Federal Register Vol. 82, No.173,

Comments Invited

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. We will consider all the comments we receive and may conduct additional rulemaking based on those comments.

We issued Emergency AD 2015-22-51, which was published in the Federal Register as a Final rule; request for comments on February 1, 2016, at 81 FR 5037. AD 2015-22-51 applied to Agusta Model A109A and A109AII helicopters with a blade part number (P/N) 109-0103-01-7, P/N 109-0103-01-9, or P/N 109-0103-01-115 that had 500 or more hours time-in-service (TIS). AD 2015-22-51 required, before further flight and every 24 clock-hours, inspecting the top and bottom surface of each blade for a crack. AD 2015-22-51 also required, before each flight, checking the top and bottom surface of each blade for a crack. AD 2015-22-51 allowed this check to be performed by a pilot and required further inspection of the blade if there was a crack.

AD 2015-22-51 was prompted by AD No. 2015-0190-E, dated September 18, 2015, issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Agusta Model A109A and A109A II helicopters. EASA advised that abnormal vibrations were reported during a flight on a Model A109A II helicopter. During a post-flight inspection, a crack was found on a P/N 109-0103-01-9 blade. EASA AD No. 2015-0190-E required pre-flight inspections and repetitive inspections of each blade. EASA advised that due to similarity of design, the inspections also applied to P/N 109-0103-01-7 and P/N 109-0103-01-115 blades. EASA further advised that a cracked blade, if not detected and corrected, could affect the structural integrity of the blade, possibly resulting in blade failure and loss of control of the helicopter. EASA revised its AD and issued AD No. 2015-0190R1, dated October 23, 2015, to extend the interval of the repetitive inspections to 10 flight hours.

Since we issued AD 2015-22-51, Leonardo Helicopters (previously Agusta) issued Alert Bollettino Tecnico (BT) No. 109-150, Revision B, dated October 21, 2016, and EASA superseded AD 2015-0190R1 by issuing AD No. 2016-0213, dated October 26, 2016. EASA AD No. 2016-0213 was prompted by a crack in a blade P/N 109-0103-01-9 on a Model A109A II helicopter that was not detected during any of the pre-flight inspections. Upon a subsequent review of data, it was determined that the pre-flight inspections were ineffective to address the unsafe condition and that a shorter interval of the repetitive inspection is necessary. For these reasons, EASA AD 2016-0213 requires inspecting the blades for a crack at intervals not exceeding five flight hours.

Additionally, the FAA is in the process of updating Agusta's name change to Leonardo Helicopters on its FAA type certificate. Because this name change is not yet effective, this AD specifies Agusta.

After our Final rule; request for comments was published, we received comments from one commenter.

The commenter stated the AD's cost estimate for a new blade is erroneous, and while the AD identifies the cost of a single inspection, it does not account for the cumulative cost of the daily inspection over time.

We agree. We have revised the cost of the blade in this final rule. As far as a cumulative cost of the repetitive inspections, this new AD changes the compliance interval to every 5 hours TIS. Since the cumulative cost would be different for every operator, we have made no change to the estimated costs in this regard.

The commenter also requested the FAA require Agusta to design and provide a new blade to operators at no charge. The commenter stated the actual cost of the AD is financially devastating to operators and renders the helicopter worthless.

We do not have the authority to direct manufacturers to provide parts or repairs to operators at no charge. We can only require repair or replacement of defective components that are installed on the helicopter. In light of this, we have made no change to the AD in this regard.

These helicopters have been approved by the aviation authority of Italy and are approved for operation in the United States. Pursuant to our bilateral agreement with Italy, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.

We reviewed Leonardo Helicopters Alert BT No. 109-150, Revision B, dated October 21, 2016. This service information specifies inspecting the top and bottom surfaces of each blade for a crack in the area between station 1550 (the station at the end of the doublers) and station 3100 (the station at the beginning of the abrasion strip) for a crack every 5 flight hours and replacing a cracked blade.

This AD requires, before further flight, unless done within the last 5 hours TIS, and thereafter at intervals not to exceed 5 hours TIS, visually inspecting the top and bottom surface of each blade for a crack in the area between stations 1550 and 3100 using a 3X or higher power magnifying glass. If there is a crack, this AD requires replacing the blade.

The EASA AD requires a type II dye penetrant inspection if in doubt about whether there is a crack, while this AD does not. The EASA AD also includes warning the pilot regarding cracked blades resulting in possible vibration, while this AD does not.

We consider this AD interim action. If final action is later identified, we might consider further rulemaking then.

We estimate that this AD affects 33 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour. We estimate 8 work-hours to inspect a set of four blades at a cost of $680 per helicopter and $22,440 for the fleet per inspection cycle. We estimate 4 work-hours to replace a blade and the required parts will cost $124,000, for a replacement cost of $124,340 per blade.

According to Leonardo Helicopter's service information, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage by Leonardo Helicopter. Accordingly, we have included all costs in our cost estimate.

Providing an opportunity for public comments prior to adopting these AD requirements would delay implementing the safety actions needed to correct this known unsafe condition. Therefore, we find that the risk to the flying public justifies waiving notice and comment prior to the adoption of this rule because the required corrective actions must be completed before further flight or within 5 hours TIS after the effective date of this AD.

Since an unsafe condition exists that requires the immediate adoption of this AD, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in less than 30 days.

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.

We are 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.

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

For the reasons discussed, I certify that this AD:

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);

3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

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

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2015-02-22, Amendment 39-18090 (80 FR 5452, February 2, 2015), (“AD 2015-02-22”). AD 2015-02-22 applied to certain RRC 250-B17, -B17B, -B17C, -B17D, -B17E, -B17F, -B17F/1, -B17F/2, turboprop engines; and 250-C20, -C20B, -C20F, -C20J, -C20R, -C20R/1, -C20R/2, -C20R/4, -C20S, and -C20W turboshaft engines. The NPRM published in the Federal Register on March 29, 2017 (82 FR 15474). The NPRM was prompted by our determination that it is necessary to remove the 4th-stage wheels at the next inspection. The NPRM proposed to require repetitive visual inspections and FPIs of 3rd-stage turbine wheels while removing from service 4th-stage turbine wheels. We are also revising the applicability to remove all RRC turboprop engines and add additional turboshaft engines. We are issuing this AD to prevent failure of the 3rd-stage and 4th-stage turbine wheel blades, damage to the engine, and damage to the aircraft.

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

RRC requested that we remove references in this AD to the 3rd stage turbine wheel, part number (P/N) RR30000236, installed on the RRC 250-C300/A1 and 250-C300/B1 turboshaft engines. RRC indicated that 3rd stage turbine wheels, P/N RR30000236, are not susceptible to cracks. RRC noted that there have been no cracks observed on 3rd stage wheels installed on RRC 250-C300/A1 or 250-C300B/1 engines.

We agree. The 3rd stage turbine wheel, P/N RR30000236, installed on RRC 250-C300/A1 and 250-C300/B1 engines does not require inspections. They are subject to less severe operating conditions and are not susceptible to this type of failure. We removed references to the 3rd stage turbine wheel, P/N RR30000236, from this AD.

RRC requested that we change references in this AD from “power turbine” to “turbine.” RRC noted that this AD should refer to the entire turbine module rather than just to the power turbine. RRC also commented that the risk analysis for this AD is based on changing the parts anytime the turbine is being serviced, not just the power turbine. Revising the reference in this AD to “turbine” would remove the affected 4th stage turbine wheels from the fleet in a shorter time period since the actions specified in this AD are to be complied with whenever the turbine is at the shop and is dissembled for any reason, or at the next turbine wheel replacement, whichever occurs first.

We agree. We changed the reference in the Compliance section of this AD from “power turbine” to “turbine.”

RRC also commented that changing the references to “turbine” would allow for removal of the Definition section from this AD.

We disagree. The term “engine shop visit” is used as one of the criteria in this AD to determine when an inspection of affected applicable turbine wheels is required. Given that “engine shop visit” may be interpreted in different ways, we provide a definition for this term in this AD. We did not change this AD.

RRC requested that we revise the Compliance section of this AD so that it does not require removal from service all turbine wheels found with cracks. RRC commented that only certain cracks are related to this AD and are a safety concern.

We agree. The intent of this AD is to address cracks at the trailing edge of the turbine wheel blades, near the fillet at the rim. The maintenance manuals for these engines allow certain cracks in areas of the turbine wheels not subject to this AD. Engines may still operate safety with turbine wheels that have allowable cracks. We revised paragraph (f)(3) of this AD to refer to cracks found at the trailing edge, near the fillet at the rim, of the turbine blades.

We reduced the estimated cost of inspection of 3rd stage wheels from $320,365 to $288,320 since we removed the 3rd stage wheel, P/N RR30000236, from the applicability of this AD. As noted in our previous comment response, these P/N 3rd stage wheels are not subject to the unsafe condition identified in this AD.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:

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

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

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

We estimate that this AD affects 3,769 engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

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

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

The FAA published in the Federal Register (82 FR 16960, April 7, 2017) Docket No. FAA-2016-9593 a notice of proposed rulemaking (NPRM) to modify Class E airspace extending upward from 700 feet above the surface at Brenner Field Airport, Falls City, NE. 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 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 modifies Class E airspace extending upward from 700 feet above the surface within a 6.5-mile radius (increased from 6.4 miles) of Brenner Field and cancels the NDB approach due to the decommissioning of the Brenner NDB. This action enhances the safety and management of the standard instrument approach procedures for IFR operations at the 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, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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:

The U.S. Army Rock Island Arsenal requested a temporary deviation for the Rock Island Railroad and Highway Drawbridge, across the Upper Mississippi River, mile 482.9, at Rock Island, Illinois. The bridge has a vertical clearance of 23.8 feet above normal pool in the closed-to-navigation position. This bridge is governed by 33 CFR 117.5.

This deviation allows the bridge to remain in the closed-to-navigation position from 7 a.m. through 11:30 a.m. on September 24, 2017. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. This temporary deviation has been coordinated with waterway users. No objections were received.

The bridge will not be able to open for emergencies and there are no alternate routes for vessels transiting this section of the Upper Mississippi River. The Coast Guard will inform users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so the vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

I. Background

In early June of this year, the EPA proposed to grant two one-year extensions to the Moderate attainment date for the 2006 24-hour PM2.5 Logan, UT-ID nonattainment area. See 82 FR 25992 (June 6, 2017); 82 FR 26638 (June 8, 2017). Under CAA section 188(d), the EPA may grant a state's request to extend the attainment date for a Moderate area if: “(1) the state has complied with all requirements and commitments pertaining to the area in the applicable implementation plan; and (2) no more than one exceedance of the 24-hour [National Ambient Air Quality Standard (NAAQS)] level for PM10 has occurred in the area in the year preceding the Extension Year, and the annual mean concentration for PM10 in the area for such year is less than or equal to the standard level.” The statute provides the EPA with authority to issue only two one-year extensions for a single Moderate area.

On August 24, 2016, the EPA finalized the Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements (“PM2.5 Implementation Rule”), 81 FR 58010, and that rule includes requirements applicable to Moderate area extension requests under CAA section 188(d). Under the regulations, the EPA may grant an extension if the agency determines that: (1) The state has complied with all requirements and commitments pertaining to the area in the applicable implementation plan; and (2) for an area designated nonattainment for the 24-hour PM2.5 NAAQS for which the state seeks an attainment date extension, the 98th percentile 24-hour concentration at each monitor in that area for the calendar year that includes the applicable attainment date is less than or equal to the level of the applicable 24-hour standard (calculated according to the data analysis requirements in 40 CFR part 50, appendix N). See 40 CFR 51.1005(a)(1). The applicable implementation plan is defined as the plan submitted to meet Moderate area requirements. Id. § 51.1005(a)(2). The PM2.5 Implementation Rule explains that, to meet the first criterion, a state needs to show that it has “submitted the necessary attainment plan for the area for the applicable PM2.5 NAAQS and is implementing the control measures in the submission.” See 81 FR 58070 and 58073, August 24, 2016.

On June 6, 2017 (82 FR 25992), the EPA Region 8 Regional Administrator, and on June 8, 2017 (82 FR 26638), the EPA Region 10 Regional Administrator proposed to grant two one-year extensions to the Moderate area attainment date for the 2006 24-hour PM2.5 Logan, UT-ID nonattainment area. The requests on which the EPA proposed action were submitted by the State of Utah on May 2, 2017, and the State of Idaho on December 15, 2015, February 26, 2016, and April 25, 2017. The EPA took comment on granting the two one-year extension requests that would extend the Moderate PM2.5 attainment date from December 31, 2015 to December 31, 2017, for the Logan, UT-ID nonattainment area. For details of the EPA's reasons for proposing to grant the extensions, please see the June 6, 2017 and June 8, 2017 proposal notices.

The EPA received two public comments on the proposed actions. One was submitted anonymously and the second was submitted by Western Resource Advocates (WRA).

Comment: The first comment briefly mentions that the State of Utah has had adequate time to address the air quality issue and the extension should not be approved because medical issues by excessive particulate matter are well substantiated.

Response: The EPA agrees that there are medical issues associated with PM2.5 exposures. However, CAA section 188(d) and implementing regulations provide flexibility for states to address air quality issues in Moderate nonattainment areas if certain conditions are met. Under CAA section 188(d) and the PM2.5 Implementation Rule, the EPA may grant a state's request to extend the attainment date for a Moderate area if: (1) The state has complied with all requirements and commitments pertaining to the area in the applicable implementation plan; and (2) for an area designated nonattainment for the 24-hour PM2.5 NAAQS for which the state seeks an attainment date extension, the 98th percentile 24-hour concentration at each monitor in that area for the calendar year that includes the applicable attainment date is less than or equal to the level of the applicable 24-hour standard (calculated according to the data analysis requirement in 40 CFR part 50, appendix N). 40 CFR 51.1005(a)(1). The PM2.5 Implementation Rule explains that, to meet the first criterion, a state needs to show that it has “submitted the necessary attainment plan for the area for the applicable PM2.5 NAAQS and is implementing the control measures in the submission.” See 81 FR 58070-58073, August 24, 2016. The applicable implementation plan is defined as the plan submitted to meet Moderate area requirements for the NAAQS at issue. Id. § 51.1005(a)(2). The EPA cannot issue more than two one-year extensions for a single Moderate area.

As discussed in the proposed approval of the extension requests, and in the response to the comment from WRA below, the Logan, UT-ID nonattainment area has met the CAA section 188(d) requirements for granting the two one-year extensions. Accordingly, the EPA is finalizing approval of the two one-year extension requests to the Moderate area attainment date as proposed.

Comment: The second comment, sent by WRA, asserts that the State of Utah has not complied with all requirements and commitments pertaining to the area in the applicable implementation plan. Specifically, according to WRA, the State of Utah has not met the reasonable further progress and quantitative milestones requirements of the Moderate State Implementation Plan (SIP). The commenter states that the State of Utah's Logan, UT-ID PM2.5 SIP does not establish whether the emission reductions have been achieved on a linear or stepwise basis in years 4.5 (June 2013) and 7.5 (June 2017). Additionally, WRA states that the Logan, UT-ID SIP contains no quantitative milestones; thus according to WRA, the State of Utah has failed to define and failed to demonstrate that any quantitative milestones have been achieved.

WRA further states that air quality monitoring data indicates that the extensions are inappropriate. The commenter provides air quality data representing the 98th percentile values for the Logan PM2.5 air quality monitors from 2010 to 2016, and additional information regarding preliminary 2017 values.1 Additionally, the commenter provides the specific three-year design values from 2010 to 2015 at the Logan monitors.2 Referring to the 98th percentiles and design values, the commenter states that the monitoring data shows high variability and fails to reveal any correlation between emission reductions and better air quality. The commenter concludes that the Logan, UT-ID nonattainment area has not attained the 2006 24-hour PM2.5 NAAQS and should be reclassified to a “Serious Area.”

Response: The EPA disagrees with the commenter's interpretation of the requirements found in CAA section 188(d) and the PM2.5 Implementation Rule. The relevant criteria for granting an extension for a Moderate nonattainment area are whether (1) the state has complied with all requirements and commitments pertaining to the area in the applicable state plan; and (2) the 98th percentile 24-hour concentration for the attainment year is less than or equal to the level of the applicable 24-hour standard.3 In requesting an extension, the State of Utah submitted a letter on May 2, 2017, stating that it has complied with all requirements and commitments in the state plan and that the 98th percentile 24-hour concentration for the applicable year is below the standard.

Regarding the first criterion for granting an attainment date extension under CAA Section 188(d)(1), the preamble of the PM2.5 Implementation Rule notes that CAA section 188(d) “does not explicitly require that the state comply with all requirements pertaining to the area in the CAA, but merely requires that the state comply with all requirements in the applicable SIP.” 4 In other words, so long as the state has submitted the necessary attainment plan for the area for the applicable PM2.5 NAAQS and is implementing the submitted plan, the fact that the EPA has not yet acted on such submission to make it an approved part of the applicable SIP should not preclude the state from obtaining an extension of the attainment date under CAA section 188(d)(1). Specifically, in order to satisfy the first criterion, a state would have to demonstrate that control measures included in the plan submission as reasonably available control measures (RACM), reasonably available control technology (RACT), and additional reasonable measures for sources in the area have been implemented.5

The regulatory requirements for extensions of the Moderate area attainment date that the EPA promulgated in the PM2.5 Implementation Rule are consistent with the CAA. Under 40 CFR. 51.1005(a)(1)(i) and (a)(2), the state must have complied with all requirements and commitments in the applicable implementation plan, which is defined as the Moderate area plan submitted to meet the requirements of 40 CFR 51.1003(a). Thus, the EPA has, by rule, interpreted section 188(d)(1) to require the state to have complied with the requirements to implement RACM, RACT, and additional reasonable measures that were submitted in the Moderate area plan.6 To the extent the comment suggests the EPA must first approve the plan submission before a Moderate area extension may be granted, that issue was addressed in the implementation rule and the time to comment has passed to challenge the EPA's regulatory interpretation of the statute. See CAA section 307(b)(1).

The EPA has acted on certain aspects of the State of Utah's SIP in separate actions, as described in the proposed action to grant the two one-year attainment date extensions.7 Moreover, the EPA's evaluation as to whether the Moderate area plan has met all CAA requirements, including those for reasonable further progress and quantitative milestones, will be addressed in a separate action, which as noted above is a different determination than whether the State of Utah has complied with the requirements and commitments in the submitted Moderate area plan. As discussed in the proposal, the State of Utah submitted the necessary attainment plan for the area, the plan contains control measures identified as RACM and RACT, and additional reasonable measures for sources in the area and the State is implementing those control measures.8 The comment does not dispute these facts. Thus, the Logan, UT-ID nonattainment area has met the SIP submission criterion found in CAA section 188(d)(1).

For the second criterion in CAA Section 188(d)(2), the EPA interprets the requirement to demonstrate that the area had “no more than one exceedance” of the 24-hour PM2.5 NAAQS to mean that the state must simply demonstrate that the area had “clean data” in the year preceding the extension year.9 Thus, a state seeking an attainment date extension for a Moderate nonattainment area for a 24-hour PM2.5 NAAQS would be required to demonstrate that the area had clean data with respect to the statistical form of that particular standard (i.e., for the 2006 PM2.5 NAAQS, the 98th percentile value did not exceed 35 micrograms per cubic meter (μg/m3)) in the calendar year prior to the applicable attainment date for the area.10

As noted in the proposal,11 the years that need to be reviewed for granting the two one-year attainment date extension requests are 2015 for the first extension request and 2016 for the second extension request. To demonstrate that the Logan, UT-ID nonattainment area had clean data for the 2006 PM2.5 NAAQS, the 98th percentile values may not exceed 35 μg/m3. The 98th percentile value at the Logan monitor (Utah) was 29.0 μg/m3 in 2015 and at the Smithfield monitor (Utah) was 34.4 μg/m3 in 2016. Additionally, the 98th percentile concentrations at the Franklin, Idaho monitor were 18.8 μg/m3 in 2015 and 33.3 μg/m3 in 2016. Thus, the area met the second criterion for granting the two one-year extensions found in CAA section 188(d)(2) as interpreted by the PM2.5 Implementation Rule.

The comment does not dispute that the area has met the criterion set forth in 40 CFR 51.1005(a)(1)(ii). Instead, the comment cites other monitoring data from previous years. Again, the EPA established its interpretation in the PM2.5 Implementation Rule of what monitoring data is relevant for CAA section 188(d)(2). Notwithstanding that fact, WRA appears to believe that monitoring data from the years before 2015 and 2016 must be considered and argues that it is not reasonable to ignore such data. As with the comments on the first extension criterion, the commenter appears to take issue with the EPA's interpretations of the CAA as set forth in the implementation rule; however, the time has passed to challenge the implementation rule. The EPA evaluated the extension request consistent with the PM2.5 Implementation Rule and we decline to adopt the commenter's interpretation of the statute.

To the extent the comment also argues that the EPA should deny the extension requests in our discretion, we decline to do so. As explained in our proposal and restated above, we have reviewed the requests from the states and accompanying data, and we find that they support granting two one-year extensions of the attainment date for this area. Thus, we do not agree that the EPA must necessarily consider all aspects of air quality (such as the other data the comment presents) in addition to our evaluation of the extension year air quality data under the second criterion. We also do not agree that the EPA must necessarily consider the concerns the comment raises regarding reasonable further progress and quantitative milestones in addition to our evaluation under the first criterion of the state's compliance with commitments and requirements in the submitted Moderate area plan.

However, even if the EPA were to consider the other information presented in the comment, we would still grant the extension requests. First, we note that Utah's submitted Moderate area plan does contain reasonable further progress and quantitative milestone sections.12 We also disagree that the plan does not attempt to show a correlation between emission reductions and air quality improvement: that is precisely what the attainment demonstration does. In remainder, the comment argues that these elements of the plan do not meet all Moderate area requirements, but as explained above that will be determined in a separate action.

If we were to consider the other air quality data presented by the comment, we would note that, as the comment states, there is variability from year to year.13 In such a circumstance, granting the extension request seems entirely consistent with the purpose of section 188(d): A state may have met all of its commitments and requirements in the submitted Moderate area plan, but due to variability—such as poor air quality in a single year prior to the extension year (in this case 2013)—the area fails to attain by the attainment date. In such a circumstance, section 188(d) provides a means for dealing with this variability.

In response to requests from the State of Utah on May 2, 2017, and from the Idaho Department of Environmental Quality (IDEQ) on December 15, 2015, February 26, 2016, and April 25, 2017, the EPA is granting two one-year attainment date extensions to the Moderate attainment date for the 2006 24-hour PM2.5 NAAQS for the Logan, UT-ID nonattainment area. This final action extends the Moderate area attainment date for the Logan, UT-ID nonattainment area from December 31, 2015 to December 31, 2017. This final action to extend the Moderate attainment date for this nonattainment area is based on both states' compliance with the requirements for the applicable SIPs for the area and on the 2015 and 2016 PM2.5 98th percentile data from the Logan (Utah), Smithfield (Utah), and Franklin (Idaho) monitoring sites in the Logan, UT-ID nonattainment area. Consistent with CAA section 188(d) and 40 CFR 51.1005(a), the nonattainment area will remain a Moderate PM2.5 nonattainment area, with a Moderate area attainment date of December 31, 2017. Additionally, the states will not have to submit the additional requirements that apply to Serious PM2.5 nonattainment areas unless the area fails to attain the standard by the December 31, 2017 Moderate area attainment date and the area is reclassified to a Serious PM2.5 nonattainment area.

This action is not a redesignation to attainment under CAA section 107(d)(3)(E). The State of Utah and the State of Idaho are not currently attaining the PM2.5 NAAQS in the nonattainment area and have not submitted maintenance plans as required under section 175(A) of the CAA or met the other statutory requirements for redesignation to attainment. The designation status for the area in 40 CFR part 81 will remain as a Moderate nonattainment area until such time as the State of Utah and the State of Idaho meet the CAA requirements for redesignation to attainment, or the area is reclassified to Serious.

Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/lawsregulations/laws-and-executive-orders.

This action is not a significant regulatory action and therefore is not subject to review by the Office of Management and Budget (OMB). This final action merely approves a state request as meeting federal requirements and imposes no new requirements.

This action does not impose any additional information collection burden under the provisions of the PRA, 44 U.S.C. 3501 et seq. This action merely approves a state request for an attainment date extension, and this action does not impose additional requirements beyond those imposed by state law.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law. Approval of a state's request for an attainment date extension does not create any new requirements and does not directly regulate any entities.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, will result from this action.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Pursuant to the CAA, this action merely approves a state request for an attainment date extension.

This action does not have tribal implications, as specified in Executive Order 13175. No tribal areas are located in the nonattainment area that will be receiving an attainment date extension. The CAA and the Tribal Authority Rule establish the relationship of the federal government and tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Thus, Executive Order 13175 does not apply to this action.

This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe any environmental health or safety risks addressed by this action present a disproportionate risk to children. This action merely approves a state request for an attainment date extension and it does not impose additional requirements beyond those imposed by state law.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards. This action merely approves a state request for an attainment date extension.

The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). This action approves a state request for an attainment date extension based on the state's compliance with requirements and commitments in its plan and recent air quality monitoring data that meets requirements for an extension.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 7, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

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

EPA is approving a November 18, 2015, Ohio SIP submittal consisting of adjustments and additions to OAC Chapter 3745-21. Specifically, this includes amended OAC rules 3745-21-01, 3745-21-03, 3745-21-04, 3745-21-08, 3745-21-09, 3745-21-10, 3745-21-12, 3745-21-13, 3745-21-14, 3745-21-15, 3745-21-16, 3745-21-17, 3745-21-18, 3745-21-19, 3745-21-20, 3745-21-21, 3745-21-22, 3745-21-23, 3745-21-25, 3745-21-27, 3745-21-28, 3745-21-29; rescission of existing OAC rule 3745-21-24, and adoption of new OAC rules 3745-21-24 and 3745-21-26.

Except for OAC rule 3745-21-26, the changes to the Chapter 3745-21 rules are based on an Ohio-initiated five-year periodic review of its VOC rules. When Ohio reviews a rule and amends greater than fifty percent of that rule, Ohio issues the entire rule as a new replacement rule. This is the case with OAC 3745-21-24. OAC rule 3745-21-26 is an entirely new rule, the purpose of which is to update the VOC RACT requirements for the Cleveland area for the miscellaneous metal and plastic parts coatings source category. Additionally, EPA is approving into the Ohio SIP the NOX emission limit on unit P046 at the Arcelor-Mittal Cleveland facility, which is contained in OAC 3745-110-03(N). Ohio is using this emission limit as an offset in its CAA section 110(l) anti-backsliding demonstration for architectural coatings, which was discussed in detail in the May 11, 2017, proposed rulemaking (82 FR 21960). EPA solicited public comment on this proposal and did not receive any comments during the comment period. Finally, EPA is approving OAC 3745-110-05(A) into the Ohio SIP, which provides that compliance with the NOX emission limit on unit P046 at Arcelor-Mittal Cleveland shall be demonstrated by performing emission tests in accordance with EPA Method 7, 7a, 7c, 7d, or 7e, and any additional approved EPA methods as applicable.

Many of Ohio's amendments to the rules in Chapter 3745-21 are not significant. These amendments include: Updates to items incorporated by reference; minor typographical changes to conform to new state preferences on style and formatting; updates to correct typographical and format errors; updates to reflect source name and/or address changes; the removal of references to sources which have been permanently shut down; updates to replace deadlines associated with previous rule effective dates with actual dates (e.g. “sixty days from the effective date of this rule” replaced with an actual date); and language updates to provide clarification and to avoid confusion. EPA reviewed these and other non-significant and/or non-substantive amendments and is approving them since they do not constitute significant and/or substantive changes to Ohio's rules.

More significant amendments, those amendments requiring more explanation, and the addition of OAC rule 3745-21-26 were discussed in detail in the May 11, 2017, proposed rulemaking (82 FR 21960). These amendments pertain to catalytic incinerator requirements, references to operating permits, VOC recordkeeping requirements, solvent cleaning operations requirements, the addition of OAC rule 3745-21-26 surface coating of miscellaneous metal and plastic parts, and updates to the following rules: OAC rule 3745-21-24 flat wood paneling coatings and OAC rule 3745-21-28 miscellaneous industrial adhesives and sealants. EPA reviewed these amendments and is approving them for the reasons explained in detail in the May 11, 2017, proposed rulemaking (82 FR 21960) which can be found in the docket to this final rule.

EPA is approving into the Ohio SIP adjustments and additions to VOC RACT rules in OAC Chapter 3745-21. Additionally, EPA is incorporating into the Ohio SIP the NOX emission limit on unit P046 at the Arcelor-Mittal Cleveland facility, which is contained in OAC 3745-110-03(N); Ohio is using this emission limit as an offset in its CAA section 110(l) anti-backsliding demonstration for the OAC rule 3745-21-26 VOC content limit for architectural coatings. Finally, EPA is approving OAC 3745-110-05(A) into the Ohio SIP, which provides that compliance with the NOX emission limit on unit P046 at Arcelor-Mittal Cleveland shall be demonstrated by performing emission tests in accordance with EPA Method 7, 7a, 7c, 7d, or 7e, and any additional approved EPA methods as applicable.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Ohio Regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov, and/or at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 7, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

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

The factual background for this action is discussed in detail in our March 21, 2017 direct final rule and proposal (82 FR 14442, 82 FR 14499). Originally, we issued a direct final rule to approve the required second CO maintenance plan for the El Paso, Texas CO maintenance area as a revision to the Texas SIP.

However, the direct final rule and proposal stated that if any relevant adverse comments were received by the end of the public comment period on April 20, 2017, the direct final rule would be withdrawn and we would respond to the comments in a subsequent final action. Relevant adverse comments were received during the comment period, and the direct final rule was withdrawn on May 22, 2017 (82 FR 23148). The background information found in the direct final is still relevant and our March 21, 2017 proposal provides the basis for this final action.

We received comments on our proposal from one commenter. Our response to the comments are below.

Comment 1: The Commenter states that “(a)dditional CO monitors are necessary to effectively monitor compliance” of the CO NAAQS in the El Paso maintenance area, and asserts that the current El Paso CO monitoring network operated by TCEQ is inadequate in terms of the number, siting, type, and scale of representativeness of the monitors that comprise the network.

Response 1: EPA disagrees with the assertion that the current El Paso CO monitoring network is inadequate to effectively monitor compliance with the CO NAAQS. Each state-submitted annual monitoring network plan is evaluated by EPA pursuant to 40 CFR part 58.10 requirements to determine if the criteria for implementation and maintenance of the area's air quality surveillance system have been met. Annual monitoring plans for the El Paso area have been reviewed and ultimately approved by EPA for the full extent of the timeframe noted by the Commenter. In recognition of significantly declining CO concentrations in the El Paso Area since 2000, Texas has gradually reduced and consolidated the El Paso CO monitoring network to three sites in 2015 with approval from the EPA. The reductions in the number of active network monitors specifically during the 2012-2014 timeframe were conducted in consultation with EPA, and were done in accordance with 40 CFR part 58.10 requirements. We have included EPA's responses to the State's annual monitoring network plans for the years 2012-2017 in the docket for this rulemaking.

We further note that 40 CFR 58.10(a)(1) requires that beginning July 1, 2007, the State shall adopt and submit to the Regional Administrator an annual monitoring network plan, and that this annual monitoring network plan must be made available for public inspection for at least 30 days prior to submission to EPA. This public inspection period of annual monitoring network plans has been provided by the State for all submittals since July 1, 2007, and no adverse comments have been received pertaining to the El Paso Area CO monitoring network in this time.

In the September 21, 2016 limited maintenance plan SIP submission, the State provided data showing monitored CO values from 2006-2015, reflecting a 2015 8-hour CO design value of 2.8 ppm. Thus, the design value represented for the 8-hour standard was less than 31% of the CO NAAQS. Only 1 CO monitor is currently required for El Paso, the Chamizal monitor (AQS #48-141-0044) required for NCore (National Core monitoring network) monitoring. This is a neighborhood-scale, high CO concentration site for the city and it recorded a 2.3 ppm 8-hour CO design value for 2016, similar to the 2.4 ppm 8-hour CO design value for 2016 recorded at the nearby Ascarate Park monitor to the southeast of Chamizal. The 2.3 ppm and 2.4 ppm 8-hour CO design values are significantly below the 8-hour CO NAAQS of 9.4 ppm, representing ambient concentrations 24% and 26%, respectively, of the 8-hour CO NAAQS. Both of these monitors are located in the CO maintenance area, and we note that these design values also represent a continued downward trend of CO ambient concentrations beyond the 2015 design value provided in the State's September 21, 2016 submittal.

The Commenter also states that the El Paso CO LMP should include a commitment to collocate at least one near-road nitrogen dioxide (NO2) monitor with a CO monitor as a contingency should a triggering event take place during the maintenance period. The basis of this argument is twofold: EPA network design criteria under 40 CFR part 58, Appendix D require at least one CO monitor to operate collocated with one required near-road NO2 monitor in Core Based Statistical Areas with a population of 1,000,000 or more persons. Further, the Commenter refers to Texas Department of State Health Services (TDSHS) estimates that the El Paso population will be approaching 1,000,000 as early as 2020. The Commenter provided no specific citation for this TDSHS data.

The 40 CFR part 58, Appendix D standard for population data is considered to be U.S. Census Bureau data. Based on U.S. Census data, El Paso will most likely not reach 1,000,000 in population by 2028. The current population growth estimate rate per year for El Paso is 5,811/year based upon U.S. Census estimates from 2010-2016.1 The 2010 estimate was 807,108 and the 2016 estimate was 841,971. Using this growth estimate rate, the U.S. Census data indicates that the population of El Paso would reach around 912,000 in 2028, and would reach 1,000,000 by roughly 2043. So, pursuant to EPA 40 CFR part 58 requirements, a near road NO2/CO monitoring site will most likely not be required in El Paso until well after 2028 due to this slower growth estimation rate. At this time and based on the data provided, EPA does not believe such a contingency would provide meaningful air quality benefit to the El Paso area.

Comment 2: The Commenter argues that statements made by the current EPA Administration on March 15, 2017 are an indication that the Tier 3 Motor Vehicle Emission and Fuel Standards may be repealed or weakened, and therefore the state's reliance upon these standards as Federal control measures is a tenuous assumption.

Response 2: We disagree with the Commenter. The EPA Administration's March 15, 2017 statements do not pertain to the Tier 3 Motor Vehicle Emission and Fuel Standards. See 79 FR 23414 (April 28, 2014). Rather, these statements concern reopening a mid-term evaluation of the National Program for greenhouse gas (GHG) emissions and fuel economy standards for light-duty vehicles, developed jointly by EPA and the National Highway Traffic Safety Administration (NHTSA). The Phase 2 standards of this program, applying to model years 2017-2025, were promulgated in the Final Rule for 2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards. 77 FR 62624 (October 15, 2012). This rulemaking is separate, distinct, and independent of the action we are addressing here. The October 15, 2012 rulemaking is therefore beyond the scope of this rulemaking action and we refer the Commenter to the October 15, 2012 action for further detail.

To EPA's knowledge, no such statements have been made concerning implementation of the Tier 3 Motor Vehicle Emission and Fuel Standards, and therefore the state's reliance upon these standards as valid Federal control measures is appropriate for this SIP action. At this time, we see no legal requirement for the state to revise the LMP with an explicit commitment to reevaluate its reliance thereof in the speculative chance that a Federal measure could be weakened or removed some time in the future. We note that in any case of Federal measures being repealed or weakened, pursuant to 42 U.S.C. 7410(k)(5), the EPA has Clean Air Act authority to require a state to revise an approved SIP if it finds that it has become substantially inadequate to maintain the NAAQS. Moreover, CAA section 175A provides the EPA discretion to require the state to submit a revised SIP should the area fail to maintain the NAAQS.

Comment 3: The Commenter claims that the El Paso CO LMP lacks an adequate contingency plan because the State has not identified an appropriate trigger, and “has not identified measures that will be promptly adopted nor . . . identified a schedule or procedure to implement additional control measures.”

Response 3: The State's September 21, 2016 LMP submission identifies violation of the CO NAAQS as a contingency trigger. EPA's interpretation of section 175A of the CAA, as it pertains to LMP's for CO, is contained in the October 6, 1995, national guidance memorandum titled “Limited Maintenance Plan Option for Nonclassifiable CO Nonattainment Areas” from Joseph Paisie, Office of Air Quality Planning and Standards.2 While the Commenter correctly notes that under EPA's guidance, “states are encouraged to choose a pre-violation action level as a trigger”, the guidance explicitly states that a violation of the NAAQS is an acceptable trigger.3 Further, the State has identified potential contingency measures, as well as a schedule and procedure for timely implementation in the event of a CO NAAQS violation.

EPA disagrees with the Commenter's contention that the maintenance plan's implementation schedules for contingency measures fail to satisfy the “prompt response” requirement in CAA section 175A(d). This section of the CAA requires that a maintenance plan include such contingency provisions as the Administrator deems necessary to assure that the state “will promptly correct any violation” of the NAAQS that occurs after redesignation of an area. Thus, Congress gave EPA discretion to evaluate and determine the contingency measures that EPA “deems necessary” to assure that the state will “promptly correct” any subsequent violation.

Section 175A does not establish any deadlines for implementation of contingency measures after redesignation to attainment. It also provides far more latitude than does Section 172(c)(9), which applies to a different set of contingency measures applicable to nonattainment areas. Section 172(c)(9) contingency measures must “take effect . . . without further action by the State or [EPA].” By contrast, section 175A(d) allows EPA to take into account the need of a state to assess, adopt, and implement contingency measures if and when a violation occurs after an area's redesignation to attainment. As noted by the U.S. Court of Appeals for the Sixth Circuit in Greenbaum v. EPA, 370 F.3d 527, 540 (6th Cir. 2004), that was cited by the Commenter, the EPA “has been granted broad discretion by Congress in determining what is `necessary to assure' prompt correction” under section 175A, and “no pre-determined schedule for adoption of the measures is necessary in each specific case.” In making this determination, EPA accounts for the time that is required for states to analyze data and address the causes and appropriate means of remedying a violation. EPA also considers the time required to adopt and implement appropriate measures in assessing what “promptly” means in this context.

In the case of the El Paso Area, EPA believes that the contingency measures set forth in the submittal, combined with the State's commitment to implement contingency measures as expeditiously as practicable but no later than 18 months of a trigger, provide assurance that the State will “promptly” correct a future NAAQS CO violation. Given the uncertainty regarding the nature of the contingency measures required to address a violation, a State may need up to 24 months to enact new statutes; develop new or modified regulations and complete notice and comment rulemaking; or take actions authorized by current state law that require the purchase and installation of equipment (e.g., diesel retrofits) or the development and implementation of new programs. In addition, EPA has previously approved implementation of contingency measures within 24 months of a violation to comply with the requirements of Section 175A in several instances. See, e.g., 81 FR 76891 (November 4, 2016), 80 FR 61775 (October 14, 2015), 79 FR 67120 (November 12, 2014), 78 FR 44494 (July 24, 2013), 77 FR 34819 (June 12, 2012), 76 FR 59512 (Sept. 27, 2011), 75 FR 2091 (January 14, 2010). EPA also notes that the Commenter did not provide any rationale for concluding that a suggested 120-day implementation period of control strategies is necessary to satisfy section 175A.

We are approving the CO LMP for the El Paso Area submitted by the TCEQ on September 21, 2016 as a revision to the Texas SIP because the State adequately demonstrates that the El Paso Area will maintain the CO NAAQS and meet all the criteria of a LMP through the second 10-year maintenance period.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 7, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

40 CFR part 52 is amended as follows:

Throughout this document, wherever “we”, “us” or “our” are used, it is intended to refer to the EPA.

On February 2, 2017, the EPA published its proposal to approve the FNSB Moderate Plan submitted by Alaska to address CAA requirements for the 2006 24-hour PM2.5 NAAQS in the FNSB NAA. 82 FR 9035. Specifically, we proposed to find that the FNSB Moderate Plan meets the substantive statutory and regulatory requirements for base-year and projected emissions inventories, precursor demonstrations, analysis and imposition of reasonably available control measures/technologies (RACM/RACT), reasonable further progress (RFP), quantitative milestones (QMs) and a demonstration that attainment by the December 31, 2015 attainment date was impracticable. We also proposed to approve the 2017 motor vehicle emissions budgets, state and local rules that were included in the FNSB Moderate Plan, and exceptional event demonstrations submitted by Alaska to address unrepresentative monitoring data that occurred during certain events. On July 26, 2017, Alaska withdrew from the EPA's consideration four provisions from its SIP submissions.1 The removal of these provisions does not affect this final action fully approving the FNSB Moderate Plan. For a description of Alaska's submissions, and our evaluation and rationale for the proposed action, please see the proposed rulemaking in the Federal Register at 82 FR 9035, February 2, 2017.

The EPA provided a 30-day period for the public to comment on our proposed action on the FNSB Moderate Plan which ended on March 3, 2017. During this comment period, we received five public comment letters. The public comments can be found in the docket for this action. Two commenters were supportive of efforts to improve air quality in general. One commenter expressed appreciation for the “strong standards implemented in 2006 that strengthened the 24-hour PM2.5 NAAQS.” The other commenter stated that “Alaska has certainly done their research and taken seriously their drafting of the proposed plan.” Three commenters opposed the EPA's proposed approval action. In general, these adverse comments questioned the approvability of Alaska's RACM/RACT analysis, Alaska's authority to enforce the requirements of the attainment plan, the stringency of the submitted regulations compared to existing state regulations, and expressed concerns about the high PM2.5 concentrations in the area and the resulting impacts on public health. We summarize the adverse comments and provide our responses in the following paragraphs.

Comment 1: Two commenters opposed the EPA's proposed approval of the FNSB Moderate Plan on the basis that it did not consider all potential measures that Alaska could have imposed to meet the RACM/RACT requirement for a Moderate area attainment plan. One commenter stated that “there are many available control measures for residential wood combustion that the State has neglected to consider” and provided as examples requirements for low-sulfur heating fuel, control measures based on housing density, programs to improve wood-burning device operation and maintenance, and training and certification programs for installers of wood stoves. The commenter then asserted that the “State was required to analyze these control measures to determine whether they are reasonable for Fairbanks.” The other commenter stated that “Alaska's consideration of technologically and economically feasible controls was impermissibly narrow” and provided as examples limiting the hours of operation for wood-heating facilities, and wood gasification and carbon capture and storage that Alaska did not evaluate or impose as part of the FNSB Moderate Plan.

Response 1: The EPA disagrees with these comments because Alaska adequately evaluated appropriate measures for the FNSB NAA for purposes of the FNSB Moderate Plan. Section 107(a) of the CAA provides states with both authority and primary responsibility for developing SIPs that meet applicable statutory and regulatory requirements for attaining, maintaining, and enforcing the NAAQS. States have discretion in formulating their attainment plans so long as they meet the applicable requirements of the Act.2 Additionally, the EPA has explained that the control measure evaluation process “generally allows states to apply reasoned judgment as they identify potential control measures for sources of direct PM2.5 and PM2.5 precursors in their respective nonattainment areas.” 81 FR 58037, August 24, 2016. For the reasons provided in our proposed rule and further in the following paragraphs, we conclude that the FNSB Moderate Plan provides for the implementation of all RACM/RACT that could reasonably be implemented in the FNSB NAA as required by CAA sections 172(c) and 189(a)(1)(C). We respond in the following paragraphs to the specific comments pertaining to the six potential control measures highlighted by the commenters.

Response 1.a. Low-sulfur heating fuel requirement as opposed to economic incentives. One commenter asserted that Alaska failed to evaluate, as part of the analysis for potential RACM/RACT control measures for residential wood combustion, a requirement for the use of low sulfur fuel “as opposed to merely providing incentives for its use.” The EPA reevaluated Alaska's analysis on low sulfur residential fuel oil in light of the comment. Alaska assessed the technological and economic feasibility of switching from the current residential heating oil used in the area to a low-sulfur fuel (FNSB Moderate Plan appendix III.D.5.7-41 and 5.7-57). Specifically, Alaska determined that the incremental cost of users switching to low sulfur fuel oil was not economically feasible for purposes of the FNSB Moderate Plan.

The EPA notes that the commenter may have believed that Alaska did not adequately evaluate the use of low sulfur fuel because Alaska did not separately consider both mandatory requirements to use such fuel and incentive programs to encourage the voluntary use of such fuel. Upon reviewing Alaska's analysis, however, we believe that the economic feasibility analysis for this control measure applies to both a mandatory requirement, as well as to incentives to use low-sulfur fuel. We note that while the subheading in the economic incentives section refers to “incentives,” the analysis is not limited to only providing incentives and more broadly analyzes the costs of low-sulfur fuel, whether implemented through a requirement or with incentives. The EPA acknowledges that the “incentives” subheading is somewhat confusing given the broader analysis that follows it, but we do not agree that Alaska failed to consider requirements to use low-sulfur fuel adequately for purposes of the FNSB Moderate Plan.

Alaska concluded that switching to low sulfur fuels would not be economically feasible; this conclusion would apply to both incentive-based and mandatory measures. We note that the FNSB NAA has been reclassified from Moderate to Serious, and Alaska will be required to prepare and submit for EPA review a Serious area attainment plan. 82 FR 21711, May 10, 2017. We anticipate that Alaska will thoroughly evaluate such control measures again, with updated economic data and in light of the longer Serious area attainment deadline, in developing the Serious area attainment plan for this area which requires analysis and implementation of Best Available Control Measures/Technologies (BACM/BACT).

Response 1.b. Control measures based on housing density. One commenter asserted that Alaska failed to consider restrictions on the use of certain residential heating devices based on population density, i.e., restricting the use of such devices in more densely populated areas. The commenter referenced San Joaquin Valley Air District Rule 4901 (SJV Rule 4901) as an example of a housing density-based control measure that Alaska did not consider. SJV Rule 4901 limits or prohibits new installations of heating devices based on the number of dwellings per acre. Although we agree that such control measures can be appropriate based on the facts and circumstances of a given area, we disagree with the commenter's assertion that Alaska did not consider all RACM/RACT in the FNSB Moderate Plan because it did not specifically evaluate a housing density-based control measure, like the one in SJV Rule 4901, for purposes of the FNSB Moderate Plan. In its January 6, 2017 clarification document (2017 Clarification), Alaska evaluated a general prohibition on new wood-heating device installations in the FNSB NAA and determined that it was not feasible because in extreme cold temperatures alternative sources of heat that do not rely on electricity and are not at risk of damage from freezing are a critical source of heating and must be an available option to the public. See 2017 Clarification, pp. 2 and 5. We note that the effect of limiting new wood-heating device installations based on housing density functionally results in prohibiting their installation for some homes. The rationale provided by Alaska for the infeasibility of a general prohibition on wood-heating device installations would also apply to prohibiting wood-heating device installations based on housing density. Thus, the EPA believes that it was not necessary for Alaska also to consider a housing density criterion (e.g., number of dwellings per acre) in evaluating a potential prohibition on new wood heating-device installations because it would not change the conclusion that prohibiting new wood-heating device installations is not feasible in the FNSB NAA.

In addition, we note that for a specific category of wood-heating devices, hydronic heaters, Alaska evaluated and implemented a setback requirement that prohibits new installations that are less than 330 feet from the property line. One purpose of this requirement is to restrict these sources, which typically emit larger amounts of pollutants, to less densely populated areas. In the 2017 Clarification, Alaska describes the effect of this control measure as limiting “the installation of hydronic heaters to large lots which are unlikely to exist in more densely populated areas.” 2017 Clarification, p. 7. The hydronic heater setback requirement is thus a density-based requirement that is tailored to address a specific type of heating device.

Response 1.c. Programs to improve wood-burning device operation and maintenance. One commenter asserted that Alaska neglected to consider programs to improve operation and maintenance of wood-burning stoves and fireplaces as a means of reducing emissions from residential wood combustion. We disagree that Alaska did not adequately evaluate and adopt programs to improve the use of residential wood heating devices. As we discussed in our proposal, Alaska evaluated and implemented public awareness and education programs on wood storage and heating device operation and maintenance. 82 FR 9044, February 2, 2017. We refer the commenter to the Alaska Department of Environmental Conservation's wood heating media Web page (http://dec.alaska.gov/air/anpms/pm/wshome.htm) and the Fairbanks North Star Borough local government's (Borough) air quality Web site (http://www.aqfairbanks.com) that contain brochures, television public service announcements, and videos about efficient wood-burning device operation and maintenance. The Borough's Web site also has an air quality pledge that residents can make that includes efficient wood-heating device operation and maintenance. If there are additional means to improve the operation and maintenance of wood stoves, we anticipate that Alaska will evaluate them during the development of the Serious area plan for the FNSB NAA.

Response 1.d. Installer training and certification programs for wood stove installers. One commenter stated that the EPA should not approve the FNSB Moderate Plan because Alaska did not consider implementing a training and certification program for residential wood combustion (RWC) device installers that was described in a 1989 EPA guidance document (1989 RWC Guidance).3 The 1989 RWC Guidance describes a state or local installer certification program that would offer a course in proper RWC device installation and design as a means of minimizing emissions from wood stoves.4 1989 RWC Guidance, p. 3-11. The EPA acknowledges that the 1989 RWC Guidance document remains in effect. However, since the publication of the 1989 RWC Guidance, national installer training and certification programs, such as the National Fireplace Institute (NFI) and the Chimney Safety Institute of America (CSIA), have come into existence. The EPA has confirmed that these national certifications are available to installers in the FNSB NAA and that there are currently seven certified installers in the area. See “NFI CSIA FNSB Certification List” in the docket for this action. We believe that the guidance recommendation for states to consider a state or local training and certification program for wood stove installers is adequately addressed in the FNSB NAA by the existence of national certification programs.

As discussed in the 1989 RWC Guidance, the effectiveness of an installer certification program depends in part on the extent to which installers and consumers participate in the programs. 1989 RWC Guidance p. 3-12. During development of the FNSB Moderate Plan, Alaska considered and responded to public comments about installation and certification programs by explaining that it had added to its outreach materials for users of wood stoves the EPA's recommendation for consumers to use certified installers. See FNSB Moderate Plan, appendix III.D.5.13-151. Additionally, although not a control measure in the FNSB Moderate Plan, we note that the EPA has awarded Alaska funding for a changeout program for the FNSB NAA that will provide funds to encourage users to replace old wood and pellet appliances and fireplaces with new EPA certified appliances or with oil or natural gas appliances that will help reduce emissions. The EPA grant providing these funds requires that participants in the program have the replacement appliances installed by a certified installer, a contracted hearth retailer, or a contractor under the approval and supervision of a contracted hearth retailer. This program is funded by the EPA's Targeted Airshed Grant and was awarded to Alaska on July 18, 2017.5 Finally, we anticipate that Alaska will further evaluate how to regulate emissions from wood stoves for purposes of meeting the BACM/BACT requirement in the Serious SIP, and this should include consideration of additional ways to encourage correct wood stove installations.

Response 1.e. Operating limitations on wood-heating facilities. One commenter stated that Alaska failed to consider operating limitations for sources such as requirements in site plans “that wood-heating facilities operate during limited hours per year.” We interpret the commenter's concern to refer to the type of operating plans typical for major stationary sources, in which a source might be subject to restricted hours of operation as one means of reducing emissions. Although the FNSB Moderate Plan identified wood heating as a primary source of PM2.5 in the area, major stationary wood-heating facilities, for which a site operating plan might be appropriate, were not identified as a source category in the emissions inventory and therefore no analysis of control measures was required. See 40 CFR 51.1009(a)(1). Accordingly, we do not believe it was necessary for Alaska to evaluate and impose this type of measure, given the absence of relevant sources. The EPA notes, however, that the FNSB Moderate Plan includes a more broadly applicable mandatory curtailment program that has limitations on the operation of wood-heating devices when PM2.5 ambient levels are forecasted to reach high values. See 82 FR 9043, February 2, 2017.

Response 1.f. Wood gasification and partial carbon capture and storage. One commenter suggested that Alaska's RACM/RACT analysis should have considered wood gasification and partial carbon capture and storage as an energy efficiency measure. The EPA disagrees that an analysis of these technologies is appropriate for a PM2.5 nonattainment area plan. These technologies are generally designed to reduce carbon dioxide emissions and are not considered viable control measures for reducing PM2.5.

Comment 2: Partial implementation was not considered. One commenter stated that the EPA should not approve the FNSB Moderate Plan because Alaska failed to consider the feasibility of implementing control measures in part, even if it concluded that full implementation of the measures was infeasible. The commenter suggested that the following control measures “might be implemented in stages or by employing a more targeted approach” (i) a ban on green wood sales; (ii) a requirement that all hydronic heaters be certified or have retrofits; (iii) a requirement that uncertified stoves in rental units be replaced; (iv) a requirement that rental units have alternate sources of heat; and (v) a requirement that new constructions have alternate sources of heat.

Response 2: We disagree with the claim that the EPA must disapprove the FNSB Moderate Plan because Alaska failed to assess partial implementation of the five control measures identified by the commenter. As discussed in the following paragraphs, Alaska either fully or partially implemented the control measures, or adequately addressed emissions in other ways that obviated the need to control the emissions through partial implementation of the control measures.

Response 2.a. Ban on green wood sales. Alaska rejected banning green wood sales (i.e., wood that has a moisture content greater than 20%) based on technological infeasibility. However, Alaska adopted other control measures that address the moisture content of wood to reduce emissions. First, wood sellers in the FNSB NAA are required to register with the State and they must disclose the moisture content of wood they sell to consumers. This will serve to assure that users of purchased wood will be on notice of the moisture content. Second, burning green wood in wood-fired heaters is prohibited in the FNSB NAA. This, in conjunction with the requirement on sellers to disclose moisture content, will serve to assure that purchasers will not burn green wood. The EPA considers the requirement to disclose the moisture content of wood for sale in conjunction with the prohibition on burning wet wood to be an adequate approach to reducing emissions from green wood for purposes of the FNSB Moderate Plan. It is unclear how the commenter's recommended partial implementation of a ban on green wood sales would accomplish additional emission reductions beyond the approaches already adopted by Alaska.

Response 2.b. Require all hydronic heaters to be certified or have retrofits. Alaska concluded that it was not feasible to require that all existing hydronic heaters in the FNSB NAA be replaced with specified certified models or to require retrofits for such heaters. However, the FNSB Moderate Plan includes a Borough code requirement that an owner of an existing uncertified hydronic heater that has had two or more violations of certain Borough code emissions provisions must remove the device, unless certain conditions are met. Additionally, Alaska required that all hydronic heaters installed after February 28, 2015 be qualified under the EPA's Phase 2 program or meet certain emission standards. We also note that owners of existing hydronic heaters are eligible to receive incentives for removal or replacement of the devices through the Borough's changeout program. Furthermore, all hydronic heaters are subject to a 20 percent opacity limit, a requirement to use dry wood, and must comply with wood heating curtailments. Also, hydronic heaters that do not meet certain emission standards must be removed upon conveyance of property. Through this suite of overlapping requirements, we believe that Alaska has adequately addressed emissions from uncertified hydronic heaters for purposes of the FNSB Moderate Plan. The EPA expects that Alaska will evaluate the need for further controls, such as expanded changeout incentives or retrofits to existing uncertified hydronic heaters, as part of the BACM/BACT analysis for the Serious area attainment plan for this area.

Response 2.c. Replace uncertified stoves in rental units. The FNSB Moderate Plan includes a requirement that uncertified wood-fired heating devices must be removed when a property is leased. The requirement became effective on June 9, 2017. Because this control measure has been fully implemented, consideration of partial implementation is unnecessary. We note that the wood heating device emission standards in the FNSB Moderate Plan do not allow the installation of uncertified devices. Therefore, once an uncertified wood stove has been removed from a rental unit, it cannot be replaced with an uncertified device.

Response 2.d. Require rental units to have alternate sources of heat. In the FNSB Moderate Plan, Alaska explained that surveys from 2011-2015 indicated that only 5.6% of households surveyed had wood as a sole source of heat. See 2017 Clarification, p. 12. This number included both rental and owner occupied homes, so presumably the number of rental units without alternative sources of heat would be smaller. We note, however, that the FNSB Moderate plan does not allow owners of newly constructed buildings, including rental properties, to obtain a “no other adequate source of heat” (NOASH) determination. A NOASH determination allows a person to use a solid fuel or waste oil burning appliance during a stage 2 or stage 3 curtailment. To qualify for a NOASH determination, a building owner or manager must file an application with the Borough confirming that the building has no adequate heating source other than a solid fuel or waste oil burning appliance, that economic hardships require the use of a solid fuel waste oil burning appliance, or that complying with a curtailment would result in damage to property. Prohibiting newly constructed buildings, including rental properties, from obtaining a NOASH determination functionally requires the installation of alternate sources of heat so that the building occupants can comply with wood heating curtailments. We anticipate that Alaska will revisit further controls for rental units in developing its Serious area attainment plan.

Response 2.e. Require new construction to have alternate sources of heat. As discussed previously, a provision that addresses this control measure was included in the FNSB Moderate plan. The provision excludes owners of newly constructed buildings from obtaining a NOASH determination which functionally requires the installation of alternate sources of heat in new buildings so that the building occupants can comply with wood heating curtailments.

Comment 3: One commenter stated that the technological feasibility analysis in the FNSB Moderate Plan is inadequate because Alaska took the position that it was impeded from implementing certain control measures due to local opposition evidenced by a citizen's referendum prohibiting regulation of home heating sources, and that when the referendum was lifted, Alaska continued to dismiss the control measures due to insufficient time to revise the Moderate area attainment plan. This commenter also stated that not enough has been done to render the 2014 submission compliant with the CAA.

Response 3: We acknowledge that Alaska's initial December 2014 submission cited a citizen's referendum as a basis for not adopting many potential control measures. As we explained in our proposal, the EPA does not view social acceptability, including the citizen's referendum prohibiting regulation of home heating sources in any manner, to be an appropriate basis for rejecting required emission control measures. See 82 FR 9045, February 2, 2017.

Significantly, however, the situation about which the commenter was concerned has changed because the referendum no longer applies and Alaska has evaluated additional control measures for inclusion in the FNSB Moderate Plan. Alaska provided supplemental SIP submissions, supported by clarifying information, that analyzed the control measures that it previously considered infeasible due to the citizen's referendum, including the control measures identified by the commenter. Based on this revised analysis, Alaska adopted some additional control measures, such as the mandatory solid-fuel heating device curtailment program, but continued to find some control measures infeasible for reasons unrelated to the expired referendum, such as the ban on green wood sales.

Alaska's supplemental submissions provided additional control measures and an updated and revised analysis for certain components of the FNSB Moderate Plan to ensure that the EPA could evaluate and act on the current plan. As a result, and as the commenter notes, there is some information in the original submission that is outdated and that was made extraneous by the supplemental submissions. However, the supplemental submissions clearly identify the portions of the original submission that were updated and revised and we do not believe that the extraneous material that remains in the original submission is a basis for disapproving the FNSB Moderate Plan. As explained in response to comments concerning specific potential control measures, we have concluded that Alaska's evaluation of the measures is adequate for purposes of the FNSB Moderate Plan.

Comment 4: One commenter argued that the EPA cannot approve the FNSB Moderate Plan because Alaska made errors in reasoning. The commenter provided as an example, Alaska's assessment of a ban on new installations of hydronic heaters and the assumption that such a ban could have the negative effect of prolonging the use of older devices because new installations would be prohibited. The other example the commenter provided was Alaska's assumption that the benefits would be small for a requirement that rental units in the FNSB NAA have alternative heating sources.

Response 4: We do not agree that the specific Alaska assumptions the commenter referenced are inappropriate, given the facts and circumstances in the FNSB NAA. In evaluating a potential ban on new installations of hydronic heaters, Alaska's primary explanation for why such a control was not appropriate was that “due to arctic conditions, alternative sources of heat must be an available option to the public to protect health, life, and property.” 2017 Clarification, p. 2. The assumption referenced by the commenter, that implementing such a ban may discourage replacement of older and higher emitting hydronic heaters, was an additional consideration for not banning new hydronic heaters installations. We believe that it was reasonable for Alaska to take into consideration the potential impacts that a ban on new hydronic heaters might have on Alaska and the Borough's ongoing efforts to encourage replacement of older and higher emitting devices with newer, cleaner burning devices. Alaska developed the FNSB Moderate Plan through an extensive public process and adopted a suite of controls for reducing the emissions from hydronic heaters that are intended to help bring the area into attainment. The decision not to impose a ban because it might unintentionally undercut other related measures is not unreasonable. We anticipate that Alaska will further evaluate this emissions source as part of its development of the Serious area plan for the FNSB NAA.

Regarding Alaska's statement that the benefits are assumed to be small for requiring alternate sources of heat in rental units, we believe that Alaska made reasonable assumptions based on the latest information available at the time. For example, Alaska explained that surveys from 2011-2015 indicated that only 5.6% of households surveyed had wood as a sole source of heat. See 2017 Clarification, p. 12. This number included both rental and owner-occupied homes, so presumably the number of rental units without alternative sources of heat would be smaller. We anticipate that Alaska will revisit the analysis of rental units with updated information in developing its Serious area attainment plan.

Comment 5: One commenter argued that the wood-fuel cost assessment in the FNSB Moderate Plan is incomplete because it does not accurately reflect the full cost of burning wood as a fuel, such as the value of a homeowner's time and the cost of ash disposal, and the fact that more fuel is needed to heat a building in Fairbanks than in the rest of the country.

Response 5: We agree with the commenter that an economic feasibility analysis should include a range of costs associated with potential control measures for a given type of emissions source. Considerations of economic infeasibility are used to exclude control measures during the RACT/RACM analysis. The EPA notes, however, that Alaska did not reject any control measures based on the costs associated with use of wood as a fuel. The cost assessment referenced by the commenter provided background information on mandatory curtailment programs as a potential control measure. See FNSB Moderate Plan appendix III.D.5.7-16. In the initial FNSB Moderate Plan, Alaska considered the mandatory curtailment program to be technologically infeasible. See FNSB Moderate Plan appendix III.D.5.7-27, 32, 39. Alaska did not conduct an economic feasibility analysis on any wood heating control measure found to be technologically infeasible. As discussed in our proposal, Alaska provided a supplemental submission supported by clarifying information that reevaluated the technological feasibility of various control measures and adopted and implemented the mandatory curtailment program that was the subject of the earlier cost analysis referenced by the commenter. See 82 FR 9045, February 2, 2017.

Comment 6: One commenter alleged that Alaska's RACT conclusion “is flawed, at least with respect to the control of sulfur dioxide (SO2) at local power plants,” and that Alaska “unjustifiably concluded that the current level of controls meets RACT.” The commenter referred to dispersion modeling and the speciation analysis in the FNSB Moderate Plan to show that SO2 precursor emissions from major stationary sources contribute to exceedances of the 2006 24-hour PM2.5 NAAQS.

Response 6: The EPA agrees that SO2 emissions from major stationary sources contribute to the PM2.5 concentrations in the FNSB NAA, as does Alaska. We did not propose to approve, nor did Alaska provide, a demonstration that SO2 emissions from stationary sources were insignificant in the formation of ambient PM2.5 concentrations in the FNSB NAA. Accordingly, SO2 is a precursor that Alaska evaluated for emission controls in this area for purposes of attaining the 2006 24-hour PM2.5 NAAQS.

As explained in our proposed approval of the FNSB Moderate Plan with respect to this issue, Alaska conducted a technical and economic feasibility analysis of RACT-level SO2 controls for major stationary sources in the FNSB NAA and concluded that additional controls beyond those already in place were not feasible. 82 FR 9044, February 2, 2017. The EPA has explained that a state could demonstrate that an existing source in an area should not be subject to a specific control technology especially where such technology is unreasonable in light of the area's attainment needs, or where such technology is infeasible. In such a case, a state could conclude that no control technology is “reasonably available,” and thus RACT for the source could be the existing emission controls rather than additional controls. See 81 FR 58034, August 24, 2016.

Additionally, the commenter did not identify any specific deficiencies with respect to Alaska's RACT analysis for SO2 emissions from major stationary sources for the EPA to evaluate the claim that Alaska's conclusion is unjustified. The EPA finds that Alaska adequately justified its conclusions that its stationary source control measures represent the adoption of reasonable control measures that meet RACM/RACT requirements for purposes of the Moderate FNSB Plan for the 2006 24-hour PM2.5 NAAQS. We note that the FNSB NAA has been reclassified from Moderate to Serious, and thus Alaska will be required to conduct a BACM/BACT analysis for potential control measures for the Serious area attainment plan. 82 FR 21711, May 10, 2017. Accordingly, Alaska's conclusion that additional SO2 emissions controls for these stationary sources were not feasible for purposes of meeting RACM/RACT requirements must be revisited in the context of the more stringent BACM/BACT analysis for the Serious area attainment plan.

Comment 7: We received two comments that expressed concern regarding the availability of natural gas as an alternative fuel in the FNSB NAA. One commenter stated that Alaska has failed to supply the area with natural gas, that the infrastructure is not in place, and that the area is years away from having natural gas. Another commenter identified language in the FNSB Moderate Plan in which Alaska discussed the possibility of a public-private partnership for bringing additional natural gas to the community that has not yet occurred. This commenter stated that “to the extent the SIP relies upon these references, it cannot be approved.”

Response 7: The commenters are correct that Alaska has been exploring the expanded use of natural gas as an alternative fuel in the FNSB NAA as a potential means of helping to reduce emissions and to attain the 2006 24-hour PM2.5 NAAQS, but thus far natural gas is not widely available in the area. To provide natural gas at scale, significant investments of time and money are needed to construct the infrastructure to deliver natural gas to Fairbanks and to distribute it to consumers. Thus, in the FNSB Moderate Plan, Alaska described plans to seek to expand the availability of natural gas in the future. Because natural gas is currently not available at a meaningful scale it was not included as part of Alaska's control strategy analysis and Alaska did not take credit for emissions reductions related to natural gas in the FNSB Moderate Plan.6 Alaska's discussion of potential expansion of natural gas in the FNSB Moderate Plan is not a basis for disapproval of the FNSB Moderate Plan. Because of the potential emission reduction benefits, the EPA supports efforts by Alaska to expand the availability of natural gas in the FNSB NAA in the future.

Comment 8: One commenter objected to the EPA's statement in the proposal that Fairbanks was relatively new to programs for reducing emissions from wood heating and, prior to 2015, the community had not experienced mandatory curtailments on solid-fuel heating devices. The commenter claimed that this statement was used to justify limitations on the applicability of the curtailment requirements for solid fuel heating devices in the FNSB Moderate Plan.

Response 8: We disagree with the commenter's characterization of the statement in the proposal as the EPA's justification for approval of Alaska's curtailment requirements, including certain limitations on those requirements. In the sentence preceding the one cited by the commenter, we provided the reasons for our conclusion that the limitations on the applicability of the curtailment requirements are appropriate: “The EPA concludes that in the FNSB NAA, where wintertime temperatures can be extreme and there is limited availability of fuel alternatives such as natural gas, the three limitations in Alaska's mandatory solid-fuel heating device curtailment program similarly invoke public welfare considerations that are appropriate in the context of a Moderate area plan.” See 82 FR 9046, February 2, 2017. In short, given the facts and circumstances of this area, Alaska concluded that it was not reasonable to prohibit the use of solid fuel heating devices during periods of extreme cold weather. Our conclusion regarding the appropriateness of the limitations that Alaska included in the curtailment requirements remains unchanged. The reference to the newness of the curtailment program questioned by the commenter was merely an EPA acknowledgment that a two-stage program could help to facilitate effective implementation of the program in the community. This statement is based on the EPA's experience in other nonattainment areas where adoption and implementation of a curtailment program has required efforts to increase community awareness and comprehension of the curtailment program in order to achieve the anticipated emissions reductions.

Comment 9: One commenter objected to our proposal to approve, as SIP strengthening, the control measures that Alaska submitted as contingency measures in the FNSB Moderate Plan. The commenter explained that Alaska did not provide a justification for not implementing these control measures immediately and that they must be included in the RACM analysis and adopted immediately. In other words, the commenter asserted that Alaska could not set aside these control measures to meet the CAA section 172(c)(9) requirement for contingency measures because Alaska was required to impose these measures to meet the RACM/RACT requirement instead.

Response 9: The control measures the EPA proposed to approve as SIP-strengthening measures are: (1) A requirement that uncertified wood-fired heating devices be removed when a property is sold, leased, or conveyed, and (2) a mandatory wood seller registration and wood moisture disclosure program. See 82 FR 9052, February 2, 2017. Specifically, we are approving 18 AAC 50.076(d)-(i) and 18 AAC 50.077(a)(2)(B). These provisions will become federally enforceable upon the effective date of this action. However, we disagree with the commenter's assertion that Alaska did not evaluate these control measures as potential RACM/RACT measures. Alaska evaluated both of these control measures and they have been implemented. See 2017 Clarification pp. 3-5. The requirement that uncertified wood-fired heating devices be removed when a property is sold, leased, or conveyed became effective on June 9, 2017 and the mandatory wood seller registration and wood moisture disclosure program became effective on August 15, 2017.7

Comment 10: One commenter opposed the EPA's proposed approval of the FNSB Moderate Plan because of concerns that the control measures in the plan are not enforceable. One commenter took issue with Alaska's enforcement authority claiming that “outside of seeking voluntary compliance, the State claims that its only real enforcement mechanism is civil litigation.” Another commenter stated that “Alaska has made no good faith effort to secure `enforcement authority' from the Alaska legislature.” This commenter also contends that “[t]he state legislature granted $350 Million dollars to privately owned refineries and a shuttered Agrium Fertilizer plant, yet claims they lack resources to implement regulations and enforce them.”

Response 10: We agree that states must have authority to enforce the requirements of their SIPs to meet various CAA requirements, including CAA section 110(a)(1), 110(a)(2)(C), and 110(a)(2)(E). We disagree with the commenter, however, that Alaska lacks the required enforcement authority. States are required to have a SIP that provides for the implementation, maintenance, and enforcement of the NAAQS. Whenever the EPA promulgates a new or revised NAAQS, the CAA requires states to make a SIP submission, commonly known as an “infrastructure SIP” to establish that they meet a host of requirements including those pertaining to general enforcement authority.

In November 2014, the EPA approved Alaska's infrastructure SIP for the 2006 24-hour PM2.5 NAAQS. 79 FR 66651, November 10, 2014. The EPA found that the infrastructure SIP addressed the basic program elements in accordance with CAA section 110(a)(1) and (2), including, but not limited to regulatory structure, monitoring, modeling, legal authority, and adequate resources necessary to implement, maintain, and enforce the standards. Relevant to this comment, the EPA found that Alaska's SIP met the CAA section 110(a)(2)(C) requirement to include a program to provide for the enforcement of emission limits and other control measures in the SIP and also met the CAA section 110(a)(2)(E) requirement that a state provide necessary assurances that it has adequate authority under state law to carry out the SIP. Alaska's infrastructure SIP submission for the 2006 24-hour PM2.5 NAAQS referred to Alaska Statute (AS) 46.14.030 State Air Quality Control Plan which provides the Alaska Department of Environmental Conservation (ADEC) statutory authority to act for the State and adopt regulations necessary to implement the State Air Quality Control Plan. It also references 18 AAC 50.030 State Air Quality Control Plan which provides regulatory authority to implement and enforce the SIP. See 79 FR 66651, November 10, 2014 and 79 FR 41502, July 16, 2014. Furthermore, ADEC has statutory authority to enforce violations of air quality regulations by seeking the assessment of civil penalties (AS 46.030.760) and criminal penalties (AS 46.030.790). The EPA's analysis of the adequacy of enforcement authority is premised on whether a state has legal authority to enforce the SIP. The commenter's concern that ADEC may opt to seek voluntary compliance does not negate the fact that it has the necessary enforcement authority to require compliance with the SIP. A state's election to seek voluntary compliance rather than proceeding to judicial enforcement is an exercise of enforcement discretion. The EPA notes that a state's exercise of enforcement discretion does not affect the ability of the EPA to pursue enforcement under CAA section 113 or others pursuant to the citizen's suit provision in CAA section 304.

We also disagree with the comment suggesting that ADEC must justify the absence of administrative enforcement authorities. The commenter argues that AS 46.14.030 generally grants authority to ADEC to adopt regulations to implement the SIP which could be read to include administrative enforcement authority. As noted previously, ADEC has authority to pursue civil and criminal judicial actions to enforce violations of the SIP and the EPA has already determined that ADEC has adequate authority to enforce the SIP, including the FNSB Moderate Plan. If the commenter believes ADEC should have additional enforcement authority, the appropriate venue to pursue such a concern is with ADEC and the Alaska State Legislature. Furthermore, as noted by the commenter, the Borough has authority to issue warnings and citations to enforce key control measures adopted at the local level, such as the solid-fuel heating device curtailment program. The Borough control measures are included in Alaska's FNSB Moderate Plan submission and will become a part of the federally-approved SIP.

Another commenter contended that Alaska claimed it lacks the resources to implement and enforce regulations. The EPA is unaware of any such statement attributable to Alaska submitted as part of the FNSB Moderate Plan, and the commenter provided no reference or citation for the EPA to evaluate this claim. Accordingly, the EPA has no information suggesting that Alaska has stopped funding, or lacks resources to make progress in improving air quality in the FNSB NAA. In fact, ADEC currently is devoting resources to the development of a Serious area attainment plan and the Borough is implementing local control measures incorporated into the SIP. In addition, as indicated previously, the EPA found that in its infrastructure SIP for the 2006 24-hour PM2.5 NAAQS, Alaska demonstrated that it had “adequate resources to implement, maintain, and enforce the standards” and thus met the 110(a)(2)(E)(i) requirement for adequate resources. 79 FR 66651, November 10, 2014.

Comment 11: One commenter noted that control measures in SIPs must apply continuously and “cannot operate as a `suite' of controls that only collectively apply continuous controls.” The commenter specifically pointed to the −15 °Fahrenheit (F) temperature limitation on the mandatory solid-fuel heating device curtailment requirement as an example of “perhaps a defensible exception for the needs of the community, but one that results in the waiver of controls during peak periods of emissions.” The commenter also observed that the EPA and citizens must have the ability to bring enforcement actions to assure compliance and that state and local control measures that shield pollution sources from enforcement are not enforceable as required under CAA section 110(a)(2)(A).

Response 11: First, the EPA disagrees with the commenter's general contention that a suite of control measures that operate together to provide for continuous regulation of emissions from a source is inconsistent with CAA requirements. The EPA agrees that SIP emission limitations must limit emissions from sources on a continuous basis. However, it may be infeasible for a single numerical emission limitation or control technology to apply continuously at all times to some sources. In such circumstances, a state may elect to impose alternative emission limitations that apply to specific modes of source operation in order to assure that emissions from the source are, in fact, continuously controlled. The EPA recently restated and updated its policy with respect to continuous emission limitations in SIP provisions, noting that emission limitations as a whole must be continuous but that such limitations could be a combination of different numerical limits, control requirements or work practice requirements. See 80 FR 33889, June 12, 2015. Accordingly, a SIP that includes a combination of numerical limits or controls that are sufficiently stringent, and are legally and practically enforceable, can effectively operate together to limit emissions from a source on a continuous basis.

Second, the EPA disagrees with the commenter's view that the low temperature limitation on the applicability of the mandatory solid-fuel heating device curtailment requirement necessarily constitutes an impermissible exemption in the emissions limitation, because the curtailment requirement works in conjunction with other specific control measures in the SIP that continue to apply and limit emissions from this source category even during those low temperature events. It is important to clarify how Alaska is combining control measures in order to assure that the SIP imposes continuous emission limits on solid fuel heating devices, even when the curtailment requirement is suspended during extreme cold events.

Alaska is aware of the public health concerns associated with ambient PM2.5 caused by the use of solid fuel heating devices and devised a way to balance competing concerns about high PM2.5 concentrations with concerns about the need to provide adequate heat during extreme low temperature events for purposes of the FNSB Moderate Plan. When temperatures are below −15 °F, the Borough continues to issue alerts based on the forecasted concentrations of PM2.5. Stage 2 alerts are called when PM2.5 levels are forecasted to reach 35 micrograms per cubic meter (µg/m3) or more. Stage 3 alerts are called when PM2.5 levels are forecasted to reach 55µg/m3 or more. The temperature limitation on the applicability of stage 3 alert requirements was included to address the public welfare concerns associated with precluding the use of solid-fuel heating devices during periods of extreme cold. Alaska explained that “. . . the temperature threshold is a feature of the episode program recognizing the unique challenges faced by residents during periods of extreme cold. Residents use wood heating as a form of supplemental heat to maintain livable conditions and mitigate economic hardships associated with high heating costs.” 2017 Clarification, p. 18.

To address these competing concerns, Alaska and the Borough structured the stage 3 alert requirements to allow the continued use of certain devices during periods of extreme cold. When temperatures are below −15 °F during stage 3 alerts, the prohibition on the use of all solid-fuel heating devices, masonry heaters, pellet fuel burning appliances, cook stoves, fireplaces, or waste oil burning appliances does not apply. However, the stage 2 prohibition on the use of uncertified solid-fuel heating devices and hydronic heaters that are not EPA Phase II qualified continues to apply. In addition, even when the temperature limitation on the applicability of stage 3 alerts applies, the users of solid-fuel heating devices must continue to meet the applicable opacity emission limitation and continue to comply with the requirement to burn only dry, properly seasoned wood (with a moisture content of 20% or less). Thus, the EPA believes that the opacity limit and dry wood requirement work in conjunction with the mandatory curtailment program to limit emissions from solid-fuel heating devices on a continuous basis, even for stage 3 alerts that occur during periods of extreme cold.

The EPA notes that Alaska is currently in the process of developing the Serious area plan for the FNSB NAA, and is reevaluating the need for additional emission reductions to attain the 2006 24-hour PM2.5 NAAQS. In particular, Alaska is considering the need for emissions reductions during periods of extremely low temperatures, which can often coincide with meteorological conditions most likely to result in inversions and exceedances of the 2006 24-hour PM2.5 NAAQS. Specifically, on July 18, 2017, Alaska proposed regulatory revisions to eliminate the current temperature threshold limitation as part of its efforts to develop a Serious area plan. The EPA supports the further efforts of Alaska and the Borough to address the difficult, but necessary issue of controlling emissions during periods of extreme low temperatures.

Finally, the EPA agrees with the commenter that state and local control measures in the SIP need to be legally and practically enforceable. A core principal of the CAA is that the EPA's approval of a control measure into a SIP makes the measure a federally-enforceable component of the SIP that the State, the EPA or citizens can enforce in the event of violations. In this final action, the EPA is approving into the Alaska SIP, among other control measures, the mandatory solid-fuel heating device curtailment program, the 20% opacity emission limitation, and the dry wood requirement, and these measures will become federally-enforceable elements of the SIP for the FNSB NAA.

Comment 12: One commenter claimed that the EPA must disapprove the FNSB Moderate Plan because it “includes undesirable and unlawful relaxations of existing SIP measures, in violation of CAA Section 110(l).” For this reason, the commenter objected to six specific State regulations that Alaska included in the FNSB Moderate Plan.

Response 12: In light of this comment, the EPA reanalyzed the six regulations identified by the commenter. A comparison of the State regulations submitted to the EPA for review and approval into the SIP against existing SIP provisions is provided in the docket for this action. We respond in the following paragraphs to the concerns identified by the commenter with respect to these specific regulations. For the reasons stated in the following paragraphs, we disagree that the submitted regulations constitute relaxations, and thus the inclusion of these measures into the SIP as part of the FNSB Moderate Plan does not raise concerns related to CAA section 110(l).

Comment 12.a. 18 AAC 50.065(f). Wood Smoke Control and PM 2.5 Nonattainment Areas. The commenter objected to our approval of a provision that prohibits open burning from November 1 to March 31 because Alaska did “not adequately explain how the dates for the open burning ban were chosen.” The commenter expressed concern that exceedances of the 2006 24-hour PM2.5 NAAQS may occur outside the November 1 to March 31 open burning prohibition season. The commenter also objected to language in the FNSB Moderate Plan that would allow a local open burn permit program to replace the current open burning prohibition at some point in the future because it is “worded so vaguely without any limits” and does not specify “a process for State approval” or “minimum program requirements, including record-keeping, public reporting, and adequate enforcement authority.” Additionally, the commenter stated that “[i]f it is necessary to authorize some variances to the seasonal open burn ban—for example, for legitimate ceremonial or limited recreational purposes—the State should have adopted detailed regulatory language identifying the types of activities that might be eligible for a local variance and necessary conditions for any such variance.”

Response 12.a. We disagree with the comment that Alaska did not adequately explain the dates of the open burning prohibition, November 1 to March 31, in the FNSB Moderate Plan. We believe that the discussion of the open burning prohibition is adequate, including Alaska's explicit consideration of lengthening the open burning prohibition to include October and April. See FNSB Moderate Plan III.D.5.7-22. As noted by the commenter, Alaska explained that it analyzed air quality data for October and April and did not identify “significant air quality deterioration in those months as a result of normal open burning” and therefore, did not lengthen the open burning prohibition to include those two months. Regarding the commenter's concern that exceedances of the 2006 24-hour PM2.5 NAAQS may occur outside the open burning prohibition season, we note that under 18 AAC 50.065(e), ADEC can also prohibit open burning during air quality advisories, which are not restricted to the open burning season. As provided in 18 AAC 50.065(e), the air quality advisory pertaining to open burning is based on a determination that there is or will likely be inadequate ventilation to maintain ambient air quality standards, including PM2.5.

We also disagree with the commenter's assertion that the amendments to 18 AAC 50.065(f) are a relaxation of existing SIP measures. The dates of the open burning prohibition remain the same as when the EPA last approved 18 AAC 50.065(f) into the Alaska SIP in 1998. 63 FR 63983, November 18, 1998. More importantly, the amendments to 18 AAC 50.065(f) make the open burning prohibition applicable to PM2.5 nonattainment areas, whereas previously the prohibition applied only to PM10 wood smoke control areas. Therefore, the amendments to 18 AAC 50.065(f) that extend the regulation to PM2.5 nonattainment areas in fact strengthen the existing SIP.

Similarly, we disagree with the commenter's view that inclusion of the language contemplating a potential future open burn permit program to replace the current open burning prohibition is a relaxation of the existing Alaska SIP. First, as stated previously, the current SIP-approved regulation applies only to PM10 wood smoke control areas and Alaska has now extended it to PM2.5 nonattainment areas as well. Second, as required by 18 AAC 50.065(f)(1) and (2), if a local area elects to develop an open burn permit program instead of the current open burn prohibition, it may only do so if the program (i) does not cause or contribute to violations of the PM2.5 NAAQS and (ii) is approved into the State Air Quality Control Plan as adopted in 18 AAC 50.030. We have determined that Alaska's amendment of 18 AAC 50.065 to extend the open burning prohibition to PM2.5 nonattainment areas while simultaneously allowing the future option of a local air quality open burn permit program is therefore not a relaxation, but a strengthening of the current SIP.

Regarding the commenter's concern that the amendment is vague and does not provide limits or specify a process for state approval of a local open burn permit program, we note that the provision does not itself constitute an approval of any such local open burn permit program. The provision merely contemplates such a permitting program in the future, and one that would have to meet certain requirements. For example, the condition in 18 AAC 50.065(f)(1) that a local open burn permit program cannot cause or contribute to violations of the PM2.5 NAAQS provides one appropriate limitation on potential open burn permit programs. Additionally, Alaska has an established process for approving plans and adopting them into 18 AAC 50.030. The condition in 18 AAC 50.065(f)(2) that the local open burn permit program must be included in the State Air Quality Control Plan adopted by reference in 18 AAC 50.030 provides an appropriate state process for evaluation and approval of any such potential program in the future. We also note that if Alaska seeks to create such an open burn permit program in the FNSB NAA in the future, that will require a SIP revision subject to EPA review and approval, including an analysis that the SIP revision would not be less stringent than the current SIP in accordance with the requirements of CAA 110(l). Alaska has confirmed that the approval of any open burn permit program in the future must be submitted to the EPA as a SIP revision. Alaska's interpretation letter is included in the docket for this action.8

With respect to the commenter's concern that the language in the FNSB Moderate Plan that contemplates potential future open burn permit programs in lieu of the prohibition on open burning is vaguely worded and provides no indication of “what constitutes a lawful local air quality open burn permit program and no limit to the range of activities that might be authorized . . .” the EPA agrees that the amendment leaves unaddressed many aspects of a local open burn permit program that would need further development and clarification. Also, as noted previously, any future local open burn permit program that is developed to operate in lieu of the open burning prohibition must be submitted to Alaska for incorporation into the State Air Quality Control Plan and then submitted to the EPA for review and approval. Accordingly, assuming a local open burn permit program is developed in the future, the appropriate time to consider the issues the commenter raises, e.g., the range of activities authorized by the program, recordkeeping and reporting requirements, adequate enforcement authority, and other aspects that pertain to the lawfulness of the program, including whether the program adequately assures that permitted open burning will not cause or contribute to a violation of the PM2.5 standard, would be when a locality develops and then submits such a permit program to Alaska and the EPA for review. At present, 18 AAC 50.065(f) merely clarifies that localities can chose to pursue a permit program in lieu of an outright seasonal prohibition on open burning. To the extent the commenter is concerned about reliance on a local, rather than state permitting program, we previously determined that Alaska provided necessary assurances that “where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any SIP provision, the State has responsibility for ensuring adequate implementation of the SIP” with respect to the 2006 24-hour PM2.5 NAAQS as required by CAA section 110(a)(2)(E)(iii). 79 FR 66651, November 10, 2014.

Finally, we disagree with the commenter's suggestion that a future open burn permit program would have to address the process for variances related to ceremonial and recreational fires. We note that ceremonial and recreational fires are specifically excluded from Alaska's amended definition of open burning in 18 AAC 50.990(65)(B). Because these activities are not subject to the open burning prohibition, there would not be a need for future variances related to such fires. We agree, however, that to the extent a future permitting program may include a process for seeking variances for activities subject to the burn ban, provisions related to such variances should provide adequate definitions and specifications to allow for necessary implementation and enforcement, as well as evaluation by Alaska and the EPA before approval as a revision to the current SIP.

Comment 12.b. 18 AAC 50.075(d). Solid Fuel-fired Heating Device Visible Emission Standards. The commenter objected to the addition of 18 AAC 50.075(d) which limits solid fuel-fired heating device operation during PM2.5 air quality episodes. The commenter claimed that the provisions weaken another part of the existing SIP-approved portion of the regulation, paragraph (b), by providing conditions for lifting a prohibition on the use of wood-fired heating devices during an air quality episode. The commenter also objected to the provisions that allow for a temporary waiver from the requirement because they are “too broad and too discretionary.” However, the commenter acknowledged that due to the “extremely cold winter and high price of fuel in Fairbanks, exemptions from curtailment for a sole source of heat and financial hardship are an absolute necessity.” Additionally, the commenter stated that Alaska should adopt a curtailment program similar to one in Sacramento, California. The commenter also suggested that “to ease the impact of a mandatory, episodic wood-burning curtailment program on community members,” Alaska should adopt a “fuel oil subsidy program that would help offset the additional expense of fuel oil use.”

Response 12.b. The EPA disagrees that the addition of new 18 AAC 50.075(d) creates a relaxation of existing 18 AAC 50.075(b) as contemplated by CAA section 110(l). We note that paragraph (b) only prohibits operation of a wood-fired heating device in an area for which Alaska has declared an air quality episode with respect to SO2, carbon monoxide (CO), or PM10, in accordance with 18 AAC 50.245. Neither 18 AAC 50.075(b) nor 18 AAC 50.245 explicitly applied to PM2.5. Alaska has specifically added the new 18 AAC 50.075(d), and the related new 18 AAC 50.246, to impose a comparable prohibition on wood-fired heating devices in areas for which Alaska has declared an air quality episode specifically for purposes of the PM2.5 NAAQS. The existing prohibition on operation of wood-fired heating devices in 18 AAC 50.075(b) is thus unaffected by the addition of 18 AAC 50.075(d), which applies only to PM2.5. Furthermore, the addition of paragraph (d) provides limitations on solid-fuel heating device operation in PM2.5 nonattainment areas that previously did not exist in the Alaska SIP. Therefore, we consider the addition of paragraph (d) to be a necessary strengthening of the existing SIP, not a relaxation.

However, we believe the commenter raised valid concerns with the waiver provisions in 18 AAC 50.075(d)(2). The EPA is not taking final action on these waiver provisions because they are no longer part of the submitted FNSB Moderate Plan. On July 26, 2017, Alaska withdrew 18 AAC 50.075(d)(2) from its SIP submission. The withdrawal letter is included in the docket for this action.9

With respect to the comments about the type of curtailment program and the suggestion that state and local officials provide a fuel oil subsidy, we note that states have discretion in formulating their attainment plans, so long as they meet the applicable requirements of the Act. In the FNSB NAA, Alaska has adopted a number of control measures to address emissions from solid fuel heating devices that are designed to help the area attain the 2006 24-hour PM2.5 NAAQS given the facts and circumstances of this particular area. As we stated in our proposed rule, we believe the mandatory solid-fuel heating device curtailment program in the FNSB Moderate Plan is appropriately suited for the FNSB NAA in that it provides for implementation of a curtailment program that will reduce emissions in a manner that can facilitate program adoption and implementation by the community. 82 FR 9046, February 2, 2017. Again, we anticipate that Alaska will be reexamining its approach to controlling emissions from this source as part of the development of the Serious area attainment plan for the FNSB NAA, in order to identify and adopt BACM/BACT level controls, as appropriate. At that time, Alaska may reevaluate approaches that have been successfully adopted and implemented in other nonattainment areas and new approaches suggested by the public.

Comment 12.c. 18 AAC 50.076. Solid Fuel-fired Heating Device Fuel Requirements; Registration of Commercial Wood Sellers. The commenter generally supported this regulation, which sets forth requirements for fuels that can be used in solid fuel-fired heating devices. However, the commenter expressed concern that it does not require year-round use of “dry” or “seasoned” wood like the Borough ordinance does and stated that the EPA must explicitly approve the Borough ordinance as an enforceable part of the SIP. In addition, the commenter stated that the mandatory component of Alaska's wood seller registration program should apply immediately, not when the area is reclassified to Serious and suggested that Alaska use “a simple” wood moisture content labeling program that identifies the wood as “dry” or “wet.”

Response 12.c. The EPA notes that Alaska included the provision identified by the commenter, Borough code 21.28.030.F, in the FNSB Moderate Plan in its November 23, 2016 supplemental submission. Borough code 21.28.030.F lists the types of fuels that cannot be burned in a solid-fuel heating device. This provision applies at all times and prohibits the burning of wood that has a moisture content greater than 20 percent. The local rules that Alaska included in the FNSB Moderate Plan will become a part of the federally-approved SIP. Accordingly, upon the effective date of this action, Borough code 21.28.030.F will thus become a federally-enforceable component of the SIP applicable in the FNSB NAA.

Regarding the commenter's suggestion that Alaska use a more simplified wood moisture labeling system for this program, such as “dry” or “wet,” we note that states have discretion in formulating their attainment plans, so long as they meet the applicable requirements of the Act. In this instance, we believe that the method of labeling moisture content adopted by Alaska adequately conveys the necessary information to wood users to facilitate the related requirement to burn only dry wood, and thus the alternative form of labelling suggested by the commenter is not required. We are therefore approving Alaska's regulations, including the requirement that wood sellers document three moisture content measurements on the moisture content disclosure. The EPA notes that the mandatory component of Alaska's wood seller registration program was implemented on August 15, 2017.

Comment 12.d. 18 AAC 50.077. Standards for Wood-fired Heating Devices. The commenter supported Alaska's emissions standard for new installations of wood-fired heating devices in 18 AAC 50.077 as a critical step toward improving air quality in the FNSB NAA, but objected to the “scaling of the standard” and asserted that there “should be no exception for small or large devices” and that “devices larger than 350,000 BTUs should be required to meet the same emissions standard.” The commenter also stated that Alaska failed to give a reasonable justification for not strengthening 18 AAC 50.077 by establishing an emission standard for coal burning devices. Additionally, the commenter expressed concern that wood-fired heating devices that do not meet the 18 AAC 50.077 emission standards can be sold if they are to be installed outside the FNSB NAA and that only a written confirmation is required from the buyer stating that the device will be installed and used in an area other than the FNSB NAA. The commenter requested that the address where the non-conforming device will be installed should be included in the confirmation, that the confirmation be notarized, and that sellers be required to keep the confirmation for 5 years. Although not directly related to 18 AAC 50.077, the commenter also stated that the requirement for replacing uncertified wood stoves at time of home sale should be adopted and implemented immediately, rather than set aside for future implementation as a contingency measure in the FNSB Moderate Plan.

Response 12.d. The EPA agrees with the commenter that it is important that solid-fuel heating devices that are to be installed in the FNSB NAA meet stringent emissions standards. Alaska's emissions standards for wood-fired heating devices in 18 AAC 50.077 are similar to, or more stringent than, the EPA's current New Source Performance Standards for new residential wood heaters and hydronic heaters (wood heater NSPS). 80 FR 13672, March 16, 2015. However, we believe the commenter is incorrect in claiming that 18 AAC 50.077 contains exemptions based on device size because all devices are addressed, whether they are rated under 350,000 Btu per hour or greater than 350,000 Btu per hour. The provisions in 18 AAC 50.077(b) and (c) provide emissions standards for devices “rated under 350,000 Btu per hour” for hydronic heaters and wood stoves, respectively, whereas 18 AAC 50.077(d) provides emissions standards for wood-fired heating devices that have a “rated size of 350,000 Btu or greater per hour.” Thus, 18 AAC 50.077 does not contain the exemptions described by the commenter. Additionally, 18 AAC 50.077(b), (c), and (d) each require devices to meet EPA standards or meet the same “particulate matter annual average emission limit of 2.5 grams per hour.”

We disagree with the comment that Alaska did not establish emission standards for new coal-burning device installations in the FNSB Moderate Plan. Although the commenter is correct that 18 AAC 50.077 does not establish such emission standards, the emission standards for “Borough listed appliances” in section 020 of Borough code chapter 21.28 apply to coal heating devices. Additionally, section 030.A prohibits the installation of a solid fuel burning appliance in the FNSB NAA if the appliance is not listed by the Borough. We note that “solid fuel burning appliance” is defined in section 010 to include coal stoves, coal-fired hydronic heaters, and coal-fired furnaces. Alaska adopted Borough code chapter 21.28 sections 010, 020, and 030 into the FNSB Moderate Plan that was submitted to the EPA on November 23, 2016. Upon the effective date of this action, these Borough provisions will be adopted into the federally-approved SIP. Thus, Alaska has imposed emission controls on coal fired stoves in the FNSB NAA sufficient for purposes of the FNSB Moderate Plan. Alaska acknowledged the public health concerns associated with emissions from coal fired stoves in the FNSB Moderate Plan and the EPA anticipates that Alaska will further evaluate potential controls for these sources in the development of the Serious area plan.

We also disagree with the commenter regarding the need to revise the written confirmation requirements in 18 AAC 50.077(f) for sales of wood-fired heating devices to be installed outside of the FNSB NAA to include additional requirements such as notarization and retention of forms. The requirements of 18 AAC 50.077(f) specify that all new wood-fired heating devices to be installed or used in the FNSB NAA must meet certain emission standards and provides that a person who intends to sell or otherwise convey a wood-fired heating device that does not meet those standards must receive written confirmation from the buyer or operator that the device will not be installed or used in the FNSB NAA. The EPA believes that this provision provides sufficient notice (in addition to the regulatory text of 18 AAC 50.077 and other education and outreach efforts conducted by ADEC and the Borough) to potential buyers of the prohibition on such installations in the FNSB NAA and adequately documents their awareness and agreement to comply. Although the additional requirements suggested by the commenter may be helpful, we believe the current requirements devised by Alaska are sufficient.

With respect to the comment that Alaska should implement immediately the requirement for replacing uncertified wood stoves at the time of home sale, rather than implement it as a future contingency measure, the EPA notes that the measure has been implemented. The requirement became effective on June 9, 2017, the effective date of reclassification of the area to Serious. 82 FR 21711, May 10, 2017.10

Comment 12.e. 18 AAC 50.246. Air Quality Episodes and Advisories for PM 2.5. The commenter expressed concerns that compliance with curtailments remain voluntary under the 18 AAC 50.246 provisions for PM2.5 air quality episodes and advisories and that the provisions “do not protect public health in Fairbanks or promote attainment of the 24-hour PM2.5 NAAQS.” The commenter also objected to the lack of a definition for the word “curtailment.”

Response 12.e. First, we disagree with the commenter's concern about the absence of a specific definition of the term curtailment. In Alaska's current SIP-approved regulations and the regulations submitted with the FNSB Moderate Plan, the word “curtailment” is used in a general sense and does not apply to a particular category of sources. Therefore, we do not take issue with the use of the word “curtailment” in 18 AAC 50.246 or the fact that it lacks a specific regulatory definition.

Second, we acknowledge that under 18 AAC 50.246(c)(1), curtailments are voluntary “from any person issued a permit under this chapter whose stationary source's emissions might impact the area subject to the advisory.” Thus, the commenter is correct that compliance with the curtailment contemplated in this provision is voluntary for the affected stationary sources (Alaska defines “stationary source” in AS 46.14.990 as “any building, structure, facility, or installation which emits or may emit a regulated NSR pollutant”). However, we note that 18 AAC 50.246(c)(1) applies only to permitted stationary sources and it applies statewide.

By contrast, Alaska has adopted a mandatory curtailment program for the FNSB NAA that applies to all solid-fuel heating devices in the event that Alaska or the Borough issues an alert based on high ambient PM2.5 levels. Compliance with the solid-fuel heating device curtailment is mandatory, not voluntary. We believe that the provision at 18 AAC 50.075(e), in conjunction with 18 AAC 50.246, provides Alaska authority to prohibit the operation of solid-fuel heating devices in the FNSB NAA. The prohibition on the operation of solid-fuel heating devices issued under 18 AAC 50.075(e) and Borough code 21.28.050 provide Alaska the ability to implement advisories and prescribe actions as a backstop to the Borough's existing solid-fuel heating device curtailment program, which is incorporated in the State Air Quality Control Plan, adopted by reference in 18 AAC 50.030, and is also being adopted into the federally-approved SIP in this action. Specifically, Borough code 21.28.050 requires the issuance of advisories or alerts when PM2.5 concentrations are expected to reach certain levels (defined as Stage 1, Stage 2 and Stage 3). These alerts impose mandatory restrictions on the operation of solid-fuel heating devices in the FNSB NAA, or specified Air Quality Control Zone. Accordingly, both Alaska and the Borough have authority to impose a mandatory curtailment on the operation of solid-fuel heating devices during PM2.5 air quality episodes. See FNSB Moderate Plan III.D.5.11-3.

Comment 12.f. 18 AAC 50.245(b) and (c). Air Quality Episodes and Advisories for Air Pollutants other than PM 2.5. The commenter noted that the current version of 18 AAC 50.245 approved into the Alaska SIP provides that ADEC will declare air quality advisories. In the FNSB Moderate Plan, Alaska has revised the rule to provide that either ADEC “or a local air quality control program” will declare the advisories. The commenter objected to these revisions because “they do not specify a single authority responsible for air alerts” and “there is potential for confusion and inaction.” The commenter also stated that Alaska “should not delegate authority to a local air quality control program that is unwilling or unable to fully implement regulatory requirements.”

Response 12.f. The EPA disagrees that authorizing the relevant local air quality control program (i.e., here the Borough) to declare advisories, as well as ADEC, is an inappropriate revision of the existing SIP. Under 18 AAC 50.245, ADEC or a local air quality control program may declare air quality episodes and advisories for SO2, PM10, and CO.11 The commenter's concern about potential confusion in areas that have a local air quality program, such as the FNSB NAA, is addressed by the requirements of AS 46.14.400, which provides authority for ADEC to authorize local air quality control programs to operate in lieu of ADEC's air quality program. Under AS 46.14.400(d), a cooperative agreement between ADEC and the local air quality district must specify, among other things, the respective duties and enforcement responsibilities of the local air quality district and ADEC. Thus, where a local air quality district has been authorized to administer a local air quality control program and declare alerts, the Memorandum of Understanding (MOU) specifies that responsibility. The MOU between ADEC and the Borough (ADEC-FNSB MOU) was submitted with the FNSB Moderate Plan. FNSB Moderate Plan appendix III.D.5.12-54. It specifies that the Borough will “continue to implement, as needed, the Borough's emergency episode prevention and response plan for CO.” The ADEC-FNSB MOU does not identify the Borough as the authority for declaring alerts for SO2 and PM10, thus ADEC would declare those air alerts. The EPA believes that although 18 AAC 50.245 does not specify one authority for calling SO2, PM10, and CO alerts, the MOU required by Alaska statute adequately specifies the entity responsible for calling alerts when it is not ADEC.

This is a summary of the Order on Reconsideration and Second Report and Order (MF-II Challenge Process Order), WC Docket No. 10-90, WT Docket No. 10-208, FCC 17-102, adopted on August 3, 2017 and released on August 4, 2017. The complete text of this document is available for public inspection and copying from 8:00 a.m. to 4:30 p.m. Eastern Time (ET) Monday through Thursday or from 8:00 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445 12th Street SW., Room CY-A257, Washington, DC 20554. The complete text is also available on the Commission's Web site at http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db0804/FCC-17-102A1.pdf. Alternative formats are available to persons with disabilities by sending an email to [email protected] or by calling the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Regulatory Flexibility Act of 1980, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) of the possible significant economic impact on small entities of the policies and rules adopted in this document. The FRFA is set forth in an appendix to the MF-II Challenge Process Order, and is summarized below. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of this MF-II Challenge Process Order, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).

The MF-II Challenge Process Order contains new and modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new and modified information collection requirements contained in this proceeding.

The Commission will send a copy of this MF-II Challenge Process Order in a report to Congress and the Government Accountability Office pursuant to the Congressional Review Act (CRA), see 5 U.S.C. 801(a)(1)(A).

1. In the MF-II Challenge Process Order, the Commission takes the next step to extend mobile opportunities to rural America by fulfilling its commitment to design a robust challenge process that will direct Mobility Fund Phase II (MF-II) support to primarily rural areas that lack unsubsidized 4G Long Term Evolution (LTE) service. The MF-II challenge process the Commission establishes will be administratively efficient, fiscally responsible, and will enable it to resolve eligible area disputes quickly and expeditiously. This challenge process will begin with a new, one-time collection of standardized, up-to-date 4G LTE coverage data from mobile wireless providers. Interested parties will then have an opportunity to contest an initial determination that an area is ineligible for MF-II support, and providers will then have an opportunity to respond to challenges.

2. In February 2017, the Commission adopted rules to move forward expeditiously to an MF-II auction. The Commission established a budget of $4.53 billion over a term of ten years to provide ongoing support for the provision of service in areas that lack adequate mobile voice and broadband coverage absent subsidies. The Commission further decided that geographic areas lacking unsubsidized, qualified 4G LTE service would be deemed “eligible areas” for MF-II support, and that it would use a competitive bidding process (specifically, a reverse auction) to distribute funding to providers to serve those areas. For the purposes of MF-II, the Commission defined “qualified 4G LTE service” as mobile wireless service provided using 4G LTE technology with download speeds of at least 5 Mbps. The Commission also decided that, prior to an MF-II auction, it would compile a list of areas that were presumptively eligible for MF-II support based on information derived from the Form 477 data submissions and high-cost support disbursement data available from the Universal Service Administrative Company (USAC), and it would provide a limited timeframe for challenges to those initial determinations during the pre-auction process.

3. In order to make more informed decisions on the challenge process, the Commission deferred deciding the specific parameters of the challenge process and instead sought additional comment. Among other things, the Commission sought comment in the Mobility Fund II FNPRM, 82 FR 13413, March 13, 2017, on two potential options—called “Option A” and “Option B”—for a process to challenge the eligibility of areas for MF-II support. “Option A” and “Option B” varied in terms of the initial burdens for filing a challenge and the parameters for evidence submitted during the challenge. The Commission also solicited comment on any additional options and parameters for the MF-II challenge process and made clear that it was not proposing to adopt either “Option A” or “Option B” wholesale, intending instead to adopt the most effective approach and parameters to assemble a “best in class” structure for the challenge process. Seven petitions were filed seeking reconsideration of the Mobility Fund II Report & Order, 82 FR 15422, March 28, 2017, five of which directly bear upon the framework and design of the MF-II challenge process. The Commission addresses in the MF-II Challenge Process Order the portions of the five petitions asking for reconsideration of the framework and design of the challenge process. At this time, the Commission defers addressing the petitions, or portions thereof, requesting reconsideration of aspects of the Mobility Fund II Report & Order outside of the challenge process.

4. As necessary starting points for the challenge process, the Commission first resolves certain issues raised in petitions for reconsideration of the Mobility Fund II Report & Order. Specifically, the Commission reconsiders its decision to use Form 477 data as the basis for determining deployment of qualifying 4G LTE for the map of areas presumptively eligible for MF-II support, and instead grants, in part, a petition for reconsideration seeking a new, one-time collection of data to determine the deployment of qualified 4G LTE for the purposes of the MF-II challenge process. The Commission denies petitions to reconsider its adoption of a 5 Mbps download speed benchmark to identify areas eligible for MF-II support. The Commission also denies petitions for reconsideration that propose including technology choice or collocation as elements in such an eligibility determination.

5. The Commission reconsiders its decision to use Form 477 data as the basis for determining deployment of qualified 4G LTE for the map of areas presumptively eligible for MF-II. At the time of the Mobility Fund II Report & Order, the Commission noted that, despite criticism of using Form 477 data, none of the commenters had identified a better available coverage data source to move forward expeditiously to implement MF-II.

6. A trade association now seeks reconsideration of the Commission's decision to use Form 477 data to determine what areas are covered by qualified 4G LTE for purposes of identifying areas presumptively eligible for MF-II support. The trade association instead offers an industry consensus proposal asking that the Commission undertakes a new, one-time data collection with specified data parameters tailored to MF-II, thus addressing the lack of a better-tailored data source than Form 477.

7. After consideration of petitioner's industry consensus proposal, as well as the record gathered in response to this issue, the Commission reconsiders its decision to use Form 477 data as the basis for determining deployment of qualified 4G LTE for the map of areas presumptively eligible for MF-II support. The Commission instead grants, in part, petitioner's petition for reconsideration proposing a new, one-time collection of data to determine the deployment of qualified 4G LTE for the purposes of MF-II.

8. The Commission observes at the outset that the mobile deployment data collected on Form 477 represent a dramatic improvement over the deployment data previously available on a national scale. On reconsideration, the Commission acknowledges the concerns of commenters, and finds that the use of Form 477 data as the baseline, as currently filed, is likely to result in a significantly longer MF-II challenge process than if the Commission collected data consistent with the petitioner's consensus proposal as the baseline for establishing which areas are presumptively eligible for support.

9. Given the negative impact that using Form 477 data could have in prolonging the MF-II challenge process, and after considering the possibility of quickly acquiring a better-tailored data source than Form 477, the Commission is persuaded by the weight of the record to adopt petitioner's consensus proposal to undertake a new, one-time data collection of 4G LTE coverage maps based on the specific parameters the Commission adopts in the MF-II Challenge Process Order. For purposes of implementing MF-II expeditiously, this collection will provide the Commission and interested parties with the best available starting point for the challenge process. When combined with the high-cost subsidy disbursement data available from USAC, the new data will form the basis of the map of areas presumptively eligible for MF-II support.

10. To reduce the burden on these providers, the Commission requires only those providers that have previously reported 4G LTE coverage in Form 477 and have qualified 4G LTE coverage based on the data specification described below to submit MF-II coverage data. Form 477 filers that do not provide qualified 4G LTE service at the speed benchmark and parameters for MF-II eligibility are not required to submit coverage data as part of the MF-II challenge process collection. Filers that provide service at the benchmark and parameters for MF-II eligibility must submit coverage data. The Commission will use these new coverage data, in conjunction with subsidy data from USAC, to create the map of areas presumptively eligible for MF-II support.

11. In reaching its decision to undertake this effort, the Commission finds that on balance the new coverage data it is collecting should reduce the need for challengers to perform more in-depth testing in certain areas or to file extensive challenges to large geographic areas. Thus, it should reduce the burden on challengers and providers that respond to challenges and allow the Commission to commence the MF-II auction more quickly. In addition, current 4G LTE providers have the best information concerning their coverage footprints based on their propagation models, spectrum, and network infrastructure, and thus are in the best position to provide the Wireless Telecommunications Bureau and the Wireline Competition Bureau (the Bureaus) with data already in their possession, tailored to the purposes of MF-II. This approach also allows the Commission to simplify the challenge process by allowing only challenges that qualified LTE coverage is overstated and not also challenges that such coverage is understated. This approach also permits the Commission to establish various bright line rules for evaluation of the new coverage submissions and of certain challenges that should expedite the final resolution of areas eligible for MF-II support.

12. The Commission also wishes to make clear that only the extent of qualified 4G LTE coverage can be challenged in the challenge process; its decision in the Mobility Fund II Report & Order to rely on USAC high-cost support data for determinations of which areas with 4G LTE coverage are unsubsidized remains unchanged, and subsidy data or determinations are not subject to challenge. In sum, the required data should allow the Commission to achieve its policy goal of proceeding expeditiously to an MF-II auction. Compliance with the required data collection adopted in the MF-II Challenge Process Order is mandatory, and failure to comply may lead to enforcement action, including forfeiture penalties, pursuant to the Communications Act and other applicable law.

13. The Commission affirms that it will use a 5 Mbps download speed benchmark to determine what coverage counts as qualified 4G LTE for the purpose of identifying areas eligible for MF-II support. Using a download speed benchmark of 5 Mbps supports the Commission's primary policy goal of directing its limited MF-II funds to address 4G LTE coverage gaps and expanding 4G LTE coverage to areas that the private sector will not serve without government subsidies.

14. Four petitioners seek reconsideration of some aspect of the Commission's decision to use a 5 Mbps download speed as the benchmark to determine what coverage counts as qualified 4G LTE for the purpose of identifying areas eligible for MF-II support.

15. Despite the fact that providers have used different standards and methodologies to report coverage in their Form 477 data, the nationwide carriers are all generally reporting minimum advertised download speeds of 5 Mbps for their 4G LTE network coverage. Carriers' advertised speeds demonstrate that a consumer can reasonably expect to receive 4G LTE service at a download speed of 5 Mbps in both rural and urban areas. The Commission previously noted that “commenters generally did not discuss the technical requirements of 4G LTE service” but did cite multiple comments on the performance requirement for MF-II recipients. Commenters consistently cited 5 Mbps download as consistent with 4G LTE service but differed on whether a 10/1 Mbps requirement was too aggressive. Similarly, the 2016 Broadband Progress Report found that, even in urban areas, 119.3 million Americans (45 percent) still lack access to 4G LTE with a minimum advertised speed of 10/1 Mbps. Thus, establishing a download speed of 10 Mbps for identifying areas eligible for MF-II support would not reflect the typical consumer experience in urban and rural areas and would direct the Commission's limited funds to areas that are already being served at speeds that are reasonably comparable to what is available in urban areas. The Commission's analysis of available data and the record reflects that consumers in urban areas generally have access to 4G LTE service at a download speed of 5 Mbps. Therefore, this benchmark, coupled with the parameters the Commission adopts in the MF-II Challenge Process Order, serves as a reasonable basis for its analysis of what areas are currently lacking unsubsidized service at an equivalent level.

16. The purpose of the eligibility benchmark is to determine at the outset of MF-II which areas lack service reasonably comparable to current service because they are uneconomic to serve and require subsidies to achieve 4G LTE service. In contrast, the performance benchmark for an MF-II recipient ensures that the Commission's limited universal service funds are used in a fiscally responsible manner to assure that service in eligible areas is reasonably comparable to urban offerings in the future. Setting the eligibility benchmark the same as the performance benchmark would have the counterproductive effect of directing subsidies to areas that are already receiving high levels of service, and consequently providers in those areas could potentially achieve the performance objective in the first year of a ten-year support program. Different eligibility and buildout requirements are consistent with past Commission decisions in the universal service context, and they serve “our objective of ensuring that we target our finite budget to where it is most needed.” To accomplish this objective, the Commission must exercise its discretion to balance competing universal service principles of promoting nationwide deployment of high-speed mobile broadband and spending limited universal service funds in a cost-effective manner.

17. The Commission also rejects petitioners' assertions that it did not provide sufficient analysis to justify using the 5 Mbps download speeds as the eligibility benchmark in light of its expectation that areas found to be ineligible for MF-II support are likely to see improvements in the coming years. The Commission's objective in MF-II, in accordance with the USF/ICC Transformation Order, 76 FR 73829, November 29, 2011, is to subsidize reasonably comparable service in unserved areas, not to subsidize competition. The Commission anticipates that to the extent an area is served by an unsubsidized provider offering qualified 4G LTE service such that the area is not eligible for MF-II support, that unsubsidized service provider will have incentives to continue to invest in its network to maintain and expand its current market position. In addition, the Commission anticipates that as the infrastructure to support high levels of service develops over the ten-year term of MF-II support, the incremental costs of upgrades to service in ineligible areas will become lower, further facilitating improvements in those areas. Even if incentives to invest in unsubsidized areas were lower, with all things being equal, these lower upgrade costs would help offset that effect, and would incentivize service providers to increase their speed offerings in those areas. Furthermore, the Commission notes that the cost of upgrading service is significantly lower than the cost of building a new network in unserved areas or filling in coverage gaps in areas with significant coverage, and thus the Commission anticipates that incentives will continue to encourage upgrades to existing network deployments in unsubsidized areas. Accordingly, the Commission expects reasonable service improvements in ineligible areas because private actors have already demonstrated in the marketplace that they have an incentive to invest in those areas without federal support.

18. Lastly, the Commission declines to adopt an upload speed benchmark to identify areas eligible for MF-II support. Given the nature of mobile wireless deployment and the interplay between download and upload speeds when designing and optimizing an LTE network, there is no single upload edge speed that corresponds to a 5 Mbps download speed. One party, however, has submitted recent LTE speed measurement results showing that with 1 Mbps as the 10th percentile of the upload speed distribution, the standard national compliance, at the non-MSA (metropolitan statistical area) and MSA level, only ranges from approximately 5 percent to 12 percent. This suggests that a cell edge 1 Mbps upload speed standard requirement would exceed the upload speeds of most current LTE service areas. Thus, including a 1 Mbps upload speed benchmark could make eligible for support most areas with current LTE service at download speeds of 5 Mbps. Finally, the Commission also finds that the additional upload speed standard would add unnecessary complexity to the already complex challenge process. The Commission concludes that including a 1 Mbps upload speed benchmark for determining areas eligible for MF-II support would be contrary to its policy goal of directing its limited MF-II resources to areas of the country that lack sufficient services because such a benchmark would expand the areas eligible for support to include areas that already have 4G LTE service, without any countervailing benefit to consumers.

19. The Commission affirms the conclusion it reached in the Mobility Fund II Report & Order that areas with unsubsidized, qualified 4G LTE service are not at risk of losing service and therefore should be ineligible to receive support, regardless of whether the areas have networks that are compatible with both GSM and CDMA. The Commission further affirms its earlier finding that it should not condition limited MF-II support on a requirement that newly deployed 4G LTE networks be backwards compatible with GSM and CDMA network technologies that are being phased out by the marketplace.

20. Two petitioners now seek reconsideration of this issue; they argue that areas that do not have both GSM and CDMA coverage by unsubsidized providers should be eligible for MF-II support. The Commission denies the petitions for reconsideration of this issue. Efficiently distributing MF-II funds and expanding coverage are the Commission's priorities, and it must balance these policy goals against an issue that even one petitioner notes “is one that time and ubiquitous VoLTE deployment will eventually solve.” In the face of a diminishing technological issue, the Commission directs MF-II support in a fiscally-responsible manner by focusing on areas that lack unsubsidized, qualified 4G LTE coverage without considering whether older technologies are compatible. The Commission's gradual phase down of legacy support will provide consumers and carriers with time to complete the transition to newer technologies.

21. The Commission also denies a petitioner's request that it reconsider the basis on which it determines whether qualified 4G LTE deployed in an area is subsidized or unsubsidized. Consistent with the Commission's earlier conclusion, the Commission affirms that it will determine whether a provider that deploys qualified 4G LTE in an area is subsidized or unsubsidized based only on whether it receives high-cost support for that area using USAC high-cost disbursement data, as described in the MF-II Challenge Process Order, and not based on whether that provider collocates equipment on a tower of another provider receiving universal service support. In addition, the Commission will not consider government subsidies other than legacy mobile wireless CETC high-cost support and MF-I support in determining whether a provider's qualified 4G LTE is subsidized.

22. The Commission also notes that the Commission has not collected and does not intend to collect the tower-by-tower data that would be necessary to conduct the analysis proposed by the petitioner because the possible benefits of collecting that data appear small compared to the significant costs of collection and analysis. As part of their Form 477 data filings, mobile wireless carriers submit maps that depict coverage without distinguishing between carrier-owned and collocated facilities. As discussed in the MF-II Challenge Process Order, based on a new, one-time filing of coverage maps provided under standardized parameters, the Commission will determine 4G LTE coverage and establish the areas presumptively eligible for MF-II support. Determining whether coverage depicted in the standardized coverage maps is provided through collocation on an area-by-area basis would be inconsistent with the Commission's decision to base MF-II eligibility strictly on the absence of unsubsidized, qualified 4G LTE, and doing so would impose a significant burden on both carriers and the Commission.

23. Consistent with the Commission's overarching objective to transition quickly away from the legacy CETC support system, it adopts a streamlined challenge process that will efficiently resolve disputes about areas deemed presumptively ineligible for MF-II support. Based on the Commission's review of the record and its comprehensive evaluation of the advantages and disadvantages of the various proposals, the Commission concludes that the approach it adopts will both promote fairness and minimize burdens on interested parties.

24. Under the adopted approach, the Commission will begin with a new, one-time collection of 4G LTE coverage data, which will be used to establish the map of areas presumptively eligible for MF-II support. Specifically, the Commission will require providers to file propagation maps and model details with the Commission indicating their current 4G LTE coverage, as defined by download speeds of 5 Mbps at the cell edge with 80 percent probability and a 30 percent cell loading factor.

25. An interested party (the challenger) will have 150 days to initiate a challenge of one or more of the areas initially deemed ineligible in the Commission's map of areas presumptively eligible for MF-II support (the challenge window). Prior to the close of the challenge window, a challenger may use USAC's online challenge portal (the USAC portal) to (1) access confidential provider-specific information for areas it wishes to challenge; (2) identify the area(s) it wants to challenge; (3) submit evidence supporting the challenge; and (4) certify its challenge for the specified area(s). After agreeing to treat the data as confidential, challengers will be able to access via the USAC portal (a) the underlying provider-specific coverage maps submitted as part of the new data collection; (b) the list of pre-approved provider-specified handsets with which to conduct speed measurements; and (c) any other propagation model details collected as part of the new data collection. To certify a challenge, a challenger will be required to identify the area(s) within each state that it wishes to challenge and submit actual outdoor speed test data collected using standardized parameters. Challengers will submit their challenges via the USAC portal. The Commission directs the Bureaus to work with USAC to establish the USAC portal through which a challenger will be able to access the confidential provider-specific information that is pertinent to the challenge, as well as submit its challenge, including all supporting evidence and required certifications.

26. Once a challenger submits its evidence in the USAC portal, the system will conduct an automatic validation to determine whether the challenger provided sufficient evidence to justify proceeding with each submitted challenge. In the event the data fail automatic validation for an area, the system will flag the problem for the challenger. If the failure occurs while the challenge window is still open, the challenger may submit additional or modified data, or modify its challenged area contours, as required, to resolve the problem. Once the challenge window closes, however, the challenger will have no further opportunity to correct existing, or provide additional, data in support of its challenge. Only those challenges to areas that are certified by a challenger at the close of the window will proceed.

27. A challenged party will have an opportunity to submit additional data via the USAC portal in response to a certified challenge (the response window). If a challenged party does not oppose the challenge, it does not need to submit any information. After the response window closes, Commission staff will adjudicate certified challenges and responses.

28. The Commission finds that, in conjunction with the new data collection, this framework for the MF-II challenge process appropriately balances the need for accuracy against the burdens imposed on interested parties. The Commission anticipates that using standardized new coverage data as the basis for its initial eligibility map will improve the accuracy and reliability of the information available to potential challengers, which should result in fewer, more targeted challenges and should reduce the administrative burdens on Commission staff, challengers, providers, and other stakeholders. Requiring challengers to submit proof of lack of unsubsidized, qualified 4G LTE coverage should deter frivolous challenges based on anecdotal evidence and, thereby, expedite the challenge process. Moreover, allowing, but not requiring, challenged parties to submit data in response to a challenge will both promote fairness and minimize burdens on interested parties.

29. The Commission directs the Bureaus to issue a public notice or order (following the Bureaus' issuance of a notice and opportunity for comment) detailing instructions, deadlines, and requirements for filing a valid challenge, including file formats, parameters, and other specifications for conducting speed tests.

30. In the new, one-time MF-II data collection, the Commission will require providers to file propagation maps and model details with the Commission indicating their current 4G LTE coverage, as defined by download speeds of 5 Mbps at the cell edge with 80 percent probability and a 30 percent cell loading factor. The Commission finds that a download speed of 5 Mbps with 80 percent cell edge probability, which is equivalent to approximately 92 percent cell area probability, and a 30 percent cell loading factor, strikes a reasonable balance between expanding LTE into unserved areas and enhancing existing suboptimal LTE service areas, which promotes the optimal use of limited public funds.

31. The Commission acknowledges that the 80 percent cell edge probability and 30 percent cell loading factor parameters required for the data collection are lower than those proposed in the industry consensus proposal. Adopting the higher cell edge probability and cell loading factor parameters in the industry consensus proposal, however, would increase the likelihood that MF-II funds would be directed to areas that already meet the MF-II performance requirement of a 10 Mbps median download speed. One wireless provider submitted recent LTE speed measurement data analysis based upon nationwide wireless provider performance in specific states. The analysis showed that in some cases less than 2 percent of the data points achieved a 5 Mbps download speed 90 percent of the time. Indeed, the Commission estimates that the cell area median download speed in the cell areas associated with the industry consensus proposal's proposed parameters would be significantly in excess of 10 Mbps and therefore higher than the MF-II performance requirement. In fact, the Commission estimates that areas larger than industry consensus proposal's proposed cell areas would have median download speeds in excess of 10 Mbps. The Commission's analysis shows that the 80 percent cell edge probability it adopts corresponds with a 92 percent cell area probability, which means users would have a greater than 90 percent chance of achieving a download speed of at least 5 Mbps across the entire coverage area of a cell. In addition, these parameters exceed the parameters that wireless operators typically use when deploying networks into previously-unserved areas (greenfield builds) of 75 percent cell edge probability and 90 percent cell area probability. In light of the difficulties of precisely determining the coverage areas where service with a minimum download speed of 5 Mbps is available, the Commission finds that a cell edge probability of 80 percent and a cell area probability of 92 percent appropriately balance the concern of misrepresenting coverage with its priority of directing its limited universal service funds on areas most in need of support. Further, adoption of the industry consensus proposal's proposed parameters would likely result in MF-II support being used to upgrade or over-build current 4G LTE networks rather than to expand 4G LTE coverage to unserved areas.

32. In addition, the Commission believes that a 30 percent cell loading factor in rural areas is more appropriate for MF-II purposes than the industry consensus proposal's proposed 50 percent cell loading factor, which is more typical in non-rural areas where there is more uniform traffic. Typical cell site density in rural areas is much lower than in urban areas, resulting in an overall lower interference environment. Additionally, when compared to urban and suburban areas, rural areas typically have lower amounts of uniform traffic among cells because of the varied population distribution across cells, lower numbers of simultaneous users, and lower overall demands on the network over time. As such, cell loading is typically lower in rural areas than in urban and suburban areas. The lower cell edge probability and cell loading factor parameters for the data collection will likely decrease the eligible areas and target the limited MF-II funds to more areas that are currently unserved or served by 4G LTE networks with a median download speed below 10 Mbps. If the Commission was to adopt a lower cell edge probability, it would unnecessarily risk focusing funds on the costliest to serve areas, thus decreasing the square miles receiving support in the auction and consequently reducing the cost effectiveness of the MF-II program. A lower cell edge probability requirement would likely decrease the eligible areas with marginal LTE coverage. Thus, using its predictive judgment, the Commission finds that these parameters meet its standards for the availability of coverage and are best suited to advancing its goals for MF-II.

33. The Commission recognizes that some may have concerns about the effect of the parameters it adopts on the availability of certain mobile applications, for instance telemedicine and precision agriculture, in rural areas. The Commission believes those concerns are misplaced. Remote monitoring and diagnosing of medical conditions and precision agriculture, which uses satellite GPS positioning and remote sensors in farming operations, are typically lower-bandwidth, machine-to-machine applications and should not significantly increase the overall cell loading or require speeds greater than 5 Mbps. Further, the Commission believes that focusing its limited funds on expanding service to the areas that currently lack 4G LTE service is the best way to increase the availability of these services in rural areas. Applying a higher cell loading factor more typical of an urban or suburban area or increasing the cell edge probability even further is more likely to direct funds to more areas that already have coverage that can support telemedicine and precision agriculture applications.

34. As one party proposed, filers shall report an outdoor level of coverage. The coverage boundaries shall have a resolution of 100 meters (approximately three arc-seconds) or better, and shall likewise use an appropriate clutter factor and terrain model with a resolution of 100 meters or better. In addition, filers shall use the optimized RF propagation models and parameters used in their normal course of business. The Commission directs the Bureaus to specify what other propagation model details and parameters must be filed alongside such propagation maps in a subsequent public notice. In addition to submitting propagation maps and model details of 4G LTE coverage, providers shall report the signal strength (RSRP) and clutter factor categories used to generate their coverage maps. If the signal strength in the coverage maps varies regionally, then such variations must be reported. The providers must report the loss value associated with each clutter factor category used in their coverage maps. Additionally, providers shall submit a list of at least three readily-available handsets that challengers can use to conduct speed tests, as well as a certification, under penalty of perjury, by a qualified engineer that the propagation maps and model details reflect the filer's coverage as of the generation date of the map in accordance with all other parameters. The Commission clarifies that the handsets identified by providers must include at least one compatible with industry-standard drive test software. The Bureaus will issue further guidance or requirements on the handsets that may be used for speed tests in a subsequent public notice.

35. The Commission finds that requiring a specific signal strength benchmark, as sought by several commenters, is not necessary for these propagation maps because the cell edge speed threshold requirement subsumes a specific signal strength value depending on specific operating signal bandwidth and the network deployment configurations. A 10 MHz bandwidth has double the noise power of the 5 MHz bandwidth; thus, it requires higher signal strengths for the same signal quality (SNR) requirement. The thermal noise power equation indicates that noise power is directly proportional to the bandwidth. The Commission's analysis comparing results of theoretical propagation models and actual speed test data indicates that the signal strength parameter in propagation models may not be closely correlated with actual on-the-ground data in a particular geographic area. As a result, and in light of the differing technical characteristics of service providers' LTE deployments, the Commission decides to benchmark download speed, which is what the customer receives, rather than signal strength, to determine whether a particular geographic area is eligible or not for MF-II support. With this in mind, the Commission sets the download speed at 5 Mbps at 80 percent probability, and will evaluate challenges on the basis of measured download speeds. In other words, the topography of an area as well as summer foliage may lead to differences between expected signal strength and the actual experienced speed of consumers. Thus, the Commission's cell edge speed threshold requirement should result in more accurate data in America's deserts, prairies, rolling hills, mountains, and forests than an across-the-board signal strength parameter. The Commission is mindful, however, of the concerns of some providers regarding signal strengths, and the Commission will, as noted above, require providers to report signal strength with their coverage maps. The signal strength information will be available to challengers. When issuing filing instructions, the Commission directs the Bureaus to explain what additional parameters (such as signal strength and clutter categories) and information must be included with coverage map filings, and subsequently disclosed to challengers in the challenge process.

36. In a public notice to be released later in the MF-II process, the Commission directs the Bureaus to provide instructions for how to file the data submission, including a data specification, formatting information, and any other technical parameters that may be necessary for such filings. In order to provide ample time for carriers to generate data in accordance with these parameters, the Commission directs the Bureaus to set the deadline for carriers to submit data for the one-time data collection at least 90 days after the release of the filing instructions public notice.

37. Based on the Commission's experience in the challenge processes for MF-I and CAF-II, and after carefully weighing the record on this issue, the Commission concludes that government entities (state, local, and Tribal) and all service providers required to file Form 477 data with the Commission are best suited to participate as challengers in the MF-II challenge process. Allowing these interested parties to participate in the challenge process satisfies the Commission's policy goal of administrative efficiency because they are most likely to be able to acquire the requisite data sufficient to support a valid challenge and, in many cases, are already familiar with filing data with USAC. Many Form 477 filers have a pre-existing relationship (i.e., an account) with USAC because they are required to make filings on a regular basis with USAC. To the extent that any Form 477 filer or government entity eligible to participate does not have an account with which to authenticate against the USAC single sign-on system by the time the USAC portal opens, such interested parties will be required to request an account. The Commission directs the Bureaus to detail this process along with other instructions to file a valid challenge in a subsequent public notice.

38. As a practical matter, the Commission does not expect that an individual consumer would have the time, ability, or resources to file a valid challenge. Instead, the Commission anticipates that an individual consumer will be best served by participating in the MF-II challenge process through his or her state, local, or Tribal government entity. This expectation is supported by past practice before the agency, as individual consumers did not file challenges in either the MF-I or CAF proceedings. If, however, a consumer, organization, or business believes that its interests cannot be met through its state, local, or Tribal government entity, and it wishes to participate in the process as a challenger, it is free to file a waiver with the Commission for good cause shown, either on its own or with the assistance of an organization. Waivers may be submitted by email to [email protected] or delivered in hard copy to Margaret W. Wiener, Chief, Auctions and Spectrum Access Division, Wireless Telecommunications Bureau, FCC, 445 12th Street SW., Room 6-C217, Washington, DC 20554. The Commission anticipates granting waivers in cases in which an individual, organization, or business demonstrates a bona fide interest in the challenge process and a plausible ability to submit a valid challenge. And the Commission encourages state commissions, state-level broadband deployment offices, county and municipal executives and councils, Tribal governments, and other governmental entities to participate robustly in the challenge process to ensure that the Commission's information about where service is or is not available is as accurate as possible.

39. Moreover, given the improvements the Commission expects to see in the standardized information that will be collected for MF-II purposes, it anticipates that there should be less concern associated with eligible area determinations, which, in turn, should reduce the likelihood that individual consumers should have to bear the burden of seeking to participate in the process. As the Commission explained in the Mobility Fund II FNPRM, “the challenge process must not impede the implementation of MF-II support.” The Commission's decision therefore fosters its commitment to designing a challenge process that is as efficient and open as possible.

40. Because the Commission is undertaking a new collection of standardized, more reliable, and more recent 4G LTE coverage data, it will only permit challenges for areas that the Bureaus identify as ineligible for MF-II support. The Commission anticipates that a party that submits a challenge for an eligible area will likely be the unsubsidized service provider that submitted and certified the data used to make the initial eligibility determination for the challenged area. As such, the challenge would consist of nothing more than an update to or correction of the coverage data submitted by the unsubsidized service provider during the new data collection in compliance with the Commission's new requirements. Since, under the framework the Commission adopts, service providers will be required to update their coverage data shortly before the start of the challenge process, permitting such “corrections” within the challenge process would be administratively inefficient and unnecessarily delay the deployment of MF-II support. The Commission is confident that the new data collection will give providers ample opportunity to correct and/or update the coverage data previously provided via Form 477. Therefore, the Commission will not permit challenges for areas that the Bureaus identify as eligible for MF-II support.

41. As part of the framework the Commission adopts for the MF-II challenge process, it will limit challenges to de minimis geographic areas to increase the efficiency of the challenge process and reduce the administrative complications of resolving challenges for very small coverage gaps. Challengers will not be required to match up challenged areas to census blocks or census block groups (CBGs). The Commission believes this change will ease the filing burden on challengers because the data required will align more closely with data already collected and maintained in the normal course of business. Consistent with this approach, the Commission will not link de minimis challenges to CBGs, because a significant portion of CBGs are small enough (less than 1 square kilometer) that establishing a minimum area for challenges as a portion of a CBG would make the de minimis challenge area so small as to be inconsequential for improving efficiency in the challenge process. Accordingly, the Commission will require only that any challenged area be of a minimum size of at least one square kilometer. Ineligible areas of less than one square kilometer can be subject to challenge insofar as they are part of a challenge where the total size of areas being challenged exceeds the de minimis size requirement. This minimum size requirement will prevent challenges solely regarding minor, patchy areas often at the edge of a covered area, which aligns with the overall goal of using MF-II funds to expand service to unserved areas.

42. The Commission finds that a challenger must submit detailed proof of lack of unsubsidized, qualified 4G LTE coverage in support of its challenge. For each state, a challenger must identify the specific area(s) it wants to challenge and submit actual outdoor speed test data that satisfy the parameters the Commission adopts in the MF-II Challenge Process Order, as well as any other parameters that the Commission or Bureaus may implement. If the challenged area(s) extend across state borders, a challenger will need to initiate separate challenges for each state into which the challenged area(s) extend. The speed test data must be collected using the latest devices specifically authorized by the providers that submitted 4G LTE coverage data in response to the new, one-time data collection discussed above (i.e., provider-specified handsets). The Commission finds that such “on the ground” data collected using standardized parameters are a reliable form of evidence because they simulate consumers' actual experience.

43. These requirements strengthen the Commission's ability to design an administratively efficient challenge process that does not impede implementation of MF-II. The Commission finds that requiring challengers to submit detailed proof of lack of unsubsidized, qualified 4G LTE coverage instead of “anecdotal evidence” is fair, minimizes the burden on providers and Commission staff, and should help deter excessive and unfounded challenges that could delay the deployment of MF-II support. The Commission agrees with several commenters that requiring actual speed test data will not impose an excessive burden on challengers, including small carriers. The Commission expects that challenged areas will be sufficiently circumscribed that challengers will not need to collect speed test data over unnecessarily large areas. Further, the Commission expects that small carriers are likely to already own drive test equipment. To the extent they do not, the Commission's decision to allow application-based tests provides a less expensive and more mobile means of collecting data. Thus, the Commission declines to allow a challenger to initiate the challenge process with an unsubstantiated good-faith assertion of lack of unsubsidized, qualified 4G LTE coverage.

44. Although the Commission agrees with commenters that some flexibility with testing standards is warranted, it finds it necessary to adopt clear guidance and parameters on speed test data to ensure that the evidence submitted by challengers is reliable, accurately reflects consumer experience in the challenged area, and can be analyzed quickly and efficiently. As a preliminary matter, the Commission will allow challengers to submit speed data from hardware- or software-based drive tests or application-based tests that cover the challenged area. To minimize the burdens on challengers, the Commission will not require that an independent third party conduct the speed tests. The Commission will require that all speed tests be conducted pursuant to standard parameters using Commission-approved testing methods on pre-approved handset models. Accordingly, the Commission expects that it would be difficult to manipulate the data collected regardless of whether a challenger uses drive-based or application-based tests as both types of tests can automatically generate data reports that can conform to the specifications for the data submission. The Commission will, however, require that the speed test data be substantiated by the certification of a qualified engineer or official under penalty of perjury. For challengers that are governmental entities and do not have a qualified engineer available to certify, the Commission will allow certification by a government official authorized to act on behalf of the organization and with actual knowledge of the accuracy of the underlying data.

45. A challenger must provide proof of lack of unsubsidized, qualified 4G LTE coverage in the form of measured download throughput test data for each of the unsubsidized providers claiming qualified 4G LTE coverage in the challenged area. As part of the new MF-II data collection, the Commission will require service providers with qualified 4G LTE coverage to identify at least three readily available handset models appropriate for testing those providers' coverage. The Commission will require providers to specify at least one handset that is compatible with industry-standard drive test software. The Commission directs the Bureaus to propose and adopt further guidance on the types of devices that may be used for speed tests in the subsequent public notices. Challengers electing to use application-based tests and software-based drive tests must use the applicable handsets specified by each unsubsidized service provider with coverage in the challenged area. In addition, to accurately reflect consumer experience in the challenged area, the challenger must purchase an appropriate service plan from each unsubsidized service provider in the challenged area. An appropriate service plan would allow for speed tests of full network performance, e.g., an unlimited high-speed data plan. If there are multiple unsubsidized service providers in the challenged area, the challenger must purchase service plans that are comparable (i.e., similar with respect to services provided).

46. All speed tests must be conducted between the hours of 06:00 a.m. and 12:00 a.m. local time, when consumers are most likely to use mobile broadband data. To ensure that the speed test data reflect consumer experience throughout the entire challenged area, a challenger must take speed measurements that are no more than a fixed distance apart from one another within the challenged area, and which substantially cover the entire area. The Commission directs the Bureaus to adopt the specific value for the maximum distance between speed tests after seeking comment in a subsequent public notice. This value will be no greater than one mile. This requirement serves as an upper bound, and a challenger will be free to submit measurements taken more frequently. While the Commission declines to adopt the specific parameter here, it is convinced that a value within this range will strike the correct balance between the benefits of increased accuracy, and the harms of burdens on small carriers and to the efficient administration of challenges. The Commission also agrees with one commenter that the data should reflect recent performance. However, given upcoming, expected deployment of new 4G LTE service in conjunction with the Commission's decision to perform a new data collection, the Commission is concerned that speed measurements taken before the submission of updated coverage maps may not reflect the current consumer experience. Thus, the Commission will only accept data that were collected after the publication of the initial eligibility map and within six months of the scheduled close of the challenge window.

47. The Commission directs the Bureaus to seek comment on and to implement any additional parameters and/or to require the submission of additional types of relevant data, such as signal strength tests, and then to implement any such parameters or requirements as appropriate to ensure that speed tests accurately reflect consumer experience in the challenged area, by issuing an order or public notice providing detailed instructions, guidance, and specifications for conducting speed tests.

48. The Commission adopts a general framework for automatic system validation of a challenger's evidence, and it directs the Bureaus to work with USAC to implement specific parameters for the validation process. Using an automated process is the most efficient way to evaluate the data submitted by a challenger because it ensures that the objective validation criteria are applied consistently across every challenge.

49. Under this approach, at the outset the USAC system will superimpose each identified challenged area on the initial eligibility map and will remove any portions that overlap eligible areas. If a challenged area meets the de minimis area threshold, that challenge will proceed. If it does not meet the threshold, the system will flag the failure and will not accept that challenge for submission unless and until the challenger submits during the challenge window new data that meet the threshold.

50. Next, the USAC system will analyze the geographic coordinates of the points at which the challenger conducted the speed tests and will validate that the data associated with each speed test point meet the specifications for speed tests. To be counted towards a valid challenge, the speed test must record a download speed less than 5 Mbps (counted speed tests) and meet all other standard parameters. In order to implement the requirement that the tests substantially cover the entire challenged area and that each point is no more than a fixed distance apart, the system will create a buffer (i.e., draw a circle of fixed size) around each counted speed test point and calculate the area of these buffered points (speed test buffer area). The system will apply a buffer with a radius equal to half of the maximum distance parameter, and will trim any portion of the buffer that is outside of the challenged area. In addition, where a challenged area overlaps the submitted coverage map of more than one incumbent provider, the system will require counted speed tests for each provider in order to calculate the speed test buffer area. For each challenged area, if the speed test buffer area covers at least 75 percent of the challenged area, the challenge will pass validation, and once certified, these challenged area(s) will be presented to the incumbent provider(s) for a response. The area of a circle with diameter superimposed on a square with width is approximately 78.5 percent, therefore setting the validation threshold at 75 percent area coverage ensures that speed measurements conducted no more than a fixed distance apart from one another in a challenged area are sufficient to establish coverage of the entire area, when each measurement point is buffered by a radius of half of the fixed distance parameter. If the speed test buffer area does not cover at least 75 percent of the challenged area, the challenge for that area will fail validation unless the challenger submits new evidence or modifies its challenge during the challenge window such that it meets the 75 percent threshold.

51. The USAC system will require speed tests to substantially cover the entire challenged area (i.e., 75 percent) regardless of any characteristics of the area, including whether any part of the area is inaccessible due to terrain, private property, or other reason. The Commission declines to provide any special accommodations for a challenger to indicate that it was unable to access any part of the challenged area. Challengers have the burden of proving that an area deemed ineligible is, in fact, not covered by at least one carrier providing qualified, unsubsidized 4G LTE service. Providing special accommodations that would relieve challengers of the need to furnish actual evidence would be inconsistent with this decision, would be difficult to administer, and would increase the likelihood of gamesmanship, none of which further the Commission's goal of conducting a fair and efficient challenge process in a timely manner. The Commission notes that while the system will not provide any special accommodations, challengers may still include areas with inaccessible land in their challenges so long as the submitted speed measurements otherwise meet the validation threshold showing that 75 percent of the area has insufficient coverage. Moreover, this decision is confined only to the challenge process; a bidder in the MF-II auction may still bid for support to serve eligible areas that include land that may be inaccessible. A bidder that ultimately wins support to serve an area with inaccessible lands will remain responsible for demonstrating its performance in serving that area.

52. Each challenged area that meets the de minimis threshold will be considered individually. Challenged areas that meet the validations, including the 75 percent speed test buffer area overlap, will proceed once certified by the challenger. The USAC system will determine which portions of a challenged area overlap which 4G LTE providers, and respondents will see only those challenged areas and speed test buffer areas that overlap their 4G LTE coverage.

53. The Commission will provide challenged parties a limited opportunity to submit additional data in response to a challenge. The Commission finds that this approach promotes its goals of a fair and fiscally responsible MF-II program while minimizing the burdens on challenged parties. Giving challenged parties an opportunity to contest a challenge and submit more detailed coverage data to supplement the information provided during the initial data collection will help to ensure that only areas truly lacking unsubsidized, qualified 4G LTE coverage will receive MF-II support.

54. After the challenge window closes, the response window will open. Using the USAC portal, challenged parties will have 30 days after the opening of the response window to: (1) Access and review the data submitted by the challenger with respect to the challenged area; and (2) submit additional data/information to oppose the challenge (i.e., demonstrate that the challenger's speed test data are invalid or do not accurately reflect network performance). If a respondent chooses to respond, it need only conduct speed tests of its own network (or gather its own geolocated, device-specific data from network monitoring software) in the disputed areas, which should require less time to complete than a challenger testing multiple networks in multiple areas for data to substantiate a valid challenge. Hence, the Commission agrees with commenters that propose that the response window does not need to be open for the same amount of time as the challenge window. If a challenged party does not oppose the challenge, it does not need to submit any additional data. A challenged party will not, however, have a further opportunity to submit any additional data for the Commission's consideration after the response window closes.

55. The Commission declines to require a specific level of response from challenged parties. The Commission will accept certain technical information that is probative regarding the validity of a challenger's speed tests including speed test data and other device-specific data collected from transmitter monitoring software. If a challenged party chooses to submit its own speed test data, the data must conform to the same standards and requirements the Commission adopts in the MF-II Challenge Process Order for challengers, except that it will only accept data from challenged parties that were collected after the publication of the initial eligibility map and within six months of the scheduled close of the response window. Any evidence submitted by a challenged party in response to a challenge must be certified by a qualified engineer or official under penalty of perjury. Since the Commission is not requiring a specific level of response from challenged parties, the response data will not be subject to USAC's automatic system validation process.

56. Although the Commission is willing to accept certain technical data that are probative regarding the validity of a challenger's speed tests, the data must be reliable and credible to be useful during the adjudication process. Specifically, technical data other than speed tests submitted by a challenged party, including data from transmitter monitoring software, should include geolocated, device-specific throughput measurements or other device-specific information (rather than generalized key performance indicator statistics for a cell-site) in order to be useful to help refute a challenge. The Commission agrees with commenters that “on the ground” data collected using standardized parameters are a reliable form of evidence because they simulate what consumers actually experience. Thus, the Commission expects that speed test data would be particularly persuasive evidence for challenged parties to submit to refute a challenge, especially since it will be easier for the Bureaus to compare equivalent data. While the system will not validate a challenged party's response data, to be probative in order to refute a challenge, speed tests must record a download speed of at least 5 Mbps and meet all other standard parameters.

57. The Commission directs the Bureaus to issue an order or public notice implementing any additional requirements that may be necessary or appropriate for data submitted by a challenged party in response to a challenge. Such order or notice will contain any further detailed instructions, guidance, and specifications for responding to a challenge.

58. Consistent with the standard of review adopted in the Connect America Fund Report & Order, 78 FR 38227, June 26, 2013, and the CAF II Challenge Process Order, 78 FR 32991, June 3, 2013, the Commission adopts a preponderance of the evidence standard to evaluate the merits of any challenges. Additionally, the Commission adopts its proposal that the challenger shall bear the burden of persuasion. If, upon review of all the evidence submitted in the challenge, it appears that the challenger has not submitted sufficient evidence to demonstrate that it is more likely than not that the challenged area does not have qualified LTE coverage, the challenge will fail under this standard. Following the close of the response window, the Bureaus will adjudicate certified challenges based upon this standard and the evidence submitted by the challenger and challenged party(ies) to determine whether adjustments to the initial eligibility map are appropriate. The Bureaus will weigh the evidence submitted by challengers and challenged parties based on its reliability, giving more credence to data that were collected pursuant to the parameters established in the MF-II Challenge Process Order and any additional standards that the Commission or Bureaus may adopt. The Commission retains discretion to discount the weight of a challenger's evidence if a challenge appears designed to undermine the goals of MF-II. Particularly in light of the steps the Commission has taken to address questions about the reliability of Form 477 data in response to the comments, the Commission concludes that it is appropriate that the burden rest on the challenger. The Commission finds that placing the burden of proof on the challenger both incentivizes challengers to present a full evidentiary record as well as discourages frivolous filings, thus supporting its goal of administrative efficiency and allowing for disbursement of support to unserved areas without unreasonable delay.

59. With respect to the evidentiary standard, comments submitted in the record support a preponderance of the evidence standard, and no commenters supported the higher standard of clear and convincing evidence. The preponderance of the evidence standard of review is consistent with the CAF challenge processes, as well as with a wide body of Commission precedent. A more demanding standard would impose an evidentiary burden that is in tension with the Commission's overall goal of making the most accurate determinations based on the evidence of record. The Commission finds that applying a preponderance of the evidence standard strikes the appropriate balance, potentially reducing the number of disputed areas and ensuring that the Commission has the data necessary to evaluate the merits of any challenges, while not unduly burdening smaller providers.

60. The MF-II Challenge Process Order contains new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new information collection requirements contained in this proceeding. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, it previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees. The Commission describes impacts that might affect small businesses, which include most businesses with fewer than 25 employees, in the Final Regulatory Flexibility Analysis (FRFA) in Appendix A of the MF-II Challenge Process Order.

61. The Commission will send a copy of the MF-II Challenge Process Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act.

62. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Further Notice section of the Mobility Fund II FNPRM adopted in February 2017. The Commission sought written public comment on the proposals in the Mobility Fund II FNPRM including comment on the IRFA. The Commission received three comments in response to the IRFA. The Commission also included a Final Regulatory Flexibility Analysis (FRFA) in the Report and Order section of the February 2017 Mobility Fund II Report and Order. Seven petitions for reconsideration, one comment in support of a petition for reconsideration, two oppositions to the petitions, and six replies to the oppositions were received by the Commission in response to the Mobility Fund II Report and Order. This FRFA addresses the comments on the IRFA and analyzes the modifications adopted in response to the petitions, comments, and responsive filings to the Mobility Fund II Report and Order. This FRFA conforms to the RFA.

63. Rural and high-cost areas of the United States trail significantly behind urban areas in the growth of 4G LTE service. The Mobility Fund Phase II (MF-II) will use a market-based, multi-round reverse auction and allow the Commission to redirect its limited resources to those areas of the country lacking unsubsidized, qualified 4G LTE service.

64. In the MF-II Challenge Process Order, the Commission adopts procedures for a challenge process to supplement its coverage maps by providing an opportunity for interested parties to provide up-to-date LTE coverage data to determine a map of areas presumptively eligible for MF-II support. Interested parties will have the ability to contest this initial determination that an area is ineligible for MF-II support because an unsubsidized service provider submitted data that demonstrates it is providing qualified 4G LTE service there. The challenge process adopted in the MF-II Challenge Process Order enables the Commission to resolve eligible-area disputes in an administratively efficient and fiscally responsible manner.

65. The Commission received one comment, one reply comment, and one written ex parte submission bearing on the IRFA. CCA and RWA believe that a challenge process without a required data collection would better fulfill the directive of the RFA. NTCA similarly expressed concern that requiring all providers, including small entities, to file new Form 477 data to determine eligibility for MF-II support by area would be unnecessary and contrary to the directive of the RFA.

66. The Commission is sensitive to the burden on small entities and other providers associated with the new data collection. However, the benefits of standardized, reliable data on which to base eligibility determinations outweigh the costs associated with their collection. Moreover, the use of newly collected data enables the Commission to adopt a streamlined challenge process that will reduce the burden on challengers and providers that respond to challenges. Fewer small providers will be forced to bring a challenge, and challenges will be more directed, more accurate, and less onerous because the Commission will have the best-available starting point of standardized data. The Commission also eases the burden of the new data collection on small entities by limiting the one-time data collection to providers who have previously reported 4G LTE coverage in Form 477 and have qualified 4G LTE coverage. The limited scope of the collection addresses the concerns of some of the smaller providers who objected to the potential burden of a universal new filing. The Commission has eased the burden of the collection by only requiring a filing from those who have easy access to the necessary data. Additional steps taken to minimize the burden of the challenge process on small entities are discussed below.

67. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule(s) and to provide a detailed statement of any change made to the proposed rule(s) as a result of those comments.

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

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

70. Small Entities, Small Organizations, Small Governmental Jurisdictions. The Commission's actions, over time, may affect small entities that are not easily categorized at present. The Commission therefore describes here, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry-specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9 percent of all businesses in the United States which translates to 28.8 million businesses. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,215 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data for 2012 indicate that there were 89,476 local governmental jurisdictions in the United States. The Commission estimates that, of this total, as many as 88,715 entities may qualify as “small governmental jurisdictions.” Thus, the Commission estimates that most governmental jurisdictions are small.

71. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities.

72. The Commission's own data—available in its Universal Licensing System—indicate that, as of October 25, 2016, there are 280 Cellular licensees that will be affected by its actions. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to internally developed Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service, and Specialized Mobile Radio Telephony services. Of this total, an estimated 261 have 1,500 or fewer employees, and 152 have more than 1,500 employees. Thus, using available data, the Commission estimates that the majority of wireless firms can be considered small.

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

74. In the MF-II Challenge Process Order, the Commission adopts parameters both for establishing an eligible area baseline prior to the MF-II challenge process and for a streamlined challenge process. The process will efficiently resolve disputes about areas shown as eligible for MF-II support on the initial eligibility map that will be generated based on the new collection of 4G LTE coverage data. The Commission summarizes the reporting and other obligations of the MF-II challenge process in the accompanying MF-II Challenge Process Order. Additional information on these requirements can be found in the MF-II Challenge Process Order at paragraphs 27-63.

75. To establish the map of areas presumptively eligible for MF-II support, all current Form 477 filers that have previously reported qualified 4G LTE coverage and have qualified 4G LTE coverage based on the data specification set forth in the MF-II Challenge Process Order will be required to submit to the Commission a one-time new data filing detailing 4G LTE coverage. Providers will be required to file propagation maps and model details indicating current 4G LTE coverage, as defined by download speeds of 5 Mbps at the cell edge with 80 percent probability and a 30 percent cell loading factor. Filers should report an outdoor level of coverage. The coverage boundaries shall have a resolution of 100 meters (approximately three arc-seconds) or better and shall likewise use an appropriate clutter factor and terrain model with a resolution of 100 meters or better. Providers shall report the signal strength (RSRP) and clutter factor categories used to generate their coverage maps. If the signal strength in the coverage maps varies regionally, then such variations must be reported. The providers must report the loss value associated with each clutter factor category used in their coverage maps. In addition, filers should use the optimized RF propagation models and parameters that they have used in their normal course of business, subject to further requirements set forth in subsequent public notices. Carriers will be required to submit data for the one-time collection at least 90 days after the release of the filing instructions public notice.

76. In conjunction with submitting propagation maps, model details, and signal strength of 4G LTE coverage, providers will submit a list of at least three readily-available handset models appropriate for challengers wishing to conduct a speed test of the providers' coverage in a particular area, and a certification, under penalty of perjury, by a qualified engineer or government official that the propagation map and model details reflect the filer's coverage as of the generation date of the map in accordance with all other parameters. For challengers that are governmental entities and do not have a qualified engineer available to certify, the Commission will allow certification by a government official authorized to act on behalf of the organization and with actual knowledge of the accuracy of the underlying data.

77. To initiate a challenge, a challenger must, within the 150-day challenge window: (1) Access confidential, provider-specific information for areas it wishes to challenge; (2) identify the areas(s) it wishes to challenge; (3) submit evidence supporting the challenge; and (4) certify its challenge for the specified area(s). Only service providers required to file Form 477 data and government entities (state, local, and Tribal) have standing to initiate a challenge. Challengers other than government entities and service providers required to file Form 477 data with the Commission, who are not already represented by another interested party, may file a waiver request with the Commission to participate in the MF-II challenge process for good cause shown. Only challenges for areas that the Bureaus identify as presumptively ineligible for MF-II support will be permitted.

78. Challengers must submit their challenges to areas identified as ineligible for support via an online challenge portal to be operated by the Universal Service Administrative Company (USAC). A challenger will be required to identify the area(s) that it wishes to challenge for each state. The Commission will require that any challenge be of a minimum size of at least one square kilometer.

79. Challengers will also be required to submit actual outdoor speed test data that satisfy the parameters outlined below and any others the Commission or Bureaus may implement. Speed test data must be collected using provider-specified handsets, and substantiated by the certification of a qualified engineer or, in the case of a government entity, a government official under penalty of perjury.

80. A challenger must provide detailed proof of lack of unsubsidized, qualified 4G LTE coverage in support of its challenge with speed test data for each of the providers claiming qualified 4G LTE coverage in the challenged area. The Commission will allow challengers to submit speed data from hardware or software-based drive tests or application-based tests that spatially cover the challenged area. All speed tests must be conducted between the hours of 06:00 a.m. and 12:00 a.m. local time, when consumers are likely to use mobile broadband data. A challenger must take speed measurements that are no more than a fixed distance apart from one another within the challenged area, and which substantially cover the entire challenged area. This fixed distance parameter will be a value no greater than one mile, and will be set by the Bureaus in a subsequent public notice. The Commission will only accept data that were collected after the publication of the initial eligibility map and within six months of the scheduled close of the challenge window.

81. Challengers electing to use application-based tests must use the applicable handsets specified by each service provider servicing any portion of the challenged area. The challenger must purchase a service plan from each unsubsidized service provider in the challenged area. If there are multiple unsubsidized service providers in the challenge area, the challenger must purchase service plans that are comparable (i.e., similar with respect to cost and services provided).

82. Once a challenger has submitted its evidence in the USAC MF-II portal, the system will automatically conduct a validation to determine whether the evidence is sufficient to justify proceeding with the challenge. The USAC system will superimpose each challenger's identified challenged area on the initial eligibility map and will remove any portions that overlap eligible areas. A challenged ineligible area must meet the de minimis area threshold to move forward in the challenge process. If the challenged area does not meet the threshold, the system will flag the failure and will not accept the challenge for submission unless and until the challenger submits during the challenge window new data that meet the threshold. Then, the USAC system will analyze the geographic coordinates of the points at which the challenger conducted the speed tests to validate whether the speed test data show measurements of download speed less than 5 Mbps (counted speed tests) and meet all other standard parameters. In order to implement the requirements that each point is no more than a fixed distance apart and that the measurements substantially cover the entire challenged area, the system will create a buffer around each counted speed test point and calculate the area of these buffered points (speed test buffer area). The system will apply a buffer with a radius equal to half of the maximum distance parameter and will trim any portions of the buffers that are outside the challenged area. Where a challenged area overlaps the submitted coverage map of more than one incumbent provider, the system will require counted speed tests for each provider in order to calculate the speed test buffer area. If the speed test buffer area within each challenged area covers at least 75 percent of the challenged area, the challenge will pass validation, and once certified, the challenged area(s) will be presented to the incumbent provider(s) for a response. If the speed test buffer area does not cover at least 75 percent of the challenged area, the challenge for that area will fail validation unless the challenger submits new evidence or modifies its challenge during the challenge window such that the challenge for that area meets the 75 percent threshold. Each challenged area that meets the de minimis threshold will be considered individually. The USAC system will determine which portions of a challenged area overlap which 4G LTE providers, and respondents will see only those challenged areas and speed test buffer areas that overlap their 4G LTE coverage.

83. Once the challenge window closes, challenged parties will have a limited opportunity to submit additional data in response to a challenge. Using the USAC portal, a challenged party will have 30 days after the opening of the response window to: (1) Access and review the data submitted by the challenger with respect to the challenged area; and (2) submit additional data/information to oppose the challenge. The Commission will accept certain technical information that is probative to the validity of a challenger's speed tests, including, but not limited to speed test data and device-specific data collected from transmitter monitoring software. If a respondent chooses to respond, it need only conduct speed tests of its own network (or gather its own geolocated, device-specific data from network monitoring software) in the disputed areas. If a challenged party chooses to submit its own speed test data, the data must conform to the same standards and requirements the Commission adopts for challengers. Any evidence submitted by a challenged party in response to a challenge must be certified under penalty of perjury. Response data will not be subject to the USAC's automatic system validation process. A challenged party may choose not to oppose the challenge in which case no additional information will be required. A challenger bears the burden of persuasion and the merits of any challenge will be evaluated under a preponderance of the evidence standard.

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

85. The Commission has considered the economic impact on small entities in reaching its final conclusions and taking action through this proceeding. In the Mobility Fund II FNPRM, the Commission sought comment on the parameters for the challenge process for MF-II. The Commission acknowledged that any challenge process would necessarily involve tradeoffs between the burden on interested parties and the Commission and the timeliness and accuracy of final determinations. The Commission sought specific comment on the ways it could reduce the burden on smaller providers.

86. In the MF-II Challenge Process Order, the Commission amends its decision to use a parties' most recent Form 477 data and will instead supplement its coverage maps by providing an opportunity for interested parties to provide up-to-date LTE coverage data to determine an initial map of potentially eligible areas for MF-II support. This amended data baseline, in response to concerns regarding the lack of standardization and reliability of Form 477 data for the purpose of determining coverage meeting the MF-II eligibility benchmark, is intended to provide the Commission and interested parties with the best available starting point of standardized coverage data. In building on this baseline, the procedures the Commission adopts in the MF-II Challenge Process Order will provide greater certainty and transparency for entities participating in the MF-II challenge process, including small entities. In the Mobility Fund II FNPRM, the Commission sought comment on two options, “Option A” and “Option B” for the challenge process, and invited alternative options for the challenge process.

87. “Option A” allowed a challenge to be made on a good-faith belief, based on actual knowledge or past data collection, that 4G LTE coverage was not available in an area as depicted by Form 477 filings. Carriers and state and local governments would be eligible to participate. The Commission sought comment on what evidence, if any, should be required in support of a challenge, whether or not it should require a challenged area to reach a minimum size threshold, whether challenges should be allowed for areas marked as eligible, and how and when challenged providers could respond and with what evidence of coverage.

88. “Option B” gave challenging parties 60 days following the Commission's release of a list of eligible areas to submit evidence, which would include speed test data and shapefile maps and be filed in the public record, contesting the eligibility status of an area. Service providers and governmental entities located in or near the relevant areas would be eligible to participate. Challenged providers would then have 30 days to respond with their own speed tests and shapefile maps. The Commission sought comment on what requirements should be imposed for speed tests and on the burden of requiring such a level of response from challenged providers.

89. The Commission explained that it intended to assemble a “best in class structure” from the proposed options and made it clear the Commission did not intend to adopt either option wholesale. The Commission believes the challenge process procedures adopted today are the “best in class” and will both promote fairness and minimize burdens on small entities and other interested parties.

90. Given the concerns voiced in the comments regarding the lack of standardization and the reliability of using Form 477 data for MF-II purposes, a collection of new data will ultimately lead to a less onerous and more efficient challenge process for small entities and other MF-II participants. The challenge process will be streamlined using universal, standardized coverage data. These data are already in the possession of current providers who are therefore in the best position to provide data to the Bureaus. Current providers of unsubsidized, qualified 4G LTE coverage, including small businesses, will benefit by filing their coverage data under the standardized parameters adopted in the MF-II Challenge Process Order because they can establish their coverage areas as initially ineligible to competitors seeking subsidies in the MF-II auction.

91. Use of newly collected data enables the Commission to adopt a streamlined challenge process that will ease the burden of submission and resolution of challenges to the map of presumptively eligible areas. Because the map of presumptively eligible areas will be established using current, standardized data, challengers will be able to target fewer areas to challenge and reduce the need for more in-depth testing in certain areas. This in turn should reduce the burden on challengers and providers that respond to challenges. The Commission also limited the new, one-time data collection to providers who have previously reported 4G LTE coverage in Form 477 and have qualified 4G LTE coverage. The limited scope for the collection eases the burden by only requiring a filing from those who have easy access to the necessary data.

92. The Commission has taken a number of steps to reduce the burden on small entities and other parties participating in the challenge process while also collecting the information required to target areas without qualified 4G LTE coverage. For example, the Commission limits the types of challenges and will only accept challenges for areas identified by the Bureaus as ineligible for MF-II support. Because the data for the map of presumptively eligible areas are supplied by service providers, the Commission believes a challenge to an eligible area would likely be a correction by the service provider who supplied the initial data. The Commission will not require challengers to match up their challenged areas to census blocks or census block groups as proposed in the Mobility Fund II FNPRM. The Commission will allow challenges from government entities (state, local, and Tribal) and all service providers required to file Form 477 data with the Commission, limiting the process to those parties with an adequate interest who are likely to have the knowledge and expertise to make the requisite submission. The Commission does not include consumers as challengers in the MF-II process and believe consumers are best suited to participate in the MF-II challenge process through a state, local, or Tribal government entity. If a consumer, organization, or business believes that its interests cannot be met through its state, local, or Tribal government entity, and it wishes to participate in the process as a challenger, it is free to file a waiver with the Commission for good cause shown, either on its own or with the assistance of an organization. These limits promote an efficient challenge process and prevent unnecessary delay of the deployment of MF-II support.

93. The Commission also requires that challenges be a minimum size of at least one square kilometer. By including a minimum size requirement for challenges, the Commission believe small businesses and all interested parties will benefit from a streamlined challenge process. The Commission rejected smaller alternatives to the size of the minimum challenge area. Making the minimum zone smaller than one square kilometer would make the area so small as to be inconsequential for improving efficiency for the challenge process. Ineligible areas of less than one square kilometer can be subject to challenge insofar as they are part of a challenge where the total size of the areas being challenged exceeds the de minimis size requirement. The minimum size requirement for a partial area challenge will prevent challenges solely regarding minor, patchy areas often at the edge of a covered area.

94. The MF-II Challenge Process Order adopts specific types of data needed to support a challenge, including actual outdoor download speed test data. The MF-II Challenge Process Order also adopts parameters around the type and number of handsets tested, service plan types, hours during which the tests must be completed, frequency of tests, and timing of tests in relation to the submission of the challenge. Standardizing the data-collection parameters will lead to a more efficient and accurate process, deter excessive and unfounded challenges, and minimize the burden on small business challengers as well as other parties utilizing the challenge process. In requiring the submission of standardized data, the Commission allows challengers to use drive-based or application-based tests to generate the necessary data reports. In addition, the Commission is not requiring that an independent third party conduct the speed tests. Given the parameters for speed test data, along with the required certification, the Commission believes the flexibility afforded by allowing different testing methods limits the burden on small businesses. The MF-II Challenge Process Order also adopts an automatic system of validation of a challenger's evidence. This automatic validation system ensures that the evidence is reliable and accurately reflects consumer experience in the challenged area, and can be analyzed quickly and efficiently. Challenged parties are also given a limited opportunity to respond to challenges. If a challenged party does not oppose the challenge, it does not need to submit any additional data. To reduce the burden on challenged parties, the Commission declines to require a specific level of response from challenged parties.

95. The Commission will send a copy of the MF-II Challenge Process Order, including this FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the MF-II Challenge Process Order, including this FRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

96. The Commission orders the following, pursuant to the authority contained in sections 1, 2, 4(i), 5, 10, 201-206, 214, 219-220, 251, 254, 256, 303(r), 332, 403, 405, and 503 of the Communications Act of 1934, as amended, and section 706 of the Telecommunications Act of 1996, 47 U.S.C. 151, 152, 154(i), 155, 160, 201-206, 214, 219-220, 251, 254, 256, 303(r), 332, 403, 405, 503, 1302, and sections 1.1 and 1.429 of the Commission's rules, 47 CFR 1.1 and 1.429:

• The Order on Reconsideration and Second Report and Order is adopted. It is the Commission's intention in adopting these procedures that if any of the procedures that the Commission retains, modifies, or adopts herein, or the application thereof to any person or circumstance, are held to be unlawful, the remaining portions of the procedures not deemed unlawful, and the application of such procedures to other persons or circumstances, shall remain in effect to the fullest extent permitted by law.

• The parameters set forth in the Order on Reconsideration and Second Report and Order for the Mobility Fund Phase II challenge process, along with all associated requirements also set forth therein, go into effect October 10, 2017, except for the new or modified information collection requirements in the challenge process that require approval by the Office of Management and Budget (OMB). The Commission will publish a document in the Federal Register announcing the approval of those information collection requirements and the date they will become operative.

• The Petition for Reconsideration and Comments filed by CTIA on April 26, 2017, is granted in part to the extent described herein.

• The Petition for Reconsideration and/or Clarification filed by the Rural Wireless Association, Inc. on April 12, 2017, is denied as described herein.

• The Petition for Reconsideration filed by Panhandle Telephone Cooperative, Inc. and Pine Belt Cellular, Inc. on April 27, 2017, is denied as described herein.

• The Petition for Reconsideration and Clarification filed by Rural Wireless Carriers (i.e., United States Cellular Corporation, East Kentucky Network, LLC d/b/a Appalachian Wireless, Cellular Network Partnership d/b/a Pioneer Cellular, NE Colorado Cellular, Inc. d/b/a Viaero Wireless, Nex-Tech Wireless, LLC, and Smith Bagley, Inc.) on April 27, 2017, is denied as described herein.

• The Petition for Reconsideration and/or Clarification filed by the Blooston Rural Carriers on April 27, 2017, is denied as described herein.

• The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the Order on Reconsideration and Second Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.