solely by SBA at the federal level, although the entity may be subject to state supervision;

• Subject to additional SBA Loan Program Requirements, as defined in 13 CFR 120.10, including but not limited to regulations specific to SBLCs regarding formation, capitalization, and enforcement actions; and

• Subject to all other 7(a) Loan Program Requirements including but not limited to, those specific to origination, servicing, and liquidation.

This SBLC moratorium was put in place in 1982, prior to access to modern digital tools that enhance oversight and mitigate risk. For 41 years, SBA has overseen the application and approval process approximately 60 times for the transfer of the existing SBLC licenses including determining the capability and experience of the acquiring entity's leadership; the financial capacity to make, service, and liquidate loans; and the safety and soundness of its portfolio. This ensures compliance with SBA's regulatory requirements and origination of loans based on standards consistent with similarly sized commercial loans made by other lenders.

As stated above, the purpose of this notification is to announce that SBA's Office of Capital Access is opening the application period for new Small Business Lending Companies (SBLC) licenses. SBA is also maintaining the process for purchasing one of the existing lending authorities from a current SBLC in accordance with 13 CFR 120.468.

Although SBA is not accepting applications for Community Advantage SBLCs (CA SBLCs) in this open period, SBA will continue to accept applications for new lenders in SBA's Community Advantage (CA) Pilot Program through the end of the CA Pilot Program, which will sunset on September 30, 2023. Entities that are interested in applying to become a CA Pilot lender should follow the application instructions in the Community Advantage Participant Guide, version 7, effective May 31, 2022. In accordance with SBA Information Notice 5000-846918, Community Advantage Small Business Lending Company Conversion, effective May 1, 2023, SBA will continue to work with all CA Pilot lenders to transition them to CA SBLCs.

SBLCs must comply with SBA's requirements for SBA Lenders, SBA Supervised Lenders, and the additional requirements presented in 13 CFR part 120, subpart D, §§ 120.470 through 490 specifically for SBLCs.

SBLCs must:

1. Submit to the D/OCRM via OCRMSBLC@sba.gov for review their credit policy that demonstrates compliance with Title 13 of the CFR and SBA's Standard Operating Procedures (SOPs) for origination, servicing, and liquidation of 7(a) loans, and which must be acceptable to SBA in its discretion.

2. Submit to the D/OCRM via OCRMSBLC@sba.gov for review and approval annual validation, with supporting documentation and methodologies demonstrating that any scoring model used by the SBLC is predictive of loan performance.

3. Each SBLC's Board of directors must adopt and fully implement an internal control policy that provides adequate direction to the institution for effective control over and accountability for operations, programs, and resources. The Board-adopted internal control policy must, at a minimum, comply with 13 CFR 120.460. For example:

a. The internal control policy implemented must ensure satisfactory monitoring and management of the SBA loan portfolio, including but not limited to, providing for a periodic loan review function to be performed at least annually by a person who is not directly or indirectly responsible for loan making or by outside contractors.

b. It must include a list of monthly reports provided by the SBLC's management for Board review to support adequate Board oversight.

c. It must provide for internal controls for loan making, servicing and liquidation.

d. It must provide for a risk rating system to risk classify SBA loan assets satisfactory to SBA.

e. Internal control policies and procedures must include provisions to ensure compliance with SBA's Loan Program Requirements on eligibility.

f. Internal control policies and procedures must include provisions to ensure the SBLC exercises due diligence and prudent oversight of its third-party vendors, including Lender Service Providers (LSP) and other loan Agents. Such policies and procedures should include, but not be limited to, monitoring performance of loans referred by an Agent or where an Agent provided assistance.

g. SBLCs must provide documentation demonstrating that the internal control policies and procedures are fully implemented and followed.

4. SBLCs must adhere to their internal policies and procedures for originating, closing, servicing, and, when necessary, liquidating SBA loans. When SBA procedures require Lenders to follow their own policies and procedures on their similarly-sized, non-SBA guaranteed loans, SBLCs must follow the written policies and procedures that have been reviewed by SBA.

5. An SBLC may not make a loan to an Applicant that has received assistance from an affiliated Small Business Investment Company (SBIC). (13 CFR 120.476)

Per SBA regulations, to acquire an SBLC license, including a CA SBLC license, an entity must (1) purchase one of the existing lending authorities from a current SBLC or CA SBLC; or (2) apply for a new SBLC license or CA SBLC license when SBA opens an application period for new SBLC and/or CA SBLC licenses.

SBA does not participate in facilitating the transfer of an SBLC's SBA lending authority. Private party negotiations culminate in a definitive purchase and sale agreement which includes the terms and conditions related to the transfer of the SBA lending authority. This agreement must include provisions which condition the transfer upon the prior written approval of the SBA.

SBA's prior written approval is required per 13 CFR 120.468 for any proposed transaction or event that results in a change in ownership or control by any entity or person(s) not previously approved by SBA. Control as defined in this paragraph means the possession, direct or indirect, or the power to direct or cause the direction of the management or policies of an SBLC, whether through the ownership of voting securities, by contract, or otherwise.

To obtain written approval, the selling SBLC must send a written request or notice of intent to transfer to the SBLCApps@sba.gov. The written request should include:

a. The name and address of the acquiring concern; and

b. The primary name and contact information for the acquiring concern's contact.

The purchasing entity must submit an SBLC Application, as outlined below, for SBA's prior written consent with respect to any change of ownership or control transaction as specified in 13 CFR 120.468. The purchasing entity must also file a request for transfer with SBLCApps@sba.gov.

For change of control transactions, the Lender will need to reapply for any delegated authorities separately.

If the proposed change of ownership is for less than a majority interest, SBA may in its sole discretion limit the items required from the Lender in the SBLC Application, as outlined below, to support a request for prior written SBA consent.

SBA will issue notices in the Federal Register with information regarding the SBLC license application processes, including important timelines and procedures. Applicants must complete and submit an SBLC Application, as outlined below, during designated application periods.

The entity applying for a new SBLC license must submit an executed electronic scanned copy (in pdf format) to SBLCApps@sba.gov addressing each of the elements set forth below (“SBLC Application”). The SBLC Application must be complete and organized in tabular format. The application must include:

1. The Legal name, address, telephone, and email address of the proposed SBLC;

2. Identification of the form of organization of the proposed SBLC along with file-stamped copies of the concern's certificate of incorporation, certificate of formation or certificate of limited partnership (as applicable), and a copy of the concern's corporate bylaws, limited liability company operating agreement, or limited partnership agreement (as applicable);

3. Identification of the proposed SBLC's capitalization including the form of ownership, the identification of all classes of equity capital and proposed funding amounts, rights and preferences accorded to each class of stock or members interest (including voting rights, redemption rights, and rights of convertibility) and conditions for transfer, sale, or assignment of these interests;

4. The proposed SBLC's geographic area of operation;

5. Identification of all officers, directors, managing partners, managing members, and Key Employee(s) of the proposed SBLC, which includes senior managers, members of loan committees, and individuals who have a meaningful participation in the direction of the operations, policies, or financial decisions of the proposed SBLC), and all other individuals or entities that propose to hold an equity interest of at least 10% of the economic interest in any class of stock or ownership interest in the proposed SBLC (such identification should include a discussion of any prior SBA experience);

a. An organization chart showing the relationship of the proposed SBLC with all related Associates (see Appendix 3, Definitions) and affiliates within the organization;

b. All individuals or entities identified in this paragraph must submit an executed SBA Form 1081 and either a Form FD-258 (fingerprint card) or Electronic Fingerprint Submission. SBA Form 1081 and the Form FD-258 or Electronic Fingerprint Submission must be signed and dated within 90 days of submission to SBA.

c. A director or Key Employee of the lender organization is only required to submit either Form FD-258 (fingerprint card) or Electronic Fingerprint.

d. Submission if the director or Key Employee answered affirmatively to questions 10a, 10b, 10c, 11a and/or 11b on the SBA Form 1081. For SBLCs, proof of fidelity insurance coverage as detailed in 13 CFR 120.470(e).

6. A comprehensive business plan that details:

a. The nature of proposed operations, including the organizational units involved in sourcing, evaluating, underwriting, closing, disbursing servicing, and liquidating small business loans in the organization;

b. The identification of all sources of capital used to finance lending operations;

c. An operations plan detailing the nature of the Lender's proposed loan activity, the volume of activity projected over the first 3 years as an SBA Lender, projected balance sheets, income statements and statement of cash flows of the Lender, with alternative profit and loss scenarios based on run rates equivalent to 70% and 50% of projected loan activity, the type and projected amount of financing needed to support its lending plan, along with a discussion of Lender's proposed wind-down plan in the event the Lender decides to leave the program;

d. A detailed analysis of the Lender's projected secondary market activities during the first 3 years of operation, including a sensitivity analysis of the effect any changes in premium from the sale of the guaranteed portion of 7(a) loans in SBA's secondary market may have on the Lender's prospective earnings. The analysis must also include a description of the Lender's plans (if any) to securitize or sell participations in the unguaranteed portion of 7(a) loans; and

e. If the Lender intends to acquire any 7(a) loans, a written plan detailing the extent of this acquisition activity in its operating plan, and how the Lender will manage the transition of the 7(a) loan portfolio;

7. All documents associated with any type of external financing expected to be undertaken by the proposed SBLC;

8. A written statement from an authorized official of the acquiring concern certifying that the SBLC will not be primarily engaged in financing the operations of an Affiliate as defined in 13 CFR 121.103.

9. The most recent audited financial statements of the acquiring concern if it has been in operation for more than 1 year, or the audited financial statements of the acquiring concern's parent company.

10. A certified copy of a Board, limited partners, or members resolution specifying the individual(s) or official(s) granted the authority by the organization to submit this SBLC application;

11. A certification by the proposed SBLC that it is in full compliance with all Federal, State, and local laws;

12. A written legal opinion of independent counsel (“Independent Counsel” is counsel that is not an Associate of the lender), satisfactory to SBA that addresses whether the proposed SBLC:

a. Is duly formed, organized, and validly existing in good standing under the laws of the State of its organization, and is in full compliance with all Federal, State, and local laws in connection with the formation and organization of the proposed SBLC; and

b. Has the power, legal right, and authority to enter into the sale transaction.

SBA reserves the right to deny any entity applying for or proposing to acquire an SBLC's SBA lending authority, in its sole discretion. In addition to SBA's evaluation of the elements required in the SBLC Application, SBA may consider risk factors in its evaluation. These factors include, but are not limited to:

• The lending policies of the proposed SBLC, including those for non-SBA loans, and their alignment with SBA's mission;

• Historical performance measures (such as default, purchase and loss rate);

• Whether the applicant is subject to any legal proceedings, enforcement action, order or agreement with a regulator or the presence of other related concerns;

• Other performance data associated with the acquiring concern or its senior management team, along with other relevant information (such as SBA-observed gaps in small business lending not served by the existing 7(a) Lender population, including small-dollar lending and loans to underserved populations); and

• Affiliation with lenders or lender service providers previously sanctioned by SBA.

In the review process, SBA will not consider the following factors in its review:

• Timing of application submission, so long as the application is submitted within an open application period.

Once received, the Director, Office of Financial Program Operations (D/OFPO), in consultation with the Director, Office of Credit Risk Management (D/OCRM), Director, Office of Financial Assistance (D/OFA), Director, Office of Performance and System Management (D/OPSM), and the Deputy Associate Administrator of the Office of Capital Access or designee, makes the final determination on the application.

SBA will notify all applicants whether they have been approved. If approved, written notification will be provided to the applicant. Included with this letter will be SBA Form 750 for execution and return to SBA.

The SBLC application period is open as of Thursday, June 1, 2023, and SBA will continue accepting applications through 11:59 p.m. Eastern time on Monday, July 31, 2023. After such period, SBA will close the application period, review and process all applications in accordance with the instructions provided above, and award up to three SBLC licenses. SBA anticipates issuing the new SBLC licenses in fall of 2023.

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all MHI RJ Aviation ULC Model CL-600-2B19 (Regional Jet Series 100 & 440); CL-600-2C10 (Regional Jet Series 700, 701, & 702); CL-600-2C11 (Regional Jet Series 550); CL-600-2D15 (Regional Jet Series 705); CL-600-2D24 (Regional Jet Series 900); and CL-600-2E25 (Regional Jet Series 1000) airplanes. The NPRM published in the Federal Register on February 16, 2023 (88 FR 10060). The NPRM was prompted by AD CF-2022-32, dated June 13, 2022, issued by Transport Canada, which is the aviation authority for Canada (referred to after this as the MCAI). The MCAI states that it was discovered that the 10-year (120-month) periodic hydrostatic tests of the engine and auxiliary power unit (APU) fire extinguishing bottles on Model CL-600-2B19 airplanes and of the engine, APU, and cargo compartment fire extinguishing bottles for Model CL-600-2C10, CL-600-2C11, CL-600-2D15, CL-600-2D24, and CL-600-2E25 airplanes were not performed. This could mean that the functional test of the pressure switch, which should be performed as part of the hydrostatic tests, may have been omitted on several airplanes in service. Failure to perform the pressure switch test and the 10-year overhaul or restoration of the FIREX bottles could result in a dormant loss of fire extinguishing capability.

In the NPRM, the FAA proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive AMM and CMR tasks. The FAA is issuing this AD to address undetected loss of fire extinguishing capability for the engine, APU, or cargo compartment. The unsafe condition, if not addressed, could result in an inability to put out a fire in the engine, APU, or cargo compartment area.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0167.

The FAA received comments from Air Line Pilots Association, International (ALPA) who supported the NPRM without change.

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 referenced above. The FAA reviewed the relevant data, considered the comment received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Bombardier Temporary Revisions 2A-73 and 2A-74, both dated June 5, 2020. This service information specifies new or more restrictive CMR tasks.

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

The FAA estimates that this AD affects 1,114 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A318 series airplanes; Model A319 series airplanes; Model A320-211, -212, -214, -216, -231, -232, -233, -251N, -252N, -253N, -271N, -272N, and -273N airplanes; and Model A321 series airplanes. The NPRM published in the Federal Register on December 6, 2022 (87 FR 74519). The NPRM was prompted by AD 2022-0147, dated July 14, 2022; corrected August 17, 2022, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2022-0147) (also referred to as the MCAI). The MCAI states that the affected part manufacturer, Kidde Aerospace & Defense, reported that certain OHDS sensing elements, produced before January 31, 2021, may not properly detect thermal bleed leak events due to a quality escape during the manufacturing process.

In the NPRM, the FAA proposed to require a one-time detailed inspection of each affected part installed at an affected position ( i.e., a position identified as functional item number (FIN) 34HF, FIN 35HF, FIN 61HF or FIN 62HF) and replacement as applicable, and would prohibit the installation of affected parts at affected positions, as specified in EASA AD 2022-0147. The FAA is issuing this AD to address OHDS sensing elements that do not properly detect thermal bleed leak events, which could result in an air leak remaining undetected by the OHDS at an affected position and not being isolated during flight, possibly resulting in localized areas of the main landing gear bay and keel beam being exposed to high temperatures, and consequent reduced structural integrity of the airplane.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1491.

The FAA received comments from Air Line Pilots Association, International (ALPA), who supported the NPRM without change.

The FAA received additional comments from United Airlines. The following presents the comments received on the NPRM and the FAA's response to each comment.

United Airlines requested that the FAA clarify the exception to EASA AD 2022-0147 specified in paragraph (h)(1) of the proposed AD. Section 1.A. of Kidde Aerospace & Defense Service Bulletin CFD-26-3, dated January 13, 2022; or Revision 1, dated March 29, 2022; states that the date code is A2105, or January 31, 2021. Section 1.C under Reason of the Kidde Aerospace & Defense Service Bulletin CFD-26-3 states, “CFD sensing elements produced between November 24, 2004, and January 31, 2021, may not properly detect thermal bleed leak events.” Kidde Aerospace & Defense Service Bulletin CFD-26-3 states two different time constraints. The commenter asked the FAA to identify the correct time constraint including the serial number equivalent of the date code restriction “A2105.”

The FAA agrees that parts produced prior to November 24, 2004, and after January 31, 2021, do not have the problem identified in this AD. In order to provide additional clarity, paragraph (h)(1) of this AD has been updated accordingly.

United Airlines requested that the FAA provide the corresponding serial numbers to Date Code A2105.

The FAA disagrees. Kidde Aerospace & Defense Service Bulletin CFD-26-3, dated January 13, 2022; and Revision 1, dated March 29, 2022; specify the affected part numbers and date code, which is sufficient to identify parts subject to the requirements of this AD. Any listed part number that was manufactured between November 24, 2004, and the 5th week of January 2021, regardless of serial number, is an affected part, as defined by the MCAI and this AD.

United Airlines requested that the FAA specify what is being used to mark units that pass test requirements.

Part of the required actions of the Kidde Aerospace & Defense Service Bulletin CFD-26-3 is to mark one of the connector hex nuts. The marking method has been intentionally left at a high level to allow for local and regional customers to utilize their best marking practice. This can be achieved with a permanent marker and clear coat, paint, or a ceramic dye. Typically, a continuous fire detection (CFD) sensor may be removed 2-3 times in a 20- to 25-year life span of an airplane life to gain access to adjacent equipment that requires maintenance. Based on some open-end wrench trials at a Kidde lab, the marking was legible after many additional attempts at installing and removing the CFD sensors. It is standard practice to call out a part marking specification for that part of the process. For example MIL-STD 130 is one such common industry specification that is often used. The FAA considers this marking method as reasonable to achieve the necessary level of robustness over the service life of the aircraft, but operators may use other methods that result in legible and permanent markings.

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 referenced above. The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

EASA AD 2022-0147 specifies procedures for a one-time special detailed inspection (SDI) of each OHDS sensing element installed at an affected position to detect discrepancies (an incorrect electronic centralized aircraft monitor (ECAM) alert (one not related to AIR L WING LEAK) being displayed following the inspection of any OHDS sensing element) and, depending on findings, replacement of any affected part with a serviceable part. EASA AD 2022-0147 also prohibits the installation of affected parts at affected positions.

Kidde Aerospace & Defense Service Bulletin CFD-26-3, dated January 13, 2022; and Revision 1, dated March 29, 2022; specify the part numbers and corresponding date codes of the affected OHDS sensing elements.

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

The FAA estimates that this AD affects 1,836 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this 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.

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

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

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

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

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

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

Comments Invited

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-0936; Project Identifier MCAI-2023-00135-T” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, 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 final rule 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 regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this final rule.

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 AD 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 AD, 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 AD. Submissions containing CBI should be sent to Dan Rodina, Aerospace Engineer, International Validation Branch, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone (206) 231-3225; email dan.rodina@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 2023-0018, dated January 23, 2023 (EASA AD 2023-0018) (also referred to as the MCAI), to correct an unsafe condition for all Airbus SAS Model A310-203, -203C, -204, -221, -222, -304, -308, -322, -324 and -325 airplanes. Model A310-203C and -308 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.

The MCAI states that new or more restrictive airworthiness limitations and tasks are necessary. EASA AD 2023-0018 specifies that it requires a limitations and tasks already in Airbus A310 Airworthiness Limitations Section (ALS), Part 4, System Equipment Maintenance Requirements (SEMR), Revision 03, dated August 28, 2017, that is required by EASA AD 2017-0202, dated October 12, 2017 (which corresponds to FAA AD 2018-18-21, Amendment 39-19400 (83 FR 47054, September 18, 2018) (AD 2018-18-21)), and that incorporation of EASA AD 2023-0018 invalidates (terminates) prior instructions for that task. This AD, therefore, for the tasks identified in the service information referenced in EASA AD 2023-0018, terminates the limitations for the corresponding tasks required by paragraph (g) of AD 2018-18-21, for Model A310 series airplanes only.

The FAA is issuing this AD to address the effects of aging on airplane systems. Such effects could change system characteristics, leading to an increased potential for failure of certain life-limited parts. You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0936.

EASA AD 2023-0018 specifies new or more restrictive airworthiness limitations for airplane structures and safe life limits. 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 this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this AD after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This AD requires revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, which are specified in EASA AD 2023-0018 described previously, as incorporated by reference. Any differences with EASA AD 2023-0018 are identified as exceptions in the regulatory text of this AD.

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

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some 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 2023-0018 is incorporated by reference in this AD. This AD requires compliance with EASA AD 2023-0018 through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in EASA AD 2023-0018 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 2023-0018. Service information required by EASA AD 2023-0018 for compliance will be available at regulations.gov under Docket No. FAA-2023-0936 after this AD is published.

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

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

The previous format of the airworthiness limitation ADs included a paragraph that specified that no alternative actions ( e.g., inspections) or intervals may be used unless the actions and intervals are approved as an AMOC in accordance with the procedures specified in the AMOCs paragraph under “Additional FAA Provisions.” This new format includes a “New Provisions for Alternative Actions and Intervals” paragraph that does not specifically refer to AMOCs, but operators may still request an AMOC to use an alternative action or interval.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

There are currently no domestic operators of these products. Accordingly, notice and opportunity for prior public comment are unnecessary, pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the forgoing reason(s), the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

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

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

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

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the 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 modifies the route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

The FAA published a NPRM for Docket No. FAA-2022-0939 in the Federal Register (87 FR 50018; August 15, 2022), proposing to amend VOR Federal airways V-35 and V-260. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

Subsequent to publishing the NPRM, the FAA decided to postpone the airway V-35 amendment. This rule only amends airway V-260.

VOR Federal airways are published in paragraph 6010(a) of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by amending VOR Federal airway V-260. The route changes are described below.

V-260: V-260 extends from Charleston, WV, to Cofield, NC. This action removes Charleston, WV; Rainelle, WV; Roanoke, VA; Lynchburg, VA; Franklin, VA; and Cofield, NC from the route. As amended, V-260 extends from Flat Rock, VA, to Hopewell, VA.

The full description of V-260 is listed the amendments to part 71 set forth below. The FAA makes these changes in support of the FAA's VOR MON program.

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. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this airspace action of amending VOR Federal airway V-260 qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points); and paragraph 5-6.5b, which categorically excludes from further environmental impact review “Actions regarding establishment of jet routes and Federal airways (see 14 CFR 71.15, Designation of jet routes and VOR Federal airways ). . .”. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the 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 modifies the route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

The FAA published a NPRM for Docket No. FAA-2022-0902 in the Federal Register (87 FR 43757; July 22, 2022), proposing to amend VOR Federal airways V-44, V-139, and V-268; and removing airways V-34, and V-167, and V-308. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

Subsequent to publishing the NPRM, the FAA decided to postpone amending VOR Federal airways V-44, V-139, and V-268, and removing V-34 and V-167. This rule only removes VOR Federal airway V-308.

VOR Federal airways are published in paragraph 6010(a) of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by removing VOR Federal airway V-308. The FAA makes this change is support of the FAA's VOR MON program.

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. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action of removing VOR Federal airway V-308 in Northeastern United States, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points); and paragraph 5-6.5b, which categorically excludes from further environmental impact review “Actions regarding establishment of jet routes and Federal airways (see 14 CFR 71.15, Designation of jet routes and VOR Federal airways ). . .”. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace extending upward from 700 feet above the surface at Marion Airport, Marion, IA, to support instrument flight rule (IFR) operations at this airport.

The FAA published an NPRM for Docket No. FAA-2022-1672 in the Federal Register (87 FR 78614; December 22, 2022) establishing Class E airspace at Marion, IA. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order Jo 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Marion Airport, Marion, IA.

This action is necessary to support new public instrument procedures, and will support IFR operations at this airport.

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. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the 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 modifies the route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

The FAA published a NPRM for Docket No. FAA-2022-0901 in the Federal Register (87 FR 43755; July 22, 2022), proposing to amend VOR Federal airways V-1, V-16, and V-290, and remove airways V-93, and V-229. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

Since publishing the NPRM, the FAA decided to postpone some of the proposed airway changes.

V-1: The NPRM proposed to remove the V-1 airway segments from Cofield, NC, to Boston, MA. After publication, the FAA decided to postpone these changes. Therefore, V-1 remains in effect as currently published in FAA Order JO 7400.11G.

V-16: The NPRM proposed to amend V-16 by removing the airway segments from the intersection of the Richmond, VA, 039° and the Patuxent, MD, 228° radials, to Boston, MA. After publication, the FAA decided to retain some of these segments. Accordingly, the FAA removes the segments between Richmond, VA, and Smyrna, DE; and the segments between the CREAM, NY, Fix, and Boston, MA. The segment from Smyrna to CREAM is being retained to support the VOR MON plan.

V-93: The NPRM proposed to remove V-93 entirely. After publication, the FAA decided to retain some of the route. V-93 is amended by removing only the segments between Patuxent River, MD, and Baltimore, MD.

V-229: The NPRM proposed to remove V-229 entirely. After publication, the FAA decided to retain some of the route. The FAA removes the following two segments of V-229: the segment between Patuxent River, MD, and the DONIL, DE, Fix: and the segment between the PANZE, NJ, Fix, and Hartford, CT. The airway segment between DONIL and PANZE is retained.

V-290: The NPRM proposed to amend V-290 by removing the segments from Rainelle, WV, to Flat Rock, VA, due to the planned decommissioning of the Rainelle, WV (RNL), VOR. Subsequently, the FAA established the SHANE, WV, navigation Fix to replace the VOR so that the segment to Flat Rock can be retained and remain available for navigation. The SHANE Fix is defined by the intersection of the Bluefield, WV (BLF), VOR/Distance Measuring Equipment (DME) 025°(T)/028°(M) and the Montebello, VA (MOL), VOR/DME 274°(T)/279°(M) radials.

These differences are reflected in the airway descriptions in the Rule section.

VOR Federal airways are published in paragraph 6010(a) of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by modifying the following VOR Federal airways, as described.

V-16: V-16 consists of two parts: from Los Angeles, CA, to Holly Springs, MS; and from Shelbyville, TN, to Boston, MA. This action amends the second part of the route by removing the segments between Richmond, VA, and Smyrna, DE; and by removing the segments between the CREAM, NY, Fix and Boston, MA. The CREAM Fix is defined by the intersection of the Calverton, NY 044°, and the Madison, CT 142° radials. Therefore, the second part of V-16 extends from Shelbyville, TN, to Richmond, VA; and from Smyrna, DE, to the intersection of the Calverton, NY, 044°, and the Madison, CT 142° radials ( i.e., the CREAM Fix). The first part of the route, from Los Angeles, CA, to Holly Springs, MS, remains unchanged as currently published in FAA Order JO 7400.11G. The words “The airspace within Restricted Areas R-4005 and R-4006 is excluded,” is removed from the route description because the amended route no longer passes by those areas.

As amended, V-16 consists of three parts: from Los Angeles, CA, to Holly Springs, MS; from Shelbyville, TN, to Richmond, VA; and from Smyrna, DE, to the intersection of the Calverton, NY, 044°, and the Madison, CT 142° radials.

Area Navigation (RNAV) route T-224 has been extended as an overlay of V-16.

V-93: V-93 extends, in two parts, from Patuxent River, MD, to the intersection of the Wilkes-Barre, PA 037° and Sparta, NJ 300° radials; and from the intersection of the Sparta 018° ad the Kingston, NY 270° radials, to Chester, MA. This action removes the segments from Patuxent River, MD to Baltimore, MD, due to the planned decommissioning of the Patuxent, MD, and Nottingham, MD, VOR/Tactical Air Navigation (VORTAC). As amended, V-93 extends from Baltimore, MD, to the intersection of the Wilkes-Barre, PA 037° and Sparta, NJ 300° radials; and from the intersection of the Sparta 018° and the Kingston, NY 270° radials to Chester, MA.

V-229: V-229 extends from Patuxent, MD, to Hartford, CT. This action removes the segments From Patuxent, MD to the DONIL, DE, Fix; and the segment from the PANZE, NJ, Fix to Hartford, CT. The segment From DONIL to PANZE is being retained at the request of the Department of Defense. As amended, V-229 extends from the intersection of the Atlantic City, NJ 236° and the Smyrna, DE 133° radials (the DONIL Fix) to the intersection of the Atlantic City 055° and the Coyle, NJ 125° radials (the PANZE Fix). The words “The airspace below 2,000 feet MSL outside the United States is excluded” are removed from the route description because they no longer apply.

RNAV route T-315 overlies the segments of VOR Federal airway V-229 north of the DONIL Fix.

V-290: V-290 consists of two parts: from Rainelle, WV to Flat Rock, VA; and from Tar River, NC to the intersection of the Tar River 109° and the New Bern, NC 042° radials. This action replaces the Rainelle, WV (RNL), VOR in the route description with the SHANE, WV, Fix. As amended, V-290 extends from the intersection of the Bluefield, WV 025°(T)/028°(M) and the Montebello, VA 274°(T)/279°(M) radials (the SHANE Fix) to Flat Rock; and from Tar River to the intersection of the Tar River 109° and the New Bern 042° radials.

The full route descriptions of these airways are listed in the amendments to part 71 set forth below. These actions are necessary to support the FAA's VOR MON program.

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. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action of amending VOR Federal airways V-16, V-290 and removing Federal airways V-93, V-290 in Northeastern United States, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points); and paragraph 5-6.5b, which categorically excludes from further environmental impact review “Actions regarding establishment of jet routes and Federal airways (see 14 CFR 71.15, Designation of jet routes and VOR Federal airways ). . .”. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

Background

The Entity List (supplement no. 4 to part 744 of the EAR (15 CFR parts 730-774)) identifies entities for which there is reasonable cause to believe, based on specific and articulable facts, that the entities have been involved, are involved, or pose a significant risk of being or becoming involved in activities contrary to the national security or foreign policy interests of the United States, pursuant to § 744.11(b). The EAR impose additional license requirements on, and limit the availability of, most license exceptions for exports, reexports, and transfers (in-country) when a listed entity is a party to the transaction. The license review policy for each listed entity is identified in the “License Review Policy” column on the Entity List, and the impact on the availability of license exceptions is described in the relevant Federal Register document that added the entity to the Entity List. The Bureau of Industry and Security (BIS) places entities on the Entity List pursuant to part 744 (Control Policy: End-User and End-Use Based) and part 746 (Embargoes and Other Special Controls) of the EAR.

The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and makes all decisions to remove or modify an entry by unanimous vote.

The ERC determined to add sixty-nine entities to the Entity List under the destination of Russia for providing support to Russia's military and defense sector. This activity is contrary to U.S. national security and foreign policy interests under § 744.11(b) and these entities qualify as military end users under § 744.21 (g) of the EAR. The sixty-nine Russian entities added to the Entity List are receiving a footnote 3 designation because the ERC has determined that they are Russian or Belarusian `military end users' pursuant to § 744.21. A footnote 3 designation subjects these entities to the Russia/Belarus-Military End User Foreign Direct Product (FDP) rule, detailed in § 734.9(g). The entities are added with a license requirement for all items subject to the EAR and a license review policy of denial for all items subject to the EAR apart from food and medicine designated as EAR99, which will be reviewed on a case-by-case basis.

The ERC determined to add Medisar, LLC, under the destination of Armenia, to the Entity List pursuant to § 744.11(b) of the EAR for engaging in conduct that prevented the successful accomplishment of an end-use check. In addition, the ERC determined to add Tro.Ya, LLC, under the destination of Kyrgyzstan, to the Entity List pursuant to § 744.11(b) for both preventing the successful accomplishment of an end-use check and posing a risk of diversion of items subject to the EAR to Russia. These two entities are added with a license requirement for all items subject to the EAR and a license review policy of presumption of denial.

For the reasons described above, this final rule adds the following seventy-one entities to the Entity List and includes, where appropriate, aliases:

• Medisar, LLC.

• Tro.Ya, LLC.

• Closed Joint Stock Company Special Design Bureau;

• Federal State Enterprise Kazan State Gunpowder Plant;

• Federal State Unitary Enterprise Central Scientific Research Institute of Chemistry and Mechanics;

• Federal State Unitary Enterprise Rostov-On-Don Research Institute of Radio Communications;

• Informtest Firm Limited Liability Company;

• Joint Stock Company 150 Aircraft Repair Plant;

• Joint Stock Company 810 Aircraft Repair Plant;

• Joint Stock Company Arzamas Instrument-Making Plant named after P.I. Plandin;

• Joint Stock Company Bryansk Automobile Plant;

• Joint Stock Company Central Research Institute Burevestnik;

• Joint Stock Company Central Research Institute of Automation and Hydraulics;

• Joint Stock Company Concern Avrora Scientific and Production Association;

• Joint Stock Company Concern Central Institute for Scientific Research Elektropribor;

• Joint Stock Company Concern Morinformsystem Agat;

• Joint Stock Company Concern Okeanpribor;

• Joint Stock Company Dux;

• Joint Stock Company Eastern Shipyard;

• Joint Stock Company ENICS;

• Joint Stock Company Information Satellite Systems Named After Academician M.F. Reshetnev;

• Joint Stock Company Izhevsk Electromechanical Plant Kupol;

• Joint Stock Company Kazan Optical-Mechanical Plant;

• Joint Stock Company Khabarovsk Shipbuilding Yard;

• Joint Stock Company Machine Building Company Vityaz;

• Joint Stock Company Management Company Radiostandard;

• Joint Stock Company Marine Instrument Engineering Corporation;

• Joint Stock Company Nevskoe Design Bureau;

• Joint Stock Company NII Gidrosvyazi Shtil;

• Joint Stock Company Nizhny Novgorod Plant of the 70th Anniversary of Victory;

• Joint Stock Company Northern Production Association Arktika;

• Joint Stock Company Perm Machine Building Plant;

• Joint Stock Company Precision Engineering Design Bureau named after A.E. Nudelman;

• Joint Stock Company Production Complex Akhtuba;

• Joint Stock Company Project Design Bureau RIO;

• Joint Stock Company Ratep;

• Joint Stock Company Scientific Production Association Impulse;

• Joint Stock Company Scientific Production Association Orion;

• Joint Stock Company Scientific Production Association Russian Basic Information Technologies;

• Joint Stock Company Scientific Production Association Volna Plant;

• Joint Stock Company Scientific Production Center of Automatics and Instrument Building Named After Academician N.A. Pilyugin;

• Joint Stock Company Scientific Production Concern Tekhmash;

• Joint Stock Company Scientific Research Engineering Institute;

• Joint Stock Company Scientific Research Institute of Computing Complexes Named After M.A. Kartsev;

• Joint Stock Company Scientific Technical Institute Radiosvyaz;

• Joint Stock Company Taganrog Plant Priboy;

• Joint Stock Company Tula Cartridge Works;

• Joint Stock Company Tula Machine-Building Plant;

• Joint Stock Company Ulan-Ude Aviation Plant;

• Joint Stock Company Ulyanovsk Cartridge Works;

• Joint Stock Company Ulyanovsk Mechanical Plant;

• Joint Stock Company Ural Automotive Plant;

• Joint Stock Company Ural Works of Civil Aviation;

• Joint Stock Company Vodtranspribor;

• Joint Stock Company Zavod Elecon;

• Joint Stock Company Zavolzhskiy Plant of Caterpillar Tractors;

• Joint Stock Company Zelenodolsk Plant Named After A.M. Gorky;

• Machine Building Group Limited Liability Company;

• Military Industrial Company Limited Liability Company;

• Open Joint Stock Company Degtyaryov Plant;

• Promtekhnologiya Limited Liability Company;

• Public Joint Stock Company Kurganmashzavod;

• Public Joint Stock Company Motovilikha Plants;

• Public Joint Stock Company Proletarsky Plant;

• Public Joint Stock Company Rostvertol;

• Public Joint Stock Company Scientific Production Association Strela;

• Scientific Production Association Izhevsk Unmanned Systems Limited Liability Company;

• Scientific Production Enterprise Prima Limited Liability Company;

• United Machine Building Group Limited Liability Company;

• Volgograd Machine Building Company Limited Liability Company; and

• VXI-Systems Limited Liability Company

For the changes being made in this final rule, shipments of items removed from eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export, reexport, or transfer (in-country), on May 19, 2023, pursuant to actual orders for export, reexport, or transfer (in-country) to or within a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) before June 20, 2023. Any such items not actually exported, reexported, or transferred (in-country) before midnight, on June 20, 2023, require a license in accordance with this final rule.

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4801-4852). ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.

1. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by OMB under control number 0694-0088, Simplified Network Application Processing System, which includes, among other things, license applications and commodity classifications, and carries a burden estimate of 29.4 minutes for a manual or electronic submission for a total burden estimate of 33,133 hours. Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule.

3. This rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.

4. Pursuant to section 1762 of the Export Control Reform Act of 2018, this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date.

5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

The Coast Guard will enforce special local regulations in 33 CFR 100.1301 for the Seattle Seafair Unlimited Hydroplane Race from 8 a.m. to 5 p.m. on Friday, August 4, 2023, and from 8 a.m. to 6 p.m. on August 5, 2023, and August 6, 2023. This action is being taken to provide for the safety of life on navigable waterways during this three-day event. Our regulation for marine events within the Thirteenth Coast Guard District, § 100.1301(b), specifies the location of the regulated area for the Seattle Seafair Unlimited Hydroplane Race which encompasses portions of Lake Washington. During the enforcement periods, if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.

The regulated area has been divided into two zones. The zones are separated by a line perpendicular from the I-90 Bridge to the northwest corner of the East log boom and a line extending from the southeast corner of the East log boom to the southeast corner of the hydroplane racecourse and then to the northerly tip of Ohlers Island in Andrews Bay. The western zone is designated Zone I, and the eastern zone is designated Zone II. (Refer to National Oceanic and Atmospheric Administration (NOAA) Chart 18447)

The Coast Guard will maintain a patrol consisting of Coast Guard vessels, assisted by Coast Guard Auxiliary vessels, in Zone II. The Coast Guard patrol of this area is under the direction of the Coast Guard Patrol Commander (the “Patrol Commander”). The Patrol Commander is empowered to control the movement of vessels on the race course and in the adjoining waters during the periods this regulation is subject to enforcement. The Patrol Commander may be assisted by other Federal, state, and local law enforcement agencies.

Only vessels authorized by the Patrol Commander may be allowed to enter Zone I during the hours this regulation is subject to enforcement. Vessels in the vicinity of Zone I shall maneuver and anchor as directed by Coast Guard Officers or Petty Officers.

During the times in which the regulation is enforced, the following rules listed in the regulation will apply:

(1) Swimming, wading, or otherwise entering the water in Zone I by any person is prohibited while hydroplane boats are on the racecourse. At other times in Zone I, any person entering the water from the shoreline shall remain west of the swim line, denoted by buoys, and any person entering the water from the log boom shall remain within 10 feet of the log boom.

(2) Any person swimming or otherwise entering the water in Zone II shall remain within 10 feet of a vessel.

(3) Rafting to a log boom will be limited to groups of three vessels.

(4) Up to six vessels may raft together in Zone II if none of the vessels are secured to a log boom.

(5) Only vessels authorized by the Patrol Commander, other law enforcement agencies or event sponsors shall be permitted to tow other watercraft or inflatable devices.

(6) Vessels proceeding in either Zone I or Zone II during the hours this regulation is subject to enforcement shall do so only at speeds which will create minimum wake, seven miles per hour or less. This maximum speed may be reduced at the discretion of the Patrol Commander.

(7) Upon completion of the daily racing activities, all vessels leaving either Zone I or Zone II shall proceed at speeds of seven miles per hour or less. The maximum speed may be reduced at the discretion of the Patrol Commander.

(8) A succession of sharp, short signals by whistle or horn from vessels patrolling the areas under the direction of the Patrol Commander shall serve as signal to stop. Vessels signaled shall stop and shall comply with the orders of the patrol vessel; failure to do so may result in expulsion from the area, citation for failure to comply, or both.

The Captain of the Port may be assisted by other Federal, state, and local law enforcement agencies in enforcing this regulation.

If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notification, he may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area. In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners and marine information broadcasts.

The Coast Guard will enforce the Seafair Air Show Performance safety zone in 33 CFR 165.1319 from 10 a.m. until 4 p.m. on August 3, 2023, and from 8 a.m. until 5 p.m. each day from August 4, 2023, through August 6, 2023, unless canceled sooner by the Captain of the Port. This action is being taken to provide for the safety of life on navigable waterways during this 4-day event. Our regulation for marine events within the Thirteenth Coast Guard District, § 165.1319(b), specifies the location of the regulated area for the Seafair Air Show performance which encompasses portions of Lake Washington.

During the enforcement periods, as reflected in § 165.1319, no person or vessel may enter or remain in the zone except for support vessels and support personnel, vessels registered with the event organizer, or other vessels authorized by the Captain of the Port or designated representatives. Vessels and persons granted authorization to enter the safety zone must obey all lawful orders or directions made by the Captain of the Port or his designated representative.

The Captain of the Port (COTP) may be assisted by other Federal, state, and local law enforcement agencies in enforcing this regulation.

In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners and marine information broadcasts.

If the COTP determines that the safety zone need not be enforced for the full duration stated in this notification of enforcement, he may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

I. Background II. Water Resources Infrastructure Needs III. Summary of Comments IV. Program Information A. Funding B. Borrower Eligibility C. Project Eligibility D. Project Cost Eligibility E. Statutory Requirements F. Application Process G. Creditworthiness H. Fees I. Credit Assistance J. Rating Requirement K. Federal Requirements L. American Iron and Steel Requirements M. Labor Standards (Davis-Bacon Act of 1931) N. Reporting Requirements O. Selection Criteria V. Statutory and Executive Order Reviews I. Background

The U.S. Army Corps of Engineers (Corps) is publishing this final rule to implement a program authorized under Subtitle C of Title V of the Water Resources Reform and Development Act of 2014 (WRRDA), often referred to as the Water Infrastructure Finance and Innovation Act of 2014 (WIFIA). The program was provided funding and further statutory direction in Division D, Title 1 of the Consolidated Appropriations Act of 2021 and Division J, Title III of the Infrastructure Investment and Jobs Act. WIFIA authorizes the Corps to provide secured (direct) loans and guaranteed loans to eligible water resources infrastructure projects. The only eligible project type—under Division D, Title 1 of the Consolidated Appropriations Act of 2021 and Division J, Title III of the Infrastructure Investment and Jobs Act are: “. . . . safety projects to maintain, upgrade, and repair dams identified in the National Inventory of Dams with a primary owner type of state, local government, public utility, or private. . .”. The appropriations language also specifies that any project “for a dam that is identified as jointly owned in the National Inventory of Dams and where one of those joint owners is the Federal Government” is ineligible to receive the funding provided by these appropriations. This rule limits implementation to only those project types listed in the Acts. WIFIA authorizes the Corps to charge fees to recover all or a portion of the Corps' cost of providing credit assistance and all costs of conducting engineering reviews and retaining expert firms, including financial and legal services, in the field of municipal and project finance to assist in the underwriting and servicing of Federal credit instruments. WIFIA also authorizes the borrower to pay part or all of the cost of direct loans and guaranteed loans (“credit subsidy cost”) and this authority would be implemented under this rule. Projects will be evaluated and selected by the Secretary of the Army (the Secretary) based on the requirements and the criteria described in this rule. Following the selection of projects, individual credit agreements will be developed through negotiations between the borrowers and the Corps.

Congress enacted the WIFIA as part of WRRDA, as amended by section 1445 of Public Law 114-94, section 5008 of Public Law 114-322, and section 4201 of Public Law 115-270 (see 33 U.S.C. 3901-3914). These amendments were minor changes primarily focused on the Administrator of the Environmental Protection Agency (EPA) and other changes regarding State Infrastructure Financing Authorities, removing limitations on use of tax exempt funding sources, changes to project eligibility for the EPA, and allowance of fees as an eligible cost which is included elsewhere in this final rule. Title I, Division D of the Consolidated Appropriations Act, 2021 provided $12 million in budget authority for the credit subsidy cost for safety projects to maintain, upgrade, and repair dams identified in the National Inventory of Dams with a primary owner type of State, local government, public utility, or private. Title 1, Division D also provided that the $12 million credit subsidy appropriation, is available to subsidize gross obligations for the principal amount of direct loans, including capitalized interest, and total loan principal, including capitalized interest, any part of which is to be guaranteed not to exceed $950,000,000. Division J, Title III of the Infrastructure Investment and Jobs Act provided an additional $64,000,000 in budget authority for the cost of direct loans and guaranteed loans, for safety projects to maintain, upgrade, and repair dams identified in the National Inventory of Dams with a primary owner type of State, local government, public utility, or private. 1 Division J, Title III also provided the $64 million credit subsidy appropriation cannot be used to fund a project for a dam that is identified as jointly owned in the National Inventory of Dams and where one of those joint owners is the Federal Government. As described in the proposed rule “Credit Assistance and Related Fees for Water Resources Infrastructure Projects” (87 FR 35473), the Corps is establishing its new WIFIA program limited to safety projects to maintain, upgrade, and repair dams identified in the National Inventory of Dams with a primary owner type of State, local government, public utility, or private.

A primary objective for Federal credit programs is to help correct a capital market imperfection. Municipal, regional, state-level and other infrastructure project sponsors generally do not market debt sales used to fund infrastructure projects beyond 30-year terms through public bond markets due to existing market conventions. Proceeds from bond sales are available immediately, not according to cash flow needs during project construction. In addition, debt sold through multiple issuances during an infrastructure project's construction period exposes project sponsors to debt interest rate risk. Congress provided the Corps WIFIA program the legal authority to help address these factors that otherwise may impede affordable infrastructure investment through the prospective terms of WIFIA credit assistance.

WIFIA, authorized the Corps to provide both loans and loan guarantees to eligible entities: corporations; partnerships; joint ventures; trusts; State or local governmental entities, agencies, or instrumentalities; Tribal governments or consortiums of Tribal governments; or State infrastructure finance authorities.

While WIFIA authorizes the Corps to provide for a wide variety of eligible projects this final rule is limited to implementing a credit assistance program for safety projects to maintain, upgrade, and repair dams identified in the National Inventory of Dams with a primary owner type of State, local government, public utility, or private (referred to here after as “non-Federal dams”). As applied to credit assistance for non-Federal dam projects under Title 1, Division D or the Consolidated Appropriations Act, 2021, Division J, Title III of the Infrastructure Investment and Jobs Act, Sections 3902, 3905, and 3907 of Title 33 of the U.S.C., describe the conditions that govern a project's eligibility. Projects must have eligible costs of not less than $20 million. 33 U.S.C. 3907(a)(2)(A). Eligible borrowers, eligible projects, and other statutory requirements are further described in detail in the sections below and summarized in this document and 85 FR 39189. As used throughout this SUPPLEMENTARY INFORMATION section and part 386 of the rule, “borrower” is synonymous with “obligor”. WIFIA defines an “obligor” as “an eligible entity that is primarily liable for payment of the principal of, or interest on, a Federal credit instrument.” 33 U.S.C. 3901(7). “Obligor” is used in place of “borrower” whenever “obligor” appears in a corresponding section of WIFIA.

The American Jobs Plan estimates that in 2020, weather and climate disasters cost the United States $95 billion in damages to homes, businesses, and public infrastructure. 2 The Administration has made investment in U.S. infrastructure a priority to increase resiliency in the face of such threats.

Non-Federal dams account for roughly 87,000 of the 90,580 dams as reported in the National Inventory of Dams. Over 14,000 non-Federal dams are now classified as “high hazard potential,” meaning that they would likely result in loss of life if they were to fail. 3 According to a 2019 cost estimate conducted by the Association of State Dam Safety Officials (ASDSO), the cost to rehabilitate (repair, replace or remove) all non-Federal dams is estimated at over $66 billion with high hazard potential dams accounting for over $20 billion. 4 Funding requirements are only projected to increase as infrastructure continues to age, risk awareness progresses, and design standards evolve. 5

While almost half of the States have created a state-funded grant or low-interest revolving loan program to assist dam owners with repairs, the ASDSO indicates that these programs vary significantly in the financial assistance available. 6 Another Federal infrastructure financing program, WIFIA, administered by the EPA provides credit financing for non-Federal water and wastewater infrastructure project. Similar to the Corps WIFIA program, the maximum portion of eligible project costs are 49% or 80% for small communities. The EPA WIFIA program can finance dam projects, however those projects compete against a wide range of water and wastewater type projects. In FY 2021 the EPA WIFIA program had an appropriation of $55 million, allowing WIFIA to lend approximately $5.5 billion. In 2021, the EPA made it possible for dam projects to receive funding under the Federal Drinking Water State Revolving Fund (DWSRF), administered by the EPA, provided that the dam's primary purpose is for drinking water supply and that the dam must be owned by the public water system. Through the DWSRF program, the EPA will make available $1.8 billion in capitalization grants for drinking water infrastructure needs, a portion of which could go towards drinking water supply dam projects, depending on the priorities of the States. The Federal Watershed Rehabilitation Program administered by the Natural Resources Conservation Service (NRCS) helps project sponsors rehabilitate aging dams that are reaching the end of their design lives. This rehabilitation addresses critical public health and safety concerns. Division J, Title I of the Infrastructure Investment and Jobs Act provides $118M for projects under the Watershed Rehabilitation Program. The Federal Rehabilitation of High Hazard Potential Dam (HHPD) Program, administered by Federal Emergency Management Agency (FEMA), provides grants for repair, removal, or rehabilitation of eligible non-Federal, high hazard potential dams. Projects can receive a maximum grant of the lesser of $7.5 million or 12.5% of the total appropriated amount. The program was appropriated $10 million in both FY 2019 and FY 2020, $12 million in FY 2021, and $585 million in Division J, Title V of the Infrastructure Investment and Jobs Act ($75 million of which must go to dam removal projects). In addition, Section 40333 of the Infrastructure and Jobs Act of 2021 appropriated $553,600,000 until expended for EPAct 2005 Section 247: Maintaining and Enhancing Hydroelectricity Incentives to the US Department of Energy (DOE) for making incentive payments to owners and authorized operators of qualified hydroelectric facilities for capital improvements directly related to improving grid resilience, improving dam safety, and related to environmental improvements. Such incentive payments are limited to 30% of the costs of the applicable capital improvement(s) and not more than one incentive payment can be made to a single qualified hydroelectric facility in any fiscal year, the amount of which shall not exceed $5,000,000. For details refer to the draft application guidance for the Maintaining & Enhancing Hydroelectricity Incentives Program (EPAct 2005 Section 247) released by the DOE's Grid Deployment Office on February 8, 2023 for public comment to inform the implementation. In addition, USDA's Rural Development Water and Waste Disposal programs provide over $2 billion in grants and low-interest loans for water and waste infrastructure. These funds help provide rural Americans access to drinking water and sanitation, promoting economic development in rural areas. Dam construction and repair projects are eligible for these funds. Despite these programs and their funding capacity, the available funding for dam safety infrastructure falls short of the $66 billion need cited by ASDSO. The Corps' WIFIA program helps to bridge that gap by providing non-Federal entities with an additional means to invest in dam safety infrastructure, which will help communities withstand future weather and climate events. As communities become more resilient, all else being equal, this is expected to assist in limiting Federal disaster spending associated with such events.

In response to the proposed rule, the Corps received 12 letters submitted to the docket. Combined, these letters provided approximately 45 individual comments on the proposed rule. The Corps received comments from prospective applicants, trade associations, and individual private citizens. The Corps has considered all of these comments in the development of the final rule. Docket comments and summaries of the Corps' analyses and determinations are discussed as follows.

This section provides a discussion of each of the four major categories raised by commenters in response to the rulemaking, along with Corps' analysis and resolution.

Several commenters expressed support for expanding the scope of the program to allow credit assistance for additional eligible projects authorized for assistance under 33 U.S.C. 3905. Upon review and consideration of the comments, the Corps believes that it is important to note that Congress narrowed the scope of projects eligible for credit assistance by appropriating funds solely for non-federal dam safety projects, despite broad authority under WIFIA to fund water infrastructure projects. As a result, the Corps will not be expanding the scope of project eligibility under this rulemaking.

One commenter suggested that the Corps should clarify eligibility and application process and include a list of ineligible projects along with clarifying the differences between the Corps and the Environmental Protection Agency (EPA) WIFIA. Another commenter suggested that fragmented federal financing and unclear guidelines risk deterring applicants and delaying critical upgrades to high-risk infrastructure. Separately, the commenter recommended that the Corps should clarify eligibility and application steps for prospective applicants by (a) delineating between the Corps and the EPA WIFIA programs and (b) including a clear list of eligibility requirements. As evidence for this recommendation, the commenter stated that Corps anticipated the difficulty that applicants will have with (a) understanding eligibility requirements and (b) understanding which financing program best suits a project's scope, purpose, and needs.

The Corps and EPA intend to partner closely during the project selection process for eligible projects to ensure that funding allocated either by EPA or Corps WIFIA programs will use the most appropriate program relative to the project's scope, purpose, and benefits. It is important to note that both programs share the same authorizing legislation, and Congress provided a list of projects eligible for assistance under EPA's WIFIA program which also may be eligible as non-Federal dam safety projects. As a matter of efficiency of government resources, projects that include non-Federal dam safety work in addition to infrastructure outside of the scope of dam safety work, but eligible under EPA WIFIA, are ineligible for Corps WIFIA financing assistance. Any project whose application has been rejected for credit assistance by EPA will not be considered for assistance under the Corps program.

The application form has been submitted to the Office of Management and Budget (OMB) for approval under OMB Control Number 0710-0026, titled “Corps Water Infrastructure Financing Program (CWIFP) Preliminary Application.”

The Corps sought public comments on whether additional clarification is needed on project cost eligibility, such as whether a list of what costs are expressly ineligible would be helpful or whether that may result in additional confusion, as opposed to limiting the list to include only those which are eligible, as proposed. Although two commenters suggested they preferred a list of what costs are expressly ineligible, the commenters did not provide justification as to why such a list would not result in additional confusion among prospective applicants. Eligibility is dependent on several factors such as whether the costs were incurred through federally compliant contracts and whether costs are allocable and reasonable. As such, the Corps does not plan to include a list of expressly ineligible costs in this final rule. For information on specific costs, a prospective borrower can contact the Corps by emailing CWIFP@usace.army.mil.

One commenter provided comments that all dam safety projects are potential flood risk projects and should be considered eligible. The Corps agrees; however, each individual project is different and will require appropriate considerations based on the project conditions and verification of potential flood risks. To receive clarification on any unique project conditions, a prospective borrower can contact the Corps by emailing CWIFP@usace.army.mil.

Several commenters provided comments about the approach to defining economically disadvantaged communities and allocation of credit assistance to such communities. The Corps is utilizing the term “economically disadvantaged” to be generally consistent with the direction provided in Section 160 of the Water Resources Development Act of 2020 (Pub. L. 116-260) for the term as well as the Biden Administration's policies for identifying disadvantaged communities. This definition may be modified in the future as appropriate in response to updated guidance, tools and resources. A number of commenters wrote to expressly support inclusion of a selection criterion and prioritization for economically disadvantaged communities, and no commenters expressly opposed such a criterion. As stated in this rule, to be considered economically disadvantaged, a community only needs to meet one of the following criteria: (a) low-income, (b) unemployment rate above national average, (c) Indian country as defined in 18 U.S.C. 1151 or in the proximity of an Alaska Native Village, (d) U.S. Territories, or (e) identified as disadvantaged by the Climate and Economic Justice Screening Tool.

One commenter requested that the rule establish static metrics for how the selection criterion related to economically disadvantaged communities is considered relative to other criteria. Weights will not be included in the rule, as they may change with each funding availability opportunity. The weights used for each selection criterion will be provided to the public upon the solicitation to announce the availability of credit assistance. The priorities as indicated are as follows: Projects serving small, rural communities and economically disadvantaged communities and projects serving Tribal communities.

One commenter recommended that the Corps align the content of the rule with Executive Order (E.O.) 14008 (Justice40 Initiative) and then report on its progress toward achieving a 40% distribution of funds to disadvantaged communities. Although the WIFIA program is not a covered program under the Justice40 Initiative, the program will support priorities consistent with the Justice40 Initiative, including projects serving small, rural communities and economically disadvantaged communities and projects serving Tribal communities. Via its publicly accessible website, the Corps intends to report on its lending activities, including those lending activities which support priorities consistent with the Justice40 Initiative.

Two commenters expressed concerns about the transparency, accuracy, and fairness of the eligibility screening procedures for WIFIA projects under 85 FR 39189 and suggested that the Corps consider either eliminating the requirement that projects receiving WIFIA credit assistance should be subject to such procedures or revising the procedures and concepts contained within it.

The Environmental Protection Agency's (EPA) fiscal year 2020 appropriation for the WIFIA program required EPA, OMB, and the Department of the Treasury (Treasury) to jointly develop and publish criteria in the Federal Register for limiting federal participation in projects receiving WIFIA loans and loan guarantees, including for WIFIA loans issued by the Corps. The appropriation did not provide the Corps a role in developing such criteria. The criteria required by the appropriation were published on June 30, 2020, in 85 Federal Register 39189.

The Corps notes that funds made available by Congress for the Corps' WIFIA program have required that WIFIA credit assistance must be in accord with the criteria in 85 FR 39189. As such, the Corps cannot alter the applicability or requirements of the criteria nor procedures and content prescribed in 85 FR 39189.

Two commenters requested that the Corps provide applicants and borrowers estimates for transaction processing and servicing fees as early as practicable. The Corps will provide an estimate for transaction fees to applicants as part of initial coordination once the Corps has adequate data points to reference the transaction's relative complexity but expects the ranges for transaction processing fees provided in the rule to accurately reflect the expected costs for applicants. The Corps will update servicing fees due under the credit agreement annually adjusted in proportion to the percentage change in Consumer Price Index for All Urban Consumers (or its successors) calculated by the Bureau of Labor Statistics for the calendar year immediately preceding the calendar year during which such fee is due.

One commenter recommended that the Corps provide more detail on the optional credit subsidy fee, including how this fee will be calculated. As mentioned in the rule, utilization of this fee will only be in rare instances where budget authority is insufficient to fund the credit instrument and with the agreement of Corps and the borrower. Calculation of this figure is based on a number of dynamic factors including but not limited to the loan's relative risk, default and recovery assumptions, and interest rates. However, it is reasonable for applicants to assume loans with higher credit risk would result in a higher credit subsidy fee.

One commenter recommended that the Corps establish a reserve fund to pay for extraordinary expenses related to loan administration. However, the Corps does not have authority to establish such a fund.

One commenter asked for clarification of the treatment of changes in project scope and budget after credit agreement execution. Although the approach for changes to project scope and budget will be dependent on the relative risk and structure of the transaction's financing arrangements, the Corps intends to ensure that the project remains fully funded and in compliance with all Federal requirements at all times.

One commenter noted that the proposed rule stated that “as required by section 3908(b)(4) of Title 33 of the U.S.C., the interest rate on a secured loan would be equal to or greater than the yield on U.S. Treasury securities of comparable maturity on the date of execution of the credit agreement. The base interest rate can be identified through use of the daily rate tables published by the Bureau of the Fiscal Service for the State and Local Government Series (SLGS) investments.” The commenter proposes removing the ability to charge interest rates greater than the yield on U.S. Treasury securities of comparable maturity on the date of execution of the credit agreement to ensure access to the lowest borrowing cost possible for applicants.

The Corps does not concur with this proposal because it would limit the ability of applicants to pay the optional credit subsidy fee through an interest rate premium in the rare instance budget authority is unavailable in a sufficient amount to extend credit assistance to an applicant. For other applicants, the Corps will set the interest rate based on the yield on U.S. Treasury securities of comparable maturity on the date of execution of the credit agreement, which per 31 CFR part 344 is the SLGS rate plus one basis point.

One commenter suggested that the Corps impose blanket payment and performance bond requirements for all projects receiving WIFIA credit assistance irrespective of the borrower or project type, suggesting that such a requirement provides important protections in the event of contractor non-performance. After consideration, the Corps has determined that the proposal could introduce uncertainty and confusion among prospective applicants, as well as delay closings and financial assistance to these regionally and nationally significant water infrastructure projects.

The Corps expects that the bulk of WIFIA applicants will be comprised of non-Federal governmental entities, which in nearly all instances are subject to well-established State and local payment and performance bond requirements that provide appropriate protections for contractor non-performance. As a result, the proposal as it applies to non-Federal governmental entities may conflict or be redundant.

For other prospective WIFIA applicants which are not already subject to State and local payment and performance bond requirements, the Corps will carefully evaluate an applicant's proposed procurement methodology, and negotiate appropriate payment and performance bond requirements as necessary to ensure project completion and/or mitigate credit risk, while also meeting the program's mission to stimulate investment in important regionally and nationally significant non-Federal dam safety projects.

The Corps received two comments regarding the applicability of the Build America, Buy America Act (BABAA) to WIFIA credit assistance. The first comment expressed concerns about the fairness of applying BABAA requirements to WIFIA credit assistance. The second comment encouraged Corps to issue a waiver for projects that have initiated design planning prior to May 14, 2022, consistent with a waiver issued by the EPA under its WIFIA program. The commenter suggested that such a waiver would help minimize adverse cost and schedule impacts from implementing BABAA requirements for water infrastructure projects already in design. As part of President Biden's Infrastructure Investment and Jobs Act (IIJA), beginning with awards received on or after May 14, 2022, any infrastructure project receiving federal funding, including any credit assistance provided under the WIFIA program, must source their iron, steel, manufactured products and construction materials from the United States. The Corps is committed to successful implementation of BABAA to build a resilient supply chain and manufacturing base for critical infrastructure products. As a result, the Corps will administer the BABAA requirements for WIFIA credit assistance consistent with existing law. The Corps will consider the need and public interest for waivers of the BABAA requirements following the procedures outlined in the IIJA.

Several commenters requested clarification regarding the program's disbursement requirements and procedures. Two commenters also expressed concern that disbursements would not be available until a project entered civil construction and requested a detailed description of expressly ineligible costs. Prior to any disbursement, all conditions precedent to funding specified in the credit agreement must be satisfied. The borrower may begin submitting eligible project costs for reimbursement following closing. To receive a disbursement, borrowers must submit a requisition form that will require borrowers to verify continued compliance with the loan agreement. The requisition form includes certification that the disbursements are being made against incurred eligible project costs and in accordance with the terms of the credit agreement.

It may also include confirmation that there have been no changes to the construction plan or any material events and that the representations and warranties included in the loan agreement are still true and correct, among other items. Each request for disbursement must include supporting documentation to ensure that the Corps can evaluate the costs for program eligibility, project allocability, and reasonableness. The Corps cannot provide a complete description of expressly ineligible costs because eligibility is dependent on a number of factors such as whether the costs were incurred through federally compliant contracts.

Costs incurred prior to civil construction (such as for project planning and design) are eligible for disbursement regardless of the project's current stage of development at the time of the disbursement request consistent with the construction plan identified in the credit agreement. Borrowers may request WIFIA funds disbursements as frequently as once per month. The Corps' goal is to have disbursement available in the borrower's account 15 calendar days after receiving a disbursement request.

One commenter suggested that the Corps should require all credit assistance applicants to have an Emergency Action Plan (EAP) to be eligible for credit assistance and submit an updated EAP every 10 years. As evidence for the recommendation, the commenter noted that the Federal Emergency Management Agency (FEMA) requires all applicants for the Rehabilitation of High Hazard Potential Dam Grant Program (RHHPDGP) to have an EAP.

In Title IV, Section 5006 of Public Law 114-322, the Water Infrastructure Improvements for the Nation Act (WIIN) which authorized the Rehabilitation of High Hazard Potential Dam Grant Program, Congress made an EAP approved by the relevant state dam safety agency a condition for receipt of grant assistance. Consequently, the requirement for an EAP to be eligible for HHPDGP is due to legislation and not regulation or policy alone. Conversely, in legislation authorizing the WIFIA program and the appropriations acts funding the WIFIA program to date, Congress has not included this requirement as a condition for eligibility for WIFIA credit assistance. As a result, the Corps will rely on any applicable State requirements and will not adopt the proposed change.

One commenter requested that the Corps explore ways to provide access to WIFIA credit assistance to private individuals who may own non-Federal dams that may pose a hazard to downstream communities. While Corps acknowledges the importance of mitigating the risks posed by dams owned by private individuals, Section 3904 of Title 33 of the U.S. Code defines entities that are eligible for WIFIA assistance and does not include private individuals as an eligible borrower. However, privately held corporations remain eligible for WIFIA credit assistance.

Two commenters expressed concerns about the need for the Corps to mitigate the burden of project level reviews to an appropriate level. The Corps notes that technical documents will not be provided to any Corps Divisions or Districts for review and approval; all reviews necessary to complete the loan underwriting and construction oversight process will be completed by the WIFIA program. Each WIFIA project will be required to meet applicable construction and regulatory standards of the State in which the project is located.

The Corps does not anticipate requiring additional reporting beyond annual project performance report (public benefits report), audited financial statements, and construction reports identified in this rule. For loans and/or projects which represent unusual risk, the Corps will retain the ability to augment its standard reporting requirements while recognizing the need to mitigate unnecessary burden on borrowers.

An additional commenter asked the Corps to clarify how it intends to determine the project is economically justified, such as through a benefit/cost ratio calculation. Under the rule, “economically justified” means that the anticipated benefits will exceed the costs. Although OMB Circular A-94 does not apply to non-Federal recipients of loans and, to be accordance with the criteria outlined in 85 FR 39189, all projects funded under this rule are not Federal activities, A-94 provides useful guidance on measuring benefits and costs. Consistent with that guidance, Corps will determine whether collateral provided for the CWIFP credit assistance, which functions as a proxy for the value beneficiaries receive from the project, exceed applicable project costs.

The Federal Credit Reform Act of 1990 (FCRA), Title V of Public Law 101-508, codified at 2 U.S.C. 661-661f, requires that agencies estimate the long-term cost of providing direct loans and loan guarantees on a net present value basis and requires that agencies have the necessary budget authority appropriated before entering into an obligation for a loan. To date, $76 million in appropriations have been provided to the Corps for the cost of credit assistance for non-Federal dams under WIFIA.

Section 3904 of Title 33 of the U.S.C., defines entities that are eligible for WIFIA assistance. To be eligible under this program, a borrower must be one of the following:

1. A corporation;

2. A partnership;

3. A joint venture;

4. A trust;

5. A State, or local governmental entity, agency, or instrumentality;

6. A Tribal government or consortium of Tribal governments; or

7. A State infrastructure financing authority.

While Section 3904(5) includes “Federal” entities in the list of entities that are eligible to receive assistance, this program will not issue credit assistance to “Federal” entities or activities because recording credit assistance to a Federal entity or activity on a net present value basis would be inconsistent with 31 U.S.C. 1501, existing Government-wide guidance, and a cash budget. As required by Title 1, Division D of the Consolidated Appropriations act of 2021 and Division J, Title III of the Infrastructure Investment and Jobs Act, the credit assistance program covered by this final rule must be administered in accordance with the WIFIA criteria published on June 30, 2020 (85 FR 39189). Please review the criteria published at 85 FR 39189 for additional background and information regarding project eligibility.

Section 3905 of Title 33 of the U.S.C. defines projects eligible for assistance. To be eligible under this program, a project must fall under one of the following four categories:

1. Safety projects to maintain, upgrade, and repair dams identified in the National Inventory of Dams with a primary owner type of State, local government, public utility, or private; and which meet the statutory requirements of Title 1, Division D of the Consolidated Appropriations Act 2021 and be in accordance with the criteria outlined in 85 FR 39189.

2. Any project that meets the criteria under C.1. above must also be a project for flood damage reduction, hurricane and storm damage reduction, environmental restoration, coastal or inland harbor navigation improvement, or inland and intracoastal waterways navigation improvement that the Secretary determines is technically sound, economically justified, and environmentally acceptable, 7 including—

a. A project to reduce flood damage;

b. A project to restore aquatic ecosystems;

c. A project to improve the inland and intracoastal waterways navigation system of the United States; and

d. A project to improve navigation of a coastal inland harbor of the United States, including channel deepening and construction of associated general navigation features.

3. Acquisition of real property or an interest in real property for a project that meets the criteria under C.1. above—

a. If the acquisition is integral to a project eligible for WIFIA credit assistance; or

b. Pursuant to an existing plan that, in the judgment of the Secretary, would mitigate the environmental impacts of water resources infrastructure projects that are otherwise eligible for WIFIA credit assistance.

4. A combination of projects, each of which is eligible for WIFIA credit assistance, for which a single application is submitted and which is secured by a common security pledge.

Title I, Division D of the Consolidated Appropriations Act, 2021 and Division J, Title III of the Infrastructure Investment and Jobs Act limited use of the appropriated funding to safety projects to maintain, upgrade, and repair dams identified in the National Inventory of Dams with a primary owner type of state, local government, public utility, or private. Dam removal is an eligible project under this authorization.

In addition, as noted above, Title I, Division D of the Consolidated Appropriations Act, 2021 stipulates that “none of the direct loans or loan guarantee authority made available under this heading shall be available for any project unless the Secretary and the Director of the Office of Management and Budget have certified in advance in writing that the direct loan or loan guarantee, as applicable, and the project comply with the criteria . . .” published in the Federal Register on June 30, 2020 (85 FR 39189).

Section 3906 of Title 33 of the U.S.C. defines eligible activities with respect to eligible projects as the following four types of project costs:

1. The cost of development-phase activities, including planning, feasibility analysis (including any related analysis necessary to carry out an eligible project), revenue forecasting, environmental review, permitting, preliminary engineering and design work, and other pre-construction activities.

2. The cost of construction, reconstruction, rehabilitation, and replacement activities.

3. The cost of the acquisition of real property or an interest in real property (including water rights, land relating to the project, and improvements to land), environmental mitigation, construction contingencies, and acquisition of equipment; and

4. The cost of capitalized interest necessary to meet market requirements, reasonably required reserve funds, capital issuance expenses, and other carrying costs during construction.

In addition to the statutory project cost eligibility requirements listed above, the Corps program allows for fees associated with obtaining WIFIA funds to be considered as part of eligible project costs, as authorized by 33 U.S.C. 3908(b)(7), limited to the Application, Transaction Processing, and Servicing fees as described below in Section IV.H (Fees). Proceeds from the WIFIA credit assistance shall not be utilized to provide cash contributions to the Corps for project-related costs, except for such fees as allowed by 33 U.S.C. 3908(b)(7). The “Optional Credit Subsidy Fee” is not an eligible cost.

WIFIA contains the following requirements, as paraphrased below, which are restated in the final rule:

• Public or private applicants for credit assistance would be required to submit applications to the Corps in order to be considered for approval (33 U.S.C. 3903).

• Project financing would be required to be repayable, in whole or in part, from State or local taxes, user fees, or other dedicated revenue sources that also secure the senior project obligations of the project; to include a rate covenant, coverage requirement, or similar security feature supporting the project obligations; and may have a lien on revenues subject to any lien securing project obligations (33 U.S.C. 3908 (b)(3)).

• In the case of a project that is undertaken by an entity that is not a State or local government or an agency or instrumentality of a State or local government, or a Tribal government or consortium of Tribal governments, the project that the entity is undertaking would be required to be publicly sponsored. Public sponsorship means that the obligor can demonstrate, to the satisfaction of the Secretary, that it has consulted with the affected State, local, or Tribal government in which the project is located, or is otherwise affected by the project, and that such government supports the proposed project. Support could be shown by a certified letter signed by the approving municipal department or similar agency, mayor or other similar designated authority, local ordinance, or any other means by which local government approval can be evidenced (33 U.S.C. 3907(a)(4)).

• To be eligible for financing, a prospective borrower would be required to have developed an operations and maintenance plan that identifies adequate revenues to operate, maintain, and repair the project during its useful life (33 U.S.C. 3907(a)(6)).

Additionally, projects receiving WIFIA credit assistance would not be able to use that assistance for operations and maintenance activities.

For each fiscal year that Congress appropriates funds for credit assistance under this program, the Corps will provide detailed instructions for submitting preliminary applications and applications, as well as the due dates for submissions. It will advise prospective borrowers of the estimated amount of funding available to support Federal credit instruments and information required in a preliminary application and application not detailed in this rule.

The application process has two steps. The first step requires the submission of a preliminary application document, which has been submitted to OMB for approval under OMB Control Number 0710-0026, titled “Corps Water Infrastructure Financing Program (CWIFP) Preliminary Application.” No fees are established for this preliminary application step. The Corps will review these preliminary applications and determine which applicants will be invited to continue in the application process and submit applications. An invitation to submit an application does not imply an obligation by the Corps to enter into a Loan Agreement or Loan Guarantee Agreement. Those applicants that choose to submit an application will be required to include an application fee, if applicable. Consequently, the Corps anticipates that the fees established in this rule will only apply to those projects. See Paragraph III.H. below for more information on fees.

The purpose of the preliminary application is to provide the Corps with the information necessary to determine whether a given project is eligible under the WIFIA statute, appropriations, and regulations. This serves to provide the Corps with sufficient information to evaluate preliminary applications and to invite prospective borrowers to submit applications.

The purpose of the application is to provide the Corps with materials necessary to underwrite the proposed WIFIA assistance. The application will require similar information to the preliminary application, but with a greater level of detail and more fully developed information in support of the applicant's proposal.

The application must include sufficient information to allow the Secretary to make the determination required by 33 U.S.C. 3905(1) that the project is technically sound, economically justified, and environmentally acceptable. The information required to support this determination will depend on various factors, including but not limited to the purpose and scope of the activity proposed for WIFIA assistance. Applicants for WIFIA assistance should refer to any prior analysis that could assist the Corps in confirming the determination required by 33 U.S.C. 3905(1). The Corps does not expect the application to provide the level of analysis required for traditional Corps feasibility studies. Applicants should provide information to enable the Corps to determine that the project will meet all applicable engineering, safety, and other technical standards; that it is economically justified; and that it will satisfy all necessary environmental requirements to include requirements associated with the Corps Programmatic Environmental Assessment prepared for this rule under the National Environmental Policy Act (NEPA). In addition, the application must include a description of the extent to which the project financing plan includes any other form of Federal assistance (including grants), in addition to WIFIA credit assistance. This information directly relates to the total Federal risk exposure across all Federal programs and will require information on all possible sources of Federal support. The Corps will also be coordinating with other Federal agencies, such as the Federal Emergency Management Agency (FEMA), on other Federal programs that may be used to fund or finance projects under this rule. Additional information regarding the requirements for an applicant's submittal would be described in the application materials.

The application also should address any connection between the proposed WIFIA assistance and other Federal activities. In order for non-Federal flood risk management projects to be eligible for future Federal repair or rehabilitation assistance following storm events under 33 U.S.C. 701n, applicants would need to satisfy requirements from that program. Applicants can consult with the Corps WIFIA office to assist in understanding whether activities proposed for WIFIA assistance might implicate other Federal authorities and funding.

As provided in WIFIA, the Secretary must determine that every funded project is creditworthy. 33 U.S.C. 3907(a)(1). An overarching goal of the creditworthiness determination process is to ensure that each project that is ultimately offered credit assistance advances the WIFIA program's mission while providing a level of risk exposure that is acceptable to the Corps. Therefore, the WIFIA program will evaluate applications for financial assistance based on credit risks over the repayment period of the WIFIA credit assistance. As required by 33 U.S.C. 3907(a)(1), the creditworthiness determination will be based on a review of the following:

• Terms, conditions, financial structure, and security features of the proposed financing;

• Dedicated revenue source(s) securing the financing;

• Financial assumptions upon which the project is based; and

• Financial soundness and credit history and outlook of the borrower.

Sections 3908(b)(7), 3909(b), and 3909(c)(3) of 33 U.S.C. allow the Corps to collect user fees from applicants to cover some or all of the costs associated with administering the program. The Corps is establishing fees associated with the provision of Federal credit assistance under the WIFIA program. As specified under 33 U.S.C. 3908(b)(7), 3909(b), and 3909(c)(3), Congress authorizes the Corps to charge fees to recover all or a portion of the Corps' cost of providing credit assistance and the costs of conducting engineering reviews and retaining expert firms, including financial and legal services in the field of municipal and project finance to assist in the underwriting and servicing of Federal credit instruments. The Corps is establishing an application fee, transaction processing fee, annual servicing fee, optional credit subsidy fee, and enhanced monitoring fee to cover these costs to the extent not covered by Congressional appropriations. As described in greater detail below, the types of fees the Corps will charge are consistent with other Federal credit programs.

The rationale for establishing fees associated with the provision of credit assistance is to cover the Corps' cost of administering the program to the extent these costs are not covered by appropriations. To effectively administer the program, the Corps will incur both internal administrative costs (staffing, program support contracts, and other costs) as well as costs associated with conducting engineering reviews and retaining expert firms, including financial and legal services in the field of municipal and project finance, to assist in the underwriting of the Federal credit instrument.

The Water Infrastructure Improvements for the Nation Act of 2016, Public Law 114-332, in section 5008(c), amended WIFIA to allow, at the request of an applicant, the financing of some fees as eligible costs as defined below. Borrowers are permitted to finance eligible fees as part of the WIFIA credit assistance.

The Corps will require a non-refundable application fee for each project that is invited to submit an application (second step following submission of a preliminary application) for credit assistance under WIFIA, if applicable. The application fee will be due upon submission of the application. This application fee supports the Corps' planning efforts by helping to ensure that the program invites only the appropriate number of applicants that it has the capacity to fund. In the event that the prospective borrower has not completed and submitted a full application within one-year of the Corps' invitation to apply for credit assistance, the prospective borrower must submit to the Corps a request for extension prior to the expiration year that sets forth the prospective borrower's rationale for an extension, summarizes the prospective borrower's progress achieved on the project to date, and provides an updated schedule of project development activities, including submission of the WIFIA application. The Corps may grant this extension after evaluating the progress of the prospective borrower's application and its readiness to apply.

The application fee will be waived for applications from public entities for projects serving small communities or economically disadvantaged communities. See Paragraph III.I. in the regulatory text for the definitions of small communities and economically disadvantaged communities for the purpose of this credit assistance program. For all other project applications, the application fee is $25,000. This $25,000 application fee represents an amount equal to 0.125 percent of the minimum threshold project cost ($20 million, 33 U.S.C. 3907(a)(2)(A)), which the Corps considers to be sufficient to begin the financial, engineering, and legal analysis of the project while providing assurance that the applicant intends to proceed to closing. The Corps will undertake significant costs to evaluate applications and hire expert firms for underwriting and considers an application fee essential for applicants to show good faith in applying for credit assistance, to help cover the agency's administrative costs in processing applications, and to ensure effective administration of the program. The application will not be reviewed without fee payment. The Corps will only invite projects to submit an application and application fee if the Corps believes there is a reasonable expectation that the project could receive financing. However, an invitation to submit an application does not guarantee that a project will proceed to financial close.

For projects invited to submit an application, the Corps will require payment of transaction processing fees at the time of closing, or at the time the application is withdrawn or denied (in the event the project does not proceed to closing). The proceeds of any such fees will be used to pay the remaining portion of the Corps' cost of processing the application for credit assistance, including the costs of conducting engineering reviews and retaining expert firms to assist in underwriting, drafting and negotiating the terms of the Federal credit instrument. In procuring the services of third-party firms, the Corps may issue task orders with $0 funding ( i.e., no Federal funds). In such situations, at the direction of the Corps, payments to the contractor for services will be paid (i) by or on behalf of the Corps or (ii) directly by the applicant for services rendered in accordance with the terms of a sponsor payment letter/agreement executed by the applicant (or its affiliate) and the contractor. In all instances, when a contractor is engaged to represent the Corps or its representative on a WIFIA matter and is paid by the applicant (or its affiliate), the Corps or its representative, as applicable, will remain the client of the contractor.

The Corps estimates these costs would generally be in the range of approximately $125,000 to $300,000 per project, with the expectation that more complex projects could exceed this range. However, prior to the transaction processing fees being incurred, the Corps will develop a more precise estimate based on its understanding of the project and associated financial and legal structure. The application fee described above will be credited to the transaction processing fee. For example, if the total transaction processing fees are $300,000 and the applicant pays $25,000 with the application, $275,000 will be due at closing, or earlier if the project does not proceed to closing, e.g., if the application is withdrawn or denied. The total transaction processing fee for each project will be set based on the costs incurred by the Corps for that specific project. Due to the nature of the transaction processing, the amount is expected to vary among applicants. This variation reflects the amount of time taken to process a loan, which may not directly correlate with the size of the loan. More complex transactions with lengthy negotiations will have higher costs.

The Corps may waive a portion of the fee for public applicants if appropriations are available to pay for the Corps' cost of administering the WIFIA program and to pay for loan processing. Funds appropriated to the program may pay for the administration of the program, including internal administrative costs of staffing, program support contracts (separate from the expert services described previously), and other internal administrative needs.

To the extent appropriations are available in excess of those needed for the Corps' internal administrative costs, the Corps may use the remaining available administrative allowance (less any amount needed for future years' administration) to reduce fees. The Corps may allocate additional administrative funds by reducing fees by an equal amount per loan for those projects serving economically disadvantaged communities, with public applicants. If additional administrative funds remain, the Corps may reduce fees by an equal amount for each remaining loan, with public applicants.

The Corps will charge an annual servicing fee after closing of the loan. The fee will be dependent upon the costs of servicing the credit instrument ( e.g., collecting and processing loan principal and interest payments) as determined by the Secretary. Such fees will be set at a level to enable the Corps to recover all or a portion of the costs to the Federal Government of servicing WIFIA credit instruments and will be determined at the time of closing. The Corps expects such fees to range from $10,000 to $50,000 annually per loan and to be adjusted for inflation.

The Corps may charge a fee, with agreement of the applicant, to reduce the budget authority required to fund the credit instrument. The Corps anticipates scenarios where assessing such a fee will provide flexibility to allow an applicant to “buy down” the budget authority required for the credit instrument. This could allow an applicant to proceed to approval if sufficient budget authority would not otherwise be available. Such a fee will only be charged upon agreement by an applicant and shall not be considered an eligible project cost. Utilization of this fee will only be in rare instances.

The Corps may charge a fee to cover extraordinary expenses if a borrower experiences difficulty relating to technical, financial, or legal matters or other events ( e.g., engineering failures or financial workouts) that require the Corps to incur time or expenses beyond standard monitoring. The Corps will be entitled to payment in full from the borrower of additional fees in an amount determined by the Corps and of related fees and expenses of its independent consultants and outside counsel that are incurred directly by the Corps and not paid directly by the borrower. Such fees shall not be considered an eligible project cost.

Two types of credit instruments are permitted under WIFIA secured (direct) loans and loan guarantees. The second credit instrument under 33 U.S.C. 3908 (e), referred to as loan guarantees are defined under the Federal Credit Reform Act of 1991 as a binding agreement by a Federal agency to make a loan guarantee when specified conditions are fulfilled by the borrower, the lender, or any other party to the guarantee agreements.

Statutory requirements applicable to this credit instrument appear at 33 U.S.C. 3908 and 3909. Additional Terms and conditions for loans and loan guarantees will be negotiated between the Corps and successful applicants. While the extent of the loan guarantee will vary based on the financing requirements and risk characteristics of a transaction, loan guarantees are not expected to cover more than 80% of any third-party debt obligation. Any 100% guaranteed obligation(s) must be financed by the Federal Financing Bank (FFB) unless a waiver is granted by Treasury.

In general, WIFIA limits the amount of credit assistance that may be provided to a project to 49% or less of reasonably-anticipated eligible project costs. However, the statute authorizes the Corps to use up to 25% of its budget authority to provide credit assistance to one or more projects of up to 80% (statutory cap on Federal participation) of the total costs of any given project. The 80% statutory cap on Federal participation would be determined by adding the total loan proceeds, direct appropriations, grants, or other applicable Federal funding. Following credit assistance issuance, future direct appropriations, grants, or other applicable Federal funding may be modified to maintain compliance with the 80% statutory cap. Note, however, that projects receiving direct Federal appropriations or other Federal funding may not be eligible to receive WIFIA credit assistance based on the eligibility criteria outlined in this rule as well as at 85 FR 39189, as they may be determined to be Federal in nature. The Corps would limit its budget authority to extending credit assistance to eligible entities for those entities' use in directly carrying out activities eligible for assistance under 33 U.S.C. 3906. The Corps would not extend credit assistance or allow loan proceeds to be used by any entity to provide cash contributions to the Corps for project related costs, except for such fees as allowed by 33 U.S.C. 3908(b)(7). The Corps would generally use its budget authority to provide credit assistance for greater than 49% of eligible project costs to projects serving economically disadvantaged communities that would otherwise not be able to obtain WIFIA credit assistance. For the purposes of this program, the Corps is defining economically disadvantaged communities as those that meet one of the following criteria: (a) low-income, (b) unemployment rate above national average, (c) Indian country as defined in 18 U.S.C. 1151 or in the proximity of an Alaska Native Village, (d) U.S. Territories, or (e) identified as disadvantaged by the Climate and Economic Justice Screening Tool (developed by the Council on Environmental Quality). 8 The implementation of this definition may be modified as appropriate in response to updated tools and resources as they become available.

Additionally, the Corps may use its budget authority to provide credit assistance for greater than 49% of eligible project costs when a project would be unable to proceed to closing without such additional assistance due to unforeseen events. 33 U.S.C. 3912. Unforeseen events that could prevent a project from going to closure may include: unexpected loss of other sources of financing, increased cost of capital, or acts of nature. In such an event, the Corps would reexamine the creditworthiness of the project and only provide funding if the project can still meet all requirements of the program.

Costs incurred, and the value of any integral in-kind contributions made before receipt of credit assistance may be considered in calculating eligible project costs upon approval of the Secretary. Such costs and integral in-kind contributions must be directly related to the development or execution of the project and must be eligible project costs per 33 U.S.C. 3907(a)(2). In addition, such costs, excluding the value of any integral in-kind contributions, are payable from the proceeds of the Federal credit instrument and would be considered incurred costs. Capitalized interest on the Federal credit instrument would not be eligible for calculating eligible project costs.

The Corps would not obligate funds in the form of a loan or loan guarantee for a project prior to (1) to issuance of a determination that the Federal action is eligible for a Categorical Exclusion, (2) issuance of a Finding of No Significant Impact, or (3) issuance of a Record of Decision.

The credit agreement would include the anticipated schedule for loan disbursements. However, actual disbursements would be based on costs incurred in accordance with the approved construction plan. This requirement would protect the Corps in the event of non-performance.

As required by section 3908(b)(4) of Title 33 of the U.S.C., the interest rate on a secured loan would be equal to or greater than the yield on U.S. Treasury securities of comparable maturity on the date of execution of the credit agreement. The base interest rate can be identified through use of the daily rate tables published by the Bureau of the Fiscal Service for the State and Local Government Series (SLGS) investments. The WIFIA program would estimate the yield on comparable Treasury securities by adding one basis point to the SLGS daily rate with a maturity that is closest to the weighted average loan life of the WIFIA credit assistance.

As allowed by statute at 33 U.S.C. 3908(c)(2), scheduled loan repayments of principal and interest on a secured loan or loan guarantee shall commence not later than 5 years after the projected date of substantial completion of the project at the time of execution of the Loan Agreement or Loan Guarantee Agreement, as determined by the Secretary. However, scheduled loan repayments of principal and interest on a secured loan or loan guarantee to a State infrastructure financing authority would commence not later than 5 years after the date on which amounts are first disbursed. The final maturity of the credit agreement shall be in no instance later than 35 years after the projected date of substantial completion of the project at the time of execution of the Loan Agreement or Loan Guarantee Agreement.

As required by section 3908(b)(5) of Title 33 of the U.S.C., the final maturity date of a secured loan would be the earlier of the date that is (1) 35 years after the date of substantial completion of the project, as determined by the Secretary, or (2) the useful life of the project, as determined by the Secretary. However, the final maturity date of a secured loan to a State infrastructure financing authority would be not later than 35 years after the date on which amounts are first disbursed. In determining the useful life of the project, for the purposes of establishing the final maturity date of the Federal credit instrument, the Secretary would consider the useful economic life of the asset(s) being financed, as required under OMB Circular A-129. 9

As required by statute, the Corps' Federal credit instrument may have a junior claim to other debt issued by the obligor in terms of its priority interest in the project's pledged security. However, the Corps' claim on pledged security would not be subordinated to the claims of any holder of the project obligations in the event of a bankruptcy, insolvency, or liquidation of the obligor of the project. The Corps' interest may include collateral other than pledged revenues.

The Corps, as required by 33 U.S.C. 3907(a)(1)(D)(i), would require each applicant to furnish a preliminary rating opinion letter as part of the application process. The applicant would be responsible for identifying and approaching one or more Nationally Recognized Statistical Rating Organizations (NRSROs) to obtain such a letter. This letter must indicate that the applicant project's senior obligations (which may be the Federal credit instrument), have the potential of attaining an investment-grade rating. As required by Section 3907 (a)(1)(D)(ii) of the WIFIA, 33 U.S.C. 3901 et seq., the Corps would require each applicant to provide, prior to final acceptance and financing of the project, final rating opinion letters from at least two rating agencies indicating that the senior obligations of the project have an investment-grade rating. If the Federal credit instrument is the project's senior obligation, these ratings must apply to all project obligations with claims at parity to that of the Federal credit instrument on the security pledged to the Federal credit instrument, including the Federal credit instrument. The Corps would also require as a matter of policy, prior to final execution of the loan agreement or loan guarantee agreement, that the applicant provide at least one final rating opinion letter which provides a credit rating on the final negotiated direct loan or loan guarantee that does not include consideration of the full faith and credit of the United States of America.

Recipients of WIFIA credit assistance would be required to comply with Federal requirements applicable to all federally-financed projects. The final rule provides a non-exhaustive list of these requirements in Section V (Statutory and Executive Order Reviews).

Recipients of WIFIA credit assistance would be required to comply, per 33 U.S.C. 3914(a), with American Iron and Steel (AIS) requirements, which requires that if any WIFIA assistance is provided for construction, alteration, maintenance, or repair of a project, all of the iron and steel products used in the project must be produced in the United States. These products include lined or unlined pipes and fittings, manhole covers and other municipal castings, hydrants, tanks, flanges, pipe clamps and restraints, valves, structural steel, reinforced precast concrete, and construction materials. 33 U.S.C. 3914(b). This requirement applies to all iron and steel products used in the project, not only those paid for with proceeds from the WIFIA credit assistance.

The WIFIA requires recipients of WIFIA credit assistance to pay all laborers and mechanics employed by contractors or subcontractors' wages at rates not less than those prevailing for the same type of work on similar construction in the immediate locality, as determined by the Secretary of Labor. 33 U.S.C. 3909(h) (cross-referencing Title VI of the Federal Water Pollution Control Act); 33 U.S.C. 1372. This is commonly referred to as Davis-Bacon wage requirements. This requirement applies to all laborers and mechanics working on a project, not only those paid from proceeds of the WIFIA credit assistance.

The Corps will require, at a minimum, that any recipient of WIFIA credit assistance must make available to the Corps an annual project performance report and audited financial statements to the Corps within the time period stated in the credit agreement following the recipient's fiscal year-end for each year during which the recipient's obligation to the Federal Government remains in effect. The Corps may conduct periodic financial and compliance audits of the recipient, as determined necessary by the Corps. The specific credit agreement between the recipient of credit assistance and the Corps may contain additional reporting requirements. This would be a necessary and important requirement in order to allow the Corps to provide proper and sufficient oversight of federally-financed projects.

Congress enacted WIFIA with the goal of accelerating investment in our nation's water infrastructure by providing credit assistance to creditworthy projects of major importance to the water sector. Only eligible projects will be selected. The project priorities established under this rule are as follows: Projects serving small, rural communities and economically disadvantaged communities and projects serving Tribal communities.

The program's goal is to enable local investment in projects that enhance community resilience to flooding, while supporting the Corps' policy initiatives by prioritizing the projects listed above.

Section 3907(b)(2) of Title 33 of the U.S. Code establishes 11 criteria, at a minimum, for selecting among eligible projects to receive credit assistance, but does not prohibit the Corps from identifying additional selection criteria and requirements. As such, the Corps will utilize the following 12 selection criteria.

1. The extent to which the project is nationally or regionally significant, with respect to the generation of public benefits, such as—

a. The reduction of flood risk;

b. The improvement of water quality and quantity, including aquifer recharge;

c. The protection of drinking water, including source water protection;

d. The support of domestic and international commerce; and

e. The restoration of degraded aquatic ecosystem structures.

2. The extent to which the project financing plan includes public or private financing, in addition to WIFIA credit assistance.

3. The likelihood that WIFIA credit assistance would enable the project to proceed at an earlier date than the project would otherwise be able to proceed.

4. The extent to which the project uses new or innovative approaches.

5. The amount of budget authority required to fund the WIFIA Federal credit instrument.

6. The extent to which the project—

a. Protects against extreme weather event, such as floods or hurricanes; or

b. Helps maintain or protect the environment.

7. The extent to which a project serves regions with significant clean energy exploration, development, or production areas.

8. The extent to which a project serves regions with significant water resource challenges, including the need to address—

a. Water quality concerns in areas of regional, national, or international significance;

b. Water quantity concerns related to groundwater, surface water, or other water sources;

c. Significant flood risk;

d. Water resource challenges identified in existing regional, State, or multistate agreements; or

e. Water resources with exceptional recreational value or ecological assistance.

9. The extent to which the project addresses identified municipal, State, or regional priorities.

10. The readiness of the project to proceed toward development, including a demonstration by the obligor that there is a reasonable expectation that the contracting process for construction of the project can commence not later than 90 days after the date on which a Federal credit instrument is obligated for the project under WIFIA.

11. The extent to which WIFIA credit assistance reduces overall Federal contributions to the project.

12. The extent to which the project serves economically disadvantaged communities and spurs economic opportunity for, and minimally adversely impacts, disadvantaged communities and their populations.

Criterion (5) is directly related to a project's creditworthiness, financial viability, and the Corps' capacity to make a loan. This criterion would be used to assess projects separate from the assessment under the other selection criteria. In particular, it would inform the Corps' ability to provide funding in an equitable manner to prospective borrowers seeking financing. The amount of budget authority used by a project would be an important consideration when selecting projects. The greater the budget authority used by a project, which is a function of both project size and creditworthiness, the less budget authority is available to finance other projects. Selecting projects would be at the discretion of the Secretary who may decide that a project that uses a disproportionally high level of budget authority provides essential public safety benefits and deserves greater consideration.

The Corps added criterion (12) to reflect the Corps' intention to address the needs of economically disadvantaged communities where obtaining financing for critical water resources infrastructure presents additional difficulties and to further current Administration priorities as expressed in E.O. 13985, E.O. 13990, and E.O. 14008. 10 While the creditworthiness requirement, as well as the requirement to obtain an investment-grade rating on senior obligations, may be a challenge for economically disadvantaged communities, the flexibility and low interest rates of the Federal credit instrument may improve overall financial feasibility and burden to the community.

E.O. 12866, “Regulatory Planning and Review,” and E.O. 13563, “Improving Regulation and Regulatory Review,” require that significant regulatory actions be submitted for review to the Office of Information and Regulatory Affairs (OIRA) in OMB. These orders also direct agencies to assess the costs and benefits of available regulatory alternatives and, if the regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has been determined significant under E.O. 12866. In accordance with E.O. 12866 and E.O. 13563, this significant regulatory action was submitted to OMB for review. The costs to the public of implementing the Corps WIFIA program, are demonstrated in Section D. Regulatory Flexibility Act below. The costs to large and small entities will be the same and include: the fees charged to applicants and loan recipients, as well as any remaining costs of administering the program that are not fully covered by the user fees and instead require support by Federal appropriations. The total estimated costs are anticipated to be between approximately $175,000 and $500,000, plus an annual cost between $20,000 and $60,000. The benefits of implementing the Corps WIFIA program include: (1) the value of the benefits provided by non-Federal dam safety projects enabled by future the Corps WIFIA credit assistance (for example, flood damages prevented by dam safety improvement projects), and (2) the savings realized by the borrowers from the lower lending rates of the Corps WIFIA credit assistance. The transfer effects of this rule are the credit subsidy costs for loans or loan guarantees issued to support safety projects to maintain, upgrade, and repair non-federal dams. To date, Congress has appropriated $81 million in credit subsidy funding for the Corps WIFIA program.

Projects funded under this rule will meet or exceed applicable State, local, Tribal, and territorial standards for flood risk and floodplain management, as well as E.O. 11988, as amended by E.O. 13690, which directs Federal agencies to avoid, to the extent possible, long-and short-term adverse impacts associated with the occupancy and modification of the floodplain as well as to avoid direct and indirect support of floodplain development wherever there is a practicable alternative.

All projects under this rule are considered Federal actions under E.O. 11988 and thus, project applicants shall determine whether the proposed project will occur in the floodplain. If the project is located within the floodplain, the applicant must determine whether the action is critical or not and what floodplain standard to follow. The Corps will implement the Federal Flood Risk Management Standard (FFRMS), where appropriate, which is a flood standard established by E.O. 13690, that aims to build a more resilient future through the encouragement of consideration of current and future risk when Federal investments are used to build or rebuild near floodplains. The Corps will ensure unwise uses are avoided, where possible, including the increase or transfer of flood risks, resulting in adverse impacts to human health, safety, welfare, property, natural resources, or functions of floodplains. Further guidance on implementation of E.O. 11988 can be found in the Corps Engineer Regulation 1165-2-26 (30 March 1984). Further information on FFRMS can be found at https://www.iwr.usace.army.mil/Missions/Flood-Risk-Management/Flood-Risk-Management-Program/About-the-Program/Policy-and-Guidance/Federal-Flood-Risk-Management-Standard/.

It has been determined that 33 CFR part 386 does impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995. These reporting requirements have been submitted to OMB for approval under OMB Control Number 0710-0026, titled “Corps Water Infrastructure Financing Program (CWIFP) Preliminary Application.”

The RFA (5 U.S.C. 601) requires Federal agencies to consider the impact of regulations on small entities (small businesses, small organizations, or small government jurisdictions) in developing the proposed and final regulations. The RFA applies to the Corps WIFIA program rule since notice and comment are required as part of this rulemaking process.

Congress has provided authority and funding required for the Corps to make direct loans and loan guarantees for safety projects to maintain, upgrade, and repair dams identified in the National Inventory of Dams with a primary owner type of State, local government, public utility, or private. The Corps is establishing its new WIFIA program within the limitations set by Congress. This rule sets forth the policies and procedures that the Corps will use for receiving, evaluating, approving applications, and servicing and monitoring direct loans and loan guarantees.

Small entities that would be impacted by this rule will be non-Federal dam owners who own dams that require loans in excess of $20,000,000. This includes small government jurisdictions and organizations who voluntarily submit a preliminary application and are subsequently invited to submit a full application. The Corps will only invite potential borrowers to submit an application and application fee if the Corps believes there is a reasonable expectation that the project could receive financing. The application fee will be waived for communities governed by small governmental jurisdictions (small communities) and economically disadvantaged communities. The Corps anticipates receiving approximately 50 preliminary applications each year from eligible entities per year, five of which are expected to be considered small entities. This estimate is derived from EPA's WIFIA program, which has received 118 applications in total, of which 4 were from small communities, since the program's implementation 2017.

There are approximately 87,000 non-federally owned dams in the US (some of which are owned by the same entity). Of the NAICS classifications, the most applicable industry classification for these entities is the “Water Supply and Irrigation Systems” (NAICS code 221310) and the “Administration of Air and Water Resource and Solid Waste Management Programs” (NAICS code 924110). Information on these industries is provided in the tables below. Based on the U.S. Small Business Administration's (SBA) Size Standard/Small Entity Threshold and the average annual receipts, the Water Supply and Irrigation Systems industry has 3,283 firms that qualify as small entities. Small business size standards are not established for the Public Administration sector. According to the SBA, “concerns performing operational services for the administration of a government program are classified under the NAICS private sector industry based on the activities performed.” The closest private sector industry fulfilling the functions of potential the Corps WIFIA borrowers within the Public Administration sector is the “Water Supply and Irrigation Systems” subsector, therefore the small business estimates for that subsector are used in this analysis.

This final rule describes new prices established by the Governors of the United States Postal Service and submitted for review by the Postal Regulatory Commission in Docket Number CP2023-151 (see https://prc.gov ).

This final rule describes the international price changes for the following competitive international extra services and fees:

• International Certificate of Mailing.

• International Registered Mail.

• International Return Receipt.

• Customs Clearance and Delivery Fee.

New prices are or will be located on the Postal Explorer® website at https://pe.usps.com.

Depending on country destination and mail type, customers may add a variety of extra services to their outbound shipments and pay a variety of fees.

The Postal Service is increasing fees for certain competitive international extra services as follows:

• International Certificate of Mailing service: Prices for competitive international certificate of mailing service will be as follows:

This is a summary of the Commission's document, Order on Reconsideration, Report and Order and Memorandum Opinion and Order, ET Docket Nos. 20-36 and 14-165; FCC 23-24, adopted April 11, 2023 and released April 12, 2023. The full text of this document is available for public inspection and can be downloaded at: https://www.fcc.gov/document/fcc-adopts-white-spaces-order. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format) by sending an email to FCC504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Final Regulatory Flexibility Analyses. The Regulatory Flexibility Act of 1980 (RFA) requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the possible impact of the rule changes contained in this Order on Reconsideration, Report and Order and Memorandum Opinion and Order on small entities. As required by the RFA, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking ( NPRM ) (86 FR 38969, July 23, 2021). The Commission sought written public comment on the proposals in the NPRM, including comments on the IRFA. No comments were filed addressing the IRFA. Accordingly, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the possible impact of the rule changes contained in the document on small entities. The present FRFA conforms to the RFA and can be viewed under Appendix E of the item at: https://www.fcc.gov/document/fcc-adopts-white-spaces-order.

Paperwork Reduction Act. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506 (c)(4).

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

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

Additional Information. For additional information on this proceeding, contact Hugh L. Van Tuyl, Hugh.VanTuyl@fcc.gov, (202) 418-7506 or Syed Hasan, Syed.Hasan@fcc.gov, (202) 418-2454.

Unlicensed white space devices, which operate in the TV broadcast bands and portions of the 600 MHz band at locations where frequencies are not in use by licensed services or other protected entities, provide a variety of wireless services to the public. For example, Wireless internet Service Providers (WISPs) use fixed white space devices to provide internet connectivity in rural and underserved areas, including broadband data for schools and libraries, and on tribal lands. These devices obtain a list of available channels and data on power levels that may be used at their particular locations from databases administered by private entities approved by the Commission. Fixed and mobile white space devices must incorporate a geo-location capability and a means to access a database. Personal/Portable white space devices can either acquire a list of available channels via another white space device (Mode I), or themselves include geo-location and database access capabilities (Mode II). Once the white space device acquires channel and power information for its location, it selects an appropriate frequency from that list for transmitting.

Since 2008 when the Commission first authorized unlicensed white space device operations in the VHF and UHF TV bands, it has taken a number of further actions to make the white space rules more flexible while protecting incumbent services to facilitate improved broadband services to all Americans, particularly those in rural, Tribal and other underserved areas. Operating in the TV and 600 MHz Service bands allows these devices to operate over long distances at moderate power levels making them ideal for connecting these areas. The Commission continues to examine and modify, as needed, the white space device rules to maximize their efficiency and ensure that the American public continues to reap their benefits.

In its 2015 White Spaces Order, the Commission modified the technical rules for white space device operations in the spectrum that continues to be TV band spectrum following the incentive auction. It maintained the requirement for fixed and Mode II personal/portable devices to re-check the white space database at least once per day, but it also adopted additional requirements intended to better protect licensed wireless microphone operations registered in the white space database. Specifically, the Commission required the white space databases to “push” changes in channel availability information to fixed and Mode II personal/portable devices when a licensed wireless microphone is registered on a previously vacant TV channel (“push notifications”). In response to petitions for reconsideration arguing that the push notification requirement was overly burdensome and would need modifications to be effective, the Commission waived this requirement pending final action on the petitions for reconsideration. The Commission, acting on these petitions in 2022, removed the push notification requirement.

In the 2020 White Spaces Order and FNPRM, the Commission made targeted changes to the rules for white space devices in the TV bands to provide improved broadband coverage for American consumers in rural and underserved areas and improved access to narrowband Internet of Things (IoT) applications in all areas. Specifically, the Commission permitted higher equivalent isotropically radiated power (EIRP) and higher antenna height above average terrain (HAAT) for fixed white space devices in “less congested” geographic areas, i.e., those areas where at least half the TV channels in a device's band of operation are vacant. In addition, the Commission permitted higher power mobile device operation within defined geo-fenced areas in “less congested” areas and adopted rule changes designed to facilitate the development of new and innovative narrowband IoT services. Mobile devices, which operate within a bounded area at power levels comparable to fixed devices, were implemented as a new class of white space device. Narrowband devices are a subset of fixed or personal/portable devices, and are subject to technical rules which permit narrower channel bandwidths than other fixed and personal/portable devices. The Commission, consistent with existing rules, required narrowband and mobile devices to comply with a once daily database check.

Shure Incorporated filed a petition for reconsideration of two Commission decisions in the 2020 White Spaces Order and FNPRM, expressing concern about possible interference to wireless microphones. Shure believes that the 16-watt EIRP limit that the Commission permitted for geo-fenced mobile devices is too high and requests that this limit be reduced. Shure also objects to narrowband IoT devices being permitted to operate anywhere rather than limited to “less congested” areas, and wants the Commission to consider imposing additional requirements on narrowband IoT devices, such as requiring device operators to register the times, locations and technical operating parameters in the white space database.

The Commission sought comment in the 2020 White Spaces Order and FNPRM on whether it should allow the use of a terrain-based propagation model such as the Longley-Rice Irregular Terrain Model for determining white space channel availability. It sought to develop a record on whether or not to implement such a model, the effect use of such a model would have on white space device channel availability, how a terrain-based model could be implemented within the current white space device framework, the technical parameters necessary to use such a model for identifying available spectrum while protecting incumbents from harmful interference, and various database and device implementation issues.

Unlicensed proponents support permitting the use of terrain-based models by white space database administrators as an optional alternative to the current model that requires white space devices to comply with minimum separation distances outside the protected service contours of co-channel and adjacent channel TV stations. These parties generally argue that the current protection model can be overly conservative and that permitting terrain-based models would make more spectrum available for white space devices. However, TV broadcast interests oppose allowing the use of terrain-based models for determining white space channel availability due to concerns about interference to TV reception.

In its 2022 White Spaces Order and FNPRM, the Commission addressed the 2015 petitions for reconsideration of the push notification requirement. It replaced this requirement with a simpler requirement that all fixed and Mode II personal/portable devices, with the exception of narrowband devices, must comply with a more frequent database re-check interval (once per hour instead of once per day). The Commission did not apply the more frequent re-check requirement to the newer classes of mobile and narrowband white space devices established in 2020 but instead sought comment on what database re-check interval should apply to mobile and narrowband devices, e.g., once per hour, once per day, or some other interval. Commenters support an hourly database re-check interval for mobile devices, but are divided on the appropriate re-check interval for narrowband devices. Unlicensed interests support a once daily re-check interval for narrowband devices, while broadcasters and wireless microphone interests support an hourly re-check interval.

In this Order on Reconsideration, the Commission dismisses in part and, on alternative and independent grounds, denies Shure's petition for reconsideration and upholds the Commission's decisions allowing mobile devices to operate at 16 watts EIRP and permitting narrowband white space devices to operate in all areas rather than limiting them to “less congested” areas.

Background. In the 2020 White Spaces Order and FNPRM, the Commission established a new class of mobile white space device which is permitted to operate within defined geo-fenced areas in “less congested” areas. It permitted these mobile devices to operate with up to 16 watts EIRP, which is the same power level permitted for fixed devices in “less congested” areas. The white space database must determine channel availability in the geo-fenced area using the same separation distances applicable to 16 watt fixed devices, and the database may indicate a channel as being available for a mobile device only if it is available at the same power level throughout the entire geo-fenced area. A mobile device must incorporate a geo-location capability and check its location at least once every 60 seconds to determine whether it is still within the geo-fenced area where its operating channel is available. It must cease operation if it moves to within 1.9 kilometers of the boundary of the geo-fenced area or is outside of the area.

Shure filed a petition for reconsideration of this decision, expressing concern about possible interference to unlicensed wireless microphones. Shure believes that the 16-watt EIRP limit that the Commission permitted for geo-fenced mobile devices is too high and recommends that the power limit be reduced to 100 milliwatts, but in no case greater than 4 watts. It argues that the Commission's decision to authorize high power mobile white space devices is irreconcilable with a 2010 decision denying a request for higher power mobile operation and is not in the public interest. Shure also argues that the 2020 White Spaces Order and FNPRM misguidedly conflates the interference profiles of fixed and mobile white space devices, fails to consider substantial risks of harm to the many users of unlicensed wireless microphones in less congested areas, and indefensibly deviates from the Commission's consistent policy of exercising caution when introducing new white space services. Microsoft opposes Shure's petition, arguing that the Commission's decision to adopt a 16-watt EIRP limit for mobile devices operating within geo-fenced areas was well-reasoned, cautious, and consistent with precedent.

The Commission upholds its decision to allow the new class of mobile white space devices to operate at up to 16 watts EIRP. It disagrees with Shure's contention that this decision is irreconcilable with past Commission actions. The Commission made the 2010 decision that Shure cites in response to a Motorola petition for reconsideration of the 100 milliwatt power limit for personal/portable devices that the Commission established in 2008. Motorola had requested on reconsideration that the Commission establish a new class of vehicle mounted portable devices that could operate at up to four watts EIRP either under the control of a fixed device or by contacting a white space database to obtain a list of available channels, i.e., analogous to the operation of Mode I and Mode II personal/portable devices, but at a higher power level. The Commission denied Motorola's request, stating that personal/portable devices generally pose a greater risk of harmful interference to authorized operations than fixed devices because these devices will change locations, making identification of both unused TV frequencies and the devices themselves, if interference occurs, more complex and difficult. The Commission also noted the significant distances at which interference could occur from a personal/portable device operating at greater than 100 milliwatts would make it very difficult to identify a device that is the source of interference. However, the rules the Commission adopted in the 2020 White Spaces Order and FNPRM to allow higher power mobile devices are different from what Motorola previously suggested in that they contain requirements to minimize the likelihood of interference that were not considered in 2010.

Specifically, mobile devices must operate within a pre-defined (geo-fenced) area in which the white space database has determined in advance that at least one TV channel is available at all locations within the area. A channel is considered available for a mobile device if it meets the minimum required separation distances applicable to 16-watt fixed devices from all protected services in the TV bands, including TV broadcast services (full power, Class A and low power), licensed wireless microphones, land mobile radio services, and registered TV and broadcast auxiliary service receive sites. In addition to the geo-fencing requirement, mobile devices are limited to operation in “less congested” areas, which are defined as those areas where at least half the channels within the band of operation are vacant. For example, for devices operating in the UHF TV band (channels 14 through 36), a location is considered “less congested” if at least 12 of the 23 UHF TV channels are vacant. These two requirements, limiting the new class of higher power mobile device to areas with more available spectrum, substantially reduces the likelihood of harmful interference to authorized services in the TV bands, and enables all unlicensed devices, including other white space devices and unlicensed wireless microphones, to have an opportunity to access spectrum in the TV bands. Limiting operation of mobile devices to geo-fenced areas also addresses the concern the Commission previously noted about difficulties mobile devices may have in identifying vacant spectrum because the database will determine in advance which channels are available over an entire geo-fenced area. Thus, mobile devices will have flexibility to move freely within the area without causing harmful interference. The requirement for mobile devices to comply with the same separation distances as fixed devices, which have the same power limits as mobile devices, will ensure that mobile devices have no greater interference potential than fixed devices, and that services in the TV bands are adequately protected, even at the larger separation distances required from higher power mobile devices. The potential for mobile devices to interfere with unlicensed wireless microphones could in some cases be lower than fixed devices because mobile devices will generally operate with an antenna height above ground of no more than 4 meters due the necessity for vehicle clearance under bridges, power lines, trees, etc., so a mobile device signal could be attenuated by clutter such as buildings, trees and hills between a mobile device and a wireless microphone. In addition, because a mobile device may operate at the maximum 16 watts EIRP only if it uses a highly directional antenna with a gain of at least 12 dBi, which would require use of an electrical antenna beam steering system, mobile device operators may choose the less costly option of operating with an omnidirectional antenna which would have a lower gain, resulting in an EIRP of less than 16 watts.

The Commission disagrees with Shure's contention that the technical limits for mobile devices (maximum in-band power, antenna gain, power spectral density, adjacent channel and out-of-band emissions) require additional study by the Commission. Shure's petition focuses on the EIRP limit for mobile devices, which is a function of the in-band conducted power and antenna gain. While it requests a lower EIRP limit for mobile devices which the Commission declines to adopt, it does not request specific changes to the in-band conducted power and antenna gain limits and does not raise specific concerns about the suitability of any other technical limits, e.g., power spectral density, adjacent channel and out-of-band emissions, nor does it suggest any modifications to them. The Commission therefore makes no changes to the technical limits for mobile devices adopted in the 2020 White Spaces Order and FNPRM.

The Commission recognizes that the white space database does not have the capability to track the exact location of a mobile device, making it more difficult to identify an interfering mobile device than a registered fixed device. However, the database will contain information on the devices operating within the boundaries of each geo-fenced area, and can determine the TV channel(s) that are available within that area. This information could be used to help identify potentially interfering devices if the need arises. Because mobile devices will operate primarily within rural areas where it is likely that there will be only a single or very limited number of white space devices operating within a geo-fenced area, the Commission expects that it should not be difficult to find out which device is causing interference. Also, the rules require the white space database administrator to cease providing lists of available channels to specific white space devices upon request by the Commission. The Commission could request that the database administrator stop providing lists of available channels to all mobile devices operating within a specific geo-fenced area where interference has occurred. As discussed in the Report and Order below, the Commission is requiring mobile white space devices to re-check the database at least once per hour, which will ensure a device ceases operation quickly if the database ceases providing lists of available channels to it.

The Commission also recognizes Shure's concern about potential interference from high power mobile devices to unlicensed wireless microphones operating in “less congested” areas. The Commission does not believe it is appropriate to lower the mobile device power limit to a level ( e.g., 100 milliwatts EIRP) intended to allow coexistence with co-channel wireless microphones at short distances since that would severely limit the utility of mobile devices. The Commissions disagrees that Shure's example of a white space device made by Redline Communications, which purportedly has a range of 50 kilometers, supports a lower power limit for mobile devices. The web page Shure referenced for Redline is no longer active, but the power levels Shure cites for these devices (100 milliwatts for the CPE and 1 watt for the base unit) are conducted power levels, whereas the white space device power limits for both fixed and mobile devices are specified in terms of EIRP, i.e., a maximum of one watt conducted power plus antenna gain. Thus, the Redline devices could operate with high gain antennas to achieve an EIRP much higher than 100 milliwatts or 1 watt. Additionally, fixed devices can be mounted with both the transmit and receive antennas high above ground to clear terrain and other obstacles to achieve long range, whereas mobile device antennas are limited to approximately four meters above ground. The Commission expects that a device operating with 100 milliwatts or 1 watt of conducted power would require both high gain transmit and receive antennas and high antenna heights to achieve a range of 50 kilometers.

The Commission decided to limit operation of mobile devices to less congested areas to enable all unlicensed devices, including other white space devices and unlicensed wireless microphones, to have an opportunity to access spectrum in the TV bands. Because mobile devices operate only in “less congested” areas, there will, by definition, be multiple vacant TV channels available where unlicensed wireless microphones can operate, e.g., at least 12 in the UHF band. Thus, if mobile devices operate on one or even several TV channels in an area, there will still be multiple vacant channels available for use by unlicensed wireless microphones where mobile white space devices do not operate. As noted above, the white space database will contain information on geo-fenced areas used for mobile devices, and this information could be used by unlicensed wireless microphone users to determine whether any mobile devices could operate in their area. The Commission also points out that unlicensed wireless microphones operate on an equal basis with white space devices in the TV bands and that neither one has priority over the other. As with all unlicensed devices operating under the Commission's part 15 rules, unlicensed wireless microphones are subject to the condition that they may receive interference—including interference from other unlicensed devices. As such, while the presence of multiple vacant channels in “less congested” areas indicates that there will likely be spectrum available for both white space devices and unlicensed wireless microphones, the unlicensed wireless microphones operate under the same spectrum access provisions as all part 15 unlicensed devices where all such devices have equal access to the spectrum and must accept interference that may be caused by the operation of an authorized radio station, by another intentional or unintentional radiator, by industrial, scientific and medical (ISM) equipment, or by an incidental radiator.

Background. The Commission established a new class of “narrowband white space device” that can be used in IoT applications, which it defined as a type of fixed or personal/portable white space device operating in a bandwidth of no greater than 100 kilohertz. The Commission's rules require narrowband devices to comply with the same power spectral density (PSD), antenna gain and adjacent channel emission limits as four watt EIRP fixed devices, and limit them to a one percent duty cycle (36 seconds per hour). It also requires narrowband devices to comply with a channelization plan (55 narrowband carriers within the center 5.5 megahertz of a TV channel) which ensures that the maximum instantaneous power within a TV channel can never be greater than four watts EIRP. The Commission noted that because the transmission time is limited to no more than thirty-six seconds per hour, the interference potential of narrowband white space devices will actually be significantly less than that of four-watt EIRP fixed devices, since it is extremely unlikely that devices would transmit at maximum power on all 55 narrowband channels simultaneously, and even if they did, that would occur for no more than 36 seconds per hour. The Commission decided not to limit narrowband device operation to “less congested” areas as suggested by wireless microphone interests, noting that the white space database will ensure that narrowband devices do not operate on channels at locations where registered licensed wireless microphones operate. It also noted that unlicensed wireless microphones must already share spectrum with four watt EIRP white space devices, and that narrowband devices will generally have a significantly lower interference potential in the vast majority of cases.

Shure believes that the Commission erred in authorizing narrowband IoT white space device operations on a nationwide basis. It argues that the Commission failed to justify authorizing a new nationwide class of IoT services within a rural access proceeding and that it did not consider the negative public interest impact nationwide narrowband white space devices will have on coequal unlicensed users scanning for available spectrum. Shure further argues that the Commission failed to consider mitigation measures that would ease the feasibility of coexistence with other spectrum users, such as disclosing the times, locations, and technical operating parameters to the white space database, or requiring IoT devices to incorporate a transmission signal that would enable wireless microphone users to better identify clear and occupied channels. Microsoft responds that the Commission appropriately authorized nationwide IoT mobile device operations and is not required to restrict these devices to rural areas, and that the rules adopted in the 2020 White Spaces Order and FNPRM consider and mitigate the impact on coequal unlicensed users.

Discussion. The Commission affirms its decision to allow narrowband devices to operate in all areas and decline to adopt additional requirements for narrowband devices suggested by Shure that are intended to facilitate their detection or that would require additional information to be submitted to the white space database. As an initial matter, the Commission previously noted that narrowband devices have no greater interference potential than four watt EIRP devices, and that as a practical matter their interference potential will be significantly lower because a device is unlikely to transmit on all possible 55 narrowband channels simultaneously, and if it did the transmissions are limited to a one percent maximum duty cycle. Unlicensed wireless microphones are already required to share spectrum with white space devices operating at up to four watts EIRP (outside of “less congested” areas) on an equal basis, and the 2020 White Spaces Order and FNPRM made no changes to this sharing regime. Unlicensed wireless microphones must accept interference from white space devices, and conversely, white space devices must accept interference from both licensed and unlicensed wireless microphones. However, as discussed below, the Commission expects that there will generally be spectrum available for unlicensed wireless microphones in areas where narrowband white space devices are used, and there are steps that wireless microphone users can take under the current rules to help identify where narrowband devices may be in use.

The Commission disagrees with Shure's contention that the Commission should not have permitted nationwide deployment of narrowband devices in this proceeding. The fact that this proceeding focuses primarily on rural areas does not preclude the Commission from adopting rules that benefit persons in all areas. While Microsoft noted that several major narrowband IoT use cases and applications are predominately in rural areas, it did not suggest, and the Commission did not propose or even seek comment on whether to limit narrowband white space device operation to only less congested areas. Thus, Shure had notice that the Commission was considering allowing narrowband devices to operate in all areas. In adopting rules to permit the new class of narrowband devices, the Commission already considered and rejected requests by wireless microphone interests to limit narrowband devices to “less congested” areas, noting that these devices have no greater interference potential than four watt EIRP white space devices that were already permitted to operate in any area.

The Commission expects that there will generally be spectrum available for unlicensed wireless microphones at locations where narrowband devices are used outside of “less congested” areas for several reasons. First, narrowband white space devices must comply with the same separation distances from TV contours and other protected services as four watt EIRP fixed devices. These rules require that a four watt EIRP device operate outside the protected contours of both co-channel and adjacent channel TV stations, which means that a narrowband device can operate only at a location where there are at least three contiguous vacant TV channels, with the white space device operating in the center 6 megahertz channel and both adjacent channels vacant. Thus, at a location where a narrowband white space device is being used outside of a “less congested” area, there will be a minimum of 12 megahertz of spectrum available for wireless microphones that cannot be used by a narrowband white space device. Further, a narrowband white space device would not preclude operation of unlicensed wireless microphones over large distances. Licensed wireless microphones are protected to a one kilometer distance from co-channel white space devices operating with up to ten watts EIRP. Since a narrowband device will generally have a much lower interference potential than a four watt EIRP device, and therefore even less than a ten watt EIRP device, the distance at which it could potentially interfere with wireless microphones will be significantly less than one kilometer.

Because narrowband devices have a lower interference potential than other fixed white space devices with which unlicensed wireless microphones must already share spectrum, and because there will continue to be spectrum available for unlicensed wireless microphones at locations where narrowband devices operate, the Commission declines to adopt additional requirements for narrowband devices as suggested by Shure. The Commission recognizes Shure's concern about the difficulty in scanning spectrum for the presence of white space devices that transmit for short periods of time, but there is no clear solution to this concern. The white space rules have never specified any requirements on the time interval over which devices may transmit, and establishing a minimum transmission time to facilitate detection by wireless microphone users could require devices to transmit unnecessarily, potentially affecting battery life in battery-powered devices or impacting the use of spectrum by other white space devices and unlicensed wireless microphones. Similarly, requiring white space devices to transmit a beacon signal could also affect the battery life of battery powered devices, and depending on the nature of the signal transmitted could also impact spectrum use by other white space devices or wireless microphones.

The Commission will not require operators of narrowband devices to register additional information in the white space database. The Commission previously rejected requests to require white space devices to provide additional information to the white space database, including their specific operating channel, in the interest of keeping the rules simple and avoiding the imposition of unnecessary requirements that could hamper innovation. These same considerations lead us to decline to require operators of narrowband devices to register additional information in the white space database. However, unlicensed wireless microphone operators can use the white space database to identify locations where fixed devices, including narrowband devices, are in use. This information is publicly available and can allow unlicensed wireless microphone users to determine whether any fixed devices are in their vicinity, e.g., less than 1 kilometer. In addition, the white space database can provide a list of available channels at an unlicensed wireless microphone's location, which can indicate where narrowband devices could potentially operate ( i.e., groups of three vacant channels) and thus, where they could not.

In this Report and Order, the Commission requires mobile white space devices, which operate on TV channels 2 through 35, to comply with the same hourly database re-check interval that the Commission recently required for most fixed and Mode II personal/portable white space devices. The Commission continues to require narrowband white space devices, which also operate on TV channels 2 through 35, to re-check the white space database once per day rather than once per hour due to their lower potential for causing harmful interference to protected services in the TV bands, including licensed wireless microphones.

Background. Because of the technical similarities between fixed and mobile devices, the Commission proposed in the 2022 White Spaces Order and FNPRM to require mobile devices to comply with the same hourly database re-check interval as fixed devices (excluding narrowband) that operate in the TV bands to more effectively protect licensed wireless microphones. The Commission also proposed to require mobile devices to comply with the other database re-check requirements for fixed devices (excluding narrowband) in the TV bands, specifically, the requirement to cease operation no more than 120 minutes after the last successful database contact in the event a device is no longer able to successfully contact the database, and the requirement to adjust their use of TV channels in accordance with wireless microphone scheduling information provided by the white space database for the two hour period beginning when the device last contacted the database. The Commission further proposed that any modified rules would become effective six months after publication in the Federal Register . NAB, Shure, and Sennheiser support an hourly re-check interval for mobile white space devices, and Shure also suggests decreasing the amount of time that a mobile device can continue to operate from 60 minutes to 10 minutes in the event it is unable to make its hourly contact with the database. Microsoft states that it has no objection to an hourly database re-check requirement for mobile devices.

The Commission will require mobile devices to re-check the white space databases at least once per hour; the same re-check interval required for fixed devices (excluding narrowband). The Commission believes this is an appropriate re-check interval due to the technical similarities between mobile and fixed devices, e.g., maximum transmitter power, power spectral density, antenna gain, requirement to connect to a database to obtain a list of available channels, and protection criteria for other services in the TV bands. The Commission will also require mobile devices to comply with the other database re-check requirements applicable to fixed devices, specifically, the requirement to cease operation no later than 120 minutes after the last successful database contact and the requirement to adjust their use of TV channels in accordance with wireless microphone scheduling information provided by the white space database for the two hour period beginning when the device last contacted the database. The Commission is implementing this change by removing the mobile device database re-check requirements from § 15.711(k)(9) and replacing them with a cross-reference to § 15.711(h), which will specify the database re-check requirements applicable to fixed, mobile, and Mode II personal/portable devices.

The Commission disagrees with Shure that it is necessary to shorten the time period that a mobile device can continue to operate if it is unable to make its hourly contact with the database. There is 12 megahertz of spectrum available for wireless microphones nationwide in the 600 MHz duplex gap and guard band where they can be immediately operated without advance registration. Further, as discussed above, since mobile white space devices may operate only in “less congested” areas where at least half the TV channels in the band of operation are vacant, there will by definition be at least 12 unused TV channels out of the 23 in the UHF TV band, so there will be multiple TV channels available for wireless microphones in addition to the 12 megahertz of spectrum available nationwide in the 600 MHz duplex gap and guard band. Therefore, a potentially slightly longer time interval for operation after a failed database re-check (60 minutes as opposed to Shure's suggestion of 10 minutes) should not be problematic for licensed wireless microphone operators as it will not substantially increase the potential of harmful interference because other spectrum is available where licensed wireless microphones can operate until a TV channel occupied by a white space device is cleared. In the case of large events held in “less congested” areas where a licensed wireless microphone operator registers TV channels in advance, this slightly longer time interval is even less likely to be problematic because operators will have the information necessary to register wireless microphones ( e.g., location, times, dates, channels required) well in advance of an event, so a small amount of extra time needed to release a channel after registration is insignificant. Finally, the Commission notes that the extra time that a device is permitted to operate beyond a failed database re-check is expected to be an infrequent occurrence limited to those instances when a device is unable to contact the database; it is not a device's normal mode of operation.

While the Commission proposed a 6-month transition period for parties to comply with a changed database re-check interval for mobile devices, upon further consideration it does not believe that a transition period is necessary since the white space database is not yet capable of supporting mobile devices and there are as of yet no certified mobile white space devices. No party indicated a need for a transition period. Accordingly, the Commission makes the rules changing the database re-check interval for mobile white space devices effective 30 days after publication in the Federal Register .

Background. The rules currently require narrowband white space devices to re-check the database at least once daily and permit them to operate until 11:59 p.m. the following day if they are unable to contact the database on a given day. Microsoft previously argued that requiring narrowband fixed white space devices used for IoT applications to comply with an hourly database re-check would negatively impact battery life, limit potential form factors, and increase the cost of those devices. It requests that the Commission maintain its existing requirement that narrowband fixed devices check the white space database once per day to ensure capturing wireless microphone reservations rather than hourly.

The Commission sought comment in the 2022 White Spaces Order and FNPRM on the database re-check interval that should be required for narrowband white space devices. It sought comment on whether to retain the current requirement for a once daily database check and allow continued operation until 11:59 p.m. the following day if a device is temporarily unable to contact the database, or whether narrowband devices should comply with the same hourly re-check interval as other fixed and Mode II personal/portable devices. The Commission further sought comment on the types of devices to which a different re-check interval should apply, e.g., both fixed and Mode II personal/portable narrowband devices, battery-powered devices only or to AC powered devices as well. It also sought comment on the impact of the database re-check interval on the protection of licensed wireless microphones.

Microsoft, CTA, and OTI/PK support a once daily database re-check requirement for narrowband devices, generally arguing that a more frequent re-check interval ( e.g., once per hour) would be overly burdensome, have a negative impact on device design, including battery life, and is not necessary to prevent harmful interference to licensed wireless microphones. Microsoft and OTI/PK argue that because narrowband devices can only be used in areas where there are at least three contiguous vacant channels, operation will be precluded in urban and most suburban locations, and this three-channel requirement means channels adjacent to one used by a narrowband device will remain available for wireless microphone use. They also argue that the low duty cycle of narrowband devices (36 seconds per hour) further reduces the likelihood of harmful interference to wireless microphones. However, NAB, Shure and Sennheiser support an hourly re-check interval for narrowband devices. NAB does not believe that an hourly re-check is burdensome, while Shure and Sennheiser express concern about the potential for interference to licensed wireless microphones from a longer re-check interval.

The Commission declines to require narrowband white space devices to re-check the database on an hourly basis instead of once daily. However, the Commission believes that modifying the rule to eliminate the grace period that permits narrowband white space devices to operate until 11:59 p.m. the following day if they are unable to successfully contact a database will provide a better balance among competing interests for spectrum access in this band. Instead, the Commission will require narrowband white space devices to successfully contact the database at least once within each 24-hour period it will be operating. Microsoft urges the Commission to retain the current rules specifying a once per day recheck interval along with a grace period permitting continued operation until 11:59 p.m. the following day absent a successful contact with the database. OTI/PK also urges the Commission to retain the current recheck rules for narrowband white space devices. In contrast, Shure notes that operation under the existing rules could result in a white space device operating for a nearly 48-hour period where there is no communication with the database and in addition to modifying the recheck time to once per hour, recommends changing the grace period to 10 minutes. By modifying the rules to eliminate the grace period that could extend narrowband white space device usage up to almost an entire day without contacting the database, the Commission believes it can provide more certainty to wireless microphone operators regarding their ability to access spectrum to cover late breaking news events without detrimental impact to narrowband white space device operation.

First, with respect to narrowband white space devices, the rules require frequency selection based on accessing a white space database. Inherent in that requirement is the expectation that the device has established a good, stable, long lasting connection with the database. In addition, the Commission is not aware that the database has experienced any significant downtime to date. Thus, the Commission does not foresee many, if any, situations where a narrowband white space device will be impacted by a lack of connectivity to a white space database. Even if a device was unable to contact a database, the Commission notes that it still may transmit for 24-hours since its last successful connection which should provide ample time to transmit any data the device has collected. Moreover, the Commission expects that most IoT information that will be transmitted on these data links is not time critical information and can tolerate some delay in the event that the database cannot be contacted. And in such situations, the Commission does not expect any outages or loss of connection to a database to persist over a significant amount of time. Finally, the Commission notes that as an unlicensed device, narrowband white space devices already operate under a best effort framework with no guarantee regarding quality of service. For these reasons, the Commission does not believe that eliminating the grace period will negatively impact narrowband white space device operation nor does the Commission believe it will alter users' expectations.

The Commission does believe that changing the recheck time to one hour from the current once per day requirement will have significant impact on narrowband white space devices that could render them impractical and deprive their utility to users. As noted by Microsoft, requiring narrowband devices to re-check the database once daily rather than once hourly will provide longer battery life and a smaller form factor for battery-powered devices. Although the transmission time and amount of data sent by a narrowband device when re-checking the database may be small as suggested by NAB, requiring hourly checks will require 24 times the battery power of once daily checks, which could have a negative impact on battery life of very small battery-powered devices. While the Commission has no specific data regarding the impact on battery size or cost, the Commission notes that many IoT devices ( e.g., optical sensors for streetlights or internal sensors embedded in machinery) are designed to be very small due to environmental constraints ( e.g., size of the structure or machine they are attached to) and correspondingly necessitate small batteries that must last for long periods of time as the IoT device's location may make replacement difficult and costly. Thus, size and form factor are essential characteristics that may drive device design and in turn limit maximum battery size. Given that a battery's capacity is at maximum levels at installation, decreases over time with use, and that more use intuitively causes the battery to drain faster and necessitate replacement sooner, the Commission agrees with Microsoft that the Commission's rules should accommodate such applications. The alternative would be either larger devices that cannot be installed where needed or devices that have inadequate battery life and must be serviced more frequently which could be costly and may be impractical for many locations.

The Commission believes that by making this change, it will provide a more predictable spectrum environment for wireless microphones and continue to maintain a low potential for harmful interference. As an initial matter, the Commission notes that licensed wireless microphones have access to a registration system in which users can preregister locations to ensure that white space devices do not operate on certain television channels during specific times. In contrast, unlicensed wireless microphones operate on an equal basis with white space devices and neither device type has any spectral rights over the other. The Commission also notes that wireless microphones are generally used for two types of events—preplanned events known well in advance (such as sporting events, concerts, shows and conventions) and late breaking events (such as on-site news reporting). For the former case, the Commission expects licensed wireless microphone users to use the tools available to them and register their usage well in advance of these events to ensure that the television channels they intend to use are clear when they need them. With respect to the latter case, wireless microphone users have always operated in an environment where many microphone users converge on an area and on-the-scene frequency coordination and management must be accomplished in real time; users often have flexibility to choose among several television channels on which to tune their microphones. In such situations, the Commission's rules ensure that ample spectrum should be available even if a narrowband white space device is operating nearby.

Because narrowband white space devices must comply with the same separation distances from co-channel and adjacent channel TV station contours as four-watt fixed white space devices, they may only operate when there are at least three contiguous television channels available and may not operate on the lowest or highest channel. Thus, for late breaking events where licensed microphone users may not have ample time to register their usage, there will still be spectrum available. Wireless microphones could operate on the available television channels adjacent to the channel being used by the narrowband white space device, or on any other vacant TV channels where narrowband devices cannot operate, i.e., channels on which one or both of the adjacent channels are occupied. In addition, as noted above other spectrum will also be available for wireless microphone usage, including 12 megahertz in the 600 MHz guard band and duplex gap. In all cases, fixed white space devices, including narrowband devices, must be registered in the white space database and those registrations are publicly available, thus allowing prospective wireless microphone users to determine the precise locations where fixed narrowband devices are in use. The white space database can also show which channels cannot be used by narrowband devices, i.e., those where four-watt fixed devices cannot operate due to occupied adjacent channels and thus, are available for microphone use.

For late breaking events where licensed microphone users are unable to preregister their usage, it is not apparent that changing the database recheck requirement from once per day to once per hour would result in any difference regarding the channels on which narrowband white space devices operate as in many cases, microphone users may not be able to register their usage at all as they are focused on getting to the scene, not on registering their usage. However, even in instances where a wireless microphone may operate in the vicinity of a narrowband white space device, the potential for harmful interference is low. As discussed above, the interference potential of a narrowband device is significantly less than that of a four watt EIRP device due to the fact that it operates intermittently with narrowband carriers with a duty cycle of less than one percent. These rules working in tandem will provide a spectrum environment where wireless microphones users, that for whatever reason cannot operate on one of the available channels or chooses not to, will be able to operate in close proximity to a narrowband white space device without experiencing any detrimental effect. In this regard, the Commission's rules require fixed white space devices operating at up to 40 dBm (10 watts) EIRP to maintain a 1 kilometer buffer from registered wireless microphone locations. Narrowband white space devices operate with maximum 18.6 dBm/100 kHz EIRP. In the unlikely situation that all narrowband channels are in use at any given time, the total equivalent energy is no worse than a 36 dBm (4 watts) white space device and the duration of any such situation will be extremely short due to the one percent duty cycle limit. Also, because the rule requiring geographic separation is based on devices operating at maximum antenna height (250 meters generally and 500 meters in less congested areas) and devices operating at lower antenna heights have shorter line-of-sight distance and experience more clutter losses, coupled with the extremely low potential of all narrowband white space devices operating at the same time, the Commission expects that wireless microphones will be able to operate without experiencing harmful interference at much closer distances. Due to this low interference potential, the Commission does not see a need to require a more frequent database re-check interval than once daily. Sennheiser does not clearly state why it believes narrowband devices have a higher potential for causing interference than other white space devices. Also, the primary use case of narrowband devices is in rural and other less populated areas where there is less likelihood that one will be used in close proximity to a licensed wireless microphone. The fact that narrowband devices can operate only at locations where there are three contiguous channels will help ensure that they are used only in areas where there are fewer TV stations in operation and thus more spectrum available for wireless microphones.

In sum, the Commission finds that a once daily database check will facilitate a wide variety of IoT devices, will not affect the potential for narrowband white space devices to cause harmful interference and will continue to allow widespread wireless microphone use. The Commission is therefore maintaining the current daily re-check interval for all types of narrowband devices ( e.g., AC and battery-powered). No party indicated a need for different requirements for different types of devices. The Commission finds that an hourly re-check interval is not necessary for narrowband devices due to the very low likelihood of them to cause harmful interference to licensed wireless microphones and because other protected services in the TV bands such as broadcast TV change operating parameters on a less frequent basis. In the rare event of a conflict between narrowband white space devices and licensed wireless microphones used in applications that require immediate spectrum access, there will typically be other spectrum available where the microphones can operate until a newly registered TV channel is cleared of white space devices. In cases where a channel is reserved more than a day in advance for large planned events, a daily re-check interval will be sufficient to ensure that licensed wireless microphones have access to that TV band spectrum. However, to better accommodate licensed microphone usage when such usage is registered a day in advance, the Commission is eliminating the grace period that would otherwise permit narrowband white space devices to operate until 11:59 p.m. the following day if it does not successfully contact a database. The Commission finds that due to the expected use cases for narrowband white space devices, such a change will not adversely impact their ability to deliver their intended services. Accordingly, the Commission is modifying the rules to require narrowband white space devices to successfully contact a database at least once every 24-hours or cease operating until such time at it does communicate with a database and obtains an up-to-date available channel list.

In this Memorandum Opinion and Order, the Commission declines to allow the white space database to use terrain-based models, such as the Longley-Rice Irregular Terrain Model (Longley-Rice) to determine which TV channels are available for white space device operation at a particular location. The Commission instead requires that white space databases continue to use only the current model for determining TV channel availability.

Under current rules, white space devices must generally operate outside the defined protected contours of co- channel and adjacent channel TV stations. The rules provide a table of separation distances beyond the protected contour that white space devices must meet that is based on the white space device's EIRP and HAAT. These distances are based on a desired-to-undesired (D/U) signal ratio of 23 dB at the edge of the protected contour for co-channel operation, and −33 dB at the edge of the protected contour for adjacent channel operation, with a 14 dB allowance for TV receive antenna front-to-back ratio.

The Longley-Rice propagation model is used to make predictions of radio signal field strength using the median attenuation calculated as a function of distance and the signal variability in time and space. The model can be run in point-to-point mode where it examines a specific radio signal path between a transmitter and a receiver, or in area mode in which it predicts field strength at many geographic points within a specified area. Each operational mode uses a terrain elevation profile in making predictions; in the point-to-point mode path-specific parameters can be determined from the terrain profile between the transmitter and receiver, and in area mode the elevation profile between the transmitter and each specific reception point is examined. The model may require a large number of reception points to be individually examined. It also requires a large set of input parameters encompassing system parameters ( e.g., frequency, polarization, antenna heights), environmental parameters ( e.g., terrain irregularity, electrical ground constants, surface refractivity, climate information), deployment parameters, and statistical parameters ( e.g., reliability and confidence level). Based on the predicted radio signal attenuation and using additional factors such as transmitter power and antenna directivity, the D/U signal ratio can be estimated and compared against the 23 dB co-channel and −33 dB adjacent channel standards used as the basis when developing the white space device rules to predict whether harmful interference is likely to occur to television reception.

In the 2020 White Spaces Order and FNPRM, the Commission sought comment on whether the use a terrain-based model such as Longley-Rice for determining white space channel availability would better serve the white space device community as well as television broadcasters and other protected entities in the television bands. In particular, it sought comment on how the Longley-Rice propagation model could be used to determine available white space channels and whether it could be used to protect other services in the TV bands ( e.g., licensed wireless microphones, translator receive sites, land mobile stations) in addition to TV. The Commission also sought comment on whether the use of a terrain-based model should be mandatory or an optional alternative to the current protection model and on the technical parameters that would be necessary to use such a model for identifying available spectrum while protecting incumbents from harmful interference. In addition, the Commission sought comment on various white space database and device implementation issues that would need to be addressed if the Commission were to allow or require use of a terrain-based model.

Unlicensed proponents support permitting the use of terrain-based models by white space database administrators as an optional alternative to the current model. These parties generally argue that the current protection model can be overly conservative and that permitting terrain-based models would make more spectrum available for white space devices. They also state that the increased computer resources to make the calculations are not an issue with current technology. Microsoft suggests limiting use of terrain-based models to locations outside of a TV station's protected contour, while WISPA and DSA suggest also allowing use within an adjacent channel station's protected contour. RED Technologies, the only currently active white space database administrator, suggests using a terrain-based model only for the purpose of calculating TV station protected contours and leaving the current separation distances beyond the contour unchanged.

TV broadcast interests oppose allowing the use of terrain-based models by the white space database due to concerns about interference to TV reception. Commenters argue that a terrain-based model does not work well for protecting individual TV receivers. Commenters also argue that now is not a good time to change the white space protection requirements due to TV broadcasters transitioning to ATSC 3.0 and recent rule changes regarding distributed transmission systems and white space devices.

Discussion. The Commission declines at this time to permit use of terrain-based models in place of, or as an alternative to, the current method of protecting TV and other services using minimum distance separations from defined protected service contours or defined geographic points. The Commission finds that it lacks a sufficient record to adopt rules on issues such as whether a terrain-based model is an appropriate method for protecting TV services from white space devices, and if so, the exact technical parameters that would need to be specified to implement the model, whether a terrain-based model should be used only outside of a TV station's protected contour or whether it could also be used within a protected contour, whether it should be used only for protecting TV services or for protecting other services as well ( e.g., land mobile stations, licensed wireless microphones).

The record does not show whether allowing use of a more complex terrain-based model for determining channel availability would yield any significant increase in spectrum for white space devices. While unlicensed interests state that this could be the case in some instances, no party provided analysis to substantiate this claim. TV spectrum available for white space devices became more limited after the broadcast incentive auction due to the reduction in size of the UHF TV band and the re-packing of UHF TV stations into the remaining portion of the band (channels 14 through 36). The need to protect adjacent channel TV stations means that a fixed white space device may operate at higher power levels (up to four watts EIRP generally, 16 watts EIRP in “less congested” areas) only at locations where there are at least three contiguous vacant channels, with the white space device operating on the center channel and both adjacent channels vacant. After the incentive auction, there are fewer groups of three vacant TV channels in most areas, particularly in urban and suburban areas, as well as fewer single or pairs of vacant TV channels where white space devices could operate at lower power levels. There is no evidence in the record that allowing the use of terrain-based models to determine white space channel availability could address these spectrum limitations.

The record does not adequately address broadcaster concerns that terrain-based models are not an appropriate method of determining white space channel availability and that their use could result in harmful interference to TV. While the Commission does not conclude that terrain-based models are necessarily inappropriate for determining white space channel availability, it notes that there are differences between how these models are currently used as compared to their potential use in determining white space channel availability. For example, the Longley-Rice methodology is used by the Commission for evaluating TV service coverage and interference within a TV station's protected contour. The area within a protected contour is divided into a grid with 1 kilometer by 1 kilometer cells and the station's coverage and any interference received from other TV stations are calculated at a single point within each grid cell. While the Commission has successfully used this method for determining TV station coverage, it is not clear from the record that it is sufficiently precise to be used in determining white space channel availability since TV receivers are spread over a wide area where their locations are not known, which increases the possibility of interference if a terrain-based model cannot accurately predict TV signal levels at all potentially affected receiver locations. There are also differences in the interference environment for TV reception compared to other applications where the Commission allows calculation of potential interference using terrain-based models, such as for unlicensed devices in the 6 GHz bands and devices in the Citizens Broadband Radio Service. The record lacks sufficient information on these differences and how broadcasters' interference concerns could be addressed.

The Commission also believes that implementing terrain-based models could create burdens on the white space database administrator, the Commission and other parties. The white space database administrator would have to develop and test new, more complex computer code to determine channel availability and also to upgrade its computer system. Even after updated code is developed, the Commission or another party, e.g., a test laboratory, would have test and validate that the code provides accurate channel availability information. Because there is currently only one active white space database administrator and fewer than 300 registered fixed devices, the implementation costs, including any third party testing, would have to be spread over a relatively small user base or borne by the white space database administrator. In comparison, there are five spectrum access system (SAS) administrators in the Citizens Broadband Radio Service with hundreds of thousands of devices in use, and the Commission recently conditionally approved thirteen 6 GHz automated frequency coordination system (AFC) operators and the Commission expects that 6 GHz device deployment will substantially exceed white space device deployment due to the greater amount of spectrum available. The Commission notes that the white space database administrator suggests only a very limited implementation of a terrain-based model, specifically, to calculate TV station protected contours while making no other changes to the current protection model.

In sum, while the Commission believes the use of a terrain-based propagation model for calculating whether the potential for causing harmful interference exists is appropriate in some instances, it is not clear that it would be beneficial to allow use of a terrain-based model in determining white space channel availability. As noted above, there are unresolved interference concerns as well as implementation costs that may outweigh any potential benefits of the changes. Further, there is already a simple, well-defined model for determining white space channel availability which no party argues is inadequate for protecting services in the TV bands. For these reasons, the Commission declines at this time to permit the use of terrain-based models in determining white space channel availability.

Rule correction. The Commission is making a ministerial correction to § 15.713(e)(6) of the rules, which contains a requirement that white space databases not provide a list of available channels to fixed white space devices that exceed specific antenna height limits.

Prior to 2019, fixed white space devices were generally limited to a maximum antenna height above ground of 30 meters and a maximum HAAT of 250 meters. In the 2019 White Spaces Order on Reconsideration, the Commission raised the antenna height above ground limit to 100 meters in “less congested” areas while retaining the 30 meter height above ground and 250 meter HAAT limits in all other areas. In the 2020 White Spaces Order and FNPRM, the Commission increased the HAAT limit to 500 meters in “less congested” areas, retained the 250 meter HAAT limit in all other areas, and removed the antenna height above ground limit for most fixed white space devices. The Commission revised §§ 15.709(g)(1) and 15.713(e)(6) to reflect these decisions, but in doing so it inadvertently continued to include an outdated reference to the former 30 meter antenna height above ground limit in § 15.713(e)(6). Accordingly, the Commission modifies § 15.713(e)(6) to remove this reference and conform the text of the rule to the Commission's decision.

Accordingly, it is ordered that, pursuant to the authority contained in sections 4(i), 302, 303(b), (c), (e), (f), (r), and 307 of the Communications Act of 1934, as amended, and sections 6403 and 6407 of the Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112-96, 126 Stat. 156, 47 U.S.C. 154(i), 302, 303(b), (c), (e), (f), (r), 307, 1452, 1454, this Order on Reconsideration, Report and Order, and Memorandum Opinion and Order is hereby adopted .

It is further ordered that the petition for reconsideration filed by Shure Incorporated on February 11, 2021 in ET Docket No. 20-36 is dismissed in part on procedural grounds and, as an independent and alternative basis, denied .

It is further ordered that the amendments of the Commission's rules as set forth in Appendix A are adopted , effective thirty days from the date of publication in the Federal Register .

It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Order on Reconsideration, Report and Order, and Memorandum Opinion and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Order on Reconsideration, Report and Order, and Memorandum Opinion and Order, including the Final Regulatory Flexibility Analysis, to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons set forth in the preamble, the Federal Communications Commission amends 47 CFR part 15 as follows: